:: O R D E R ::
(BY Smt. K. Vinaya Kumari, Lady Member)
1. THIS IS A COMPLAINT FILED U/SEC.12 OF Consumer Protection Act, 1986.
2. The brief facts of the complaint are.,
3. The Complainant is a business man and is running Sai Navya Video Vision at Weekly Bazaar Nizamabad since several years. The complainant purchased Videocon inverter battery model VBL 15 F18WG1AJ serial No. AJ 10610200710078 from op on 23-01-2011 and paid consideration of Rs. 26,000/- on the same day to the op and the said model has warranty for eighteen months. The op promise to replace the same if there is any problem with the battery within warranty period.
The complainant used the inverter battery for some days. To the dismay of the complainant the inverter battery started giving trouble and hence gave complainant to the op on 12-3-2012 at 7.30Pm vide complaint No. 1203120173. Subsequently again on 19-03-2012, 10-4-2012, 12-04-2012 and on 18-06-2012 the complainant gave complaint to the op vide separate complaint Nos as there was problem with the functioning of the battery on the above dates. But the op neither took any action nor replaced the battery inspite of giving complaint number of times. The op company dealer also vacated the shop at Nizamabad.
The complainant gave legal notice to the op on 6-7-2012 by registered post. Though the op received the legal notice did not give any reply to the notice till filing of the complaint. However the op agent approached the complainant and requested to accept fifty percent of the cost of battery but the complainant did not accept the offer.
Due to the acts of the op the complainant suffered mentally and financially. Therefore approached the Forum with a prayer to direct the op to pay Rs. 26,000/- the cost of the inverter, compensation of Rs. 15,000/- towards mental agony and suffering and Rs. 11,600/- towards damages @ 24% per annum from the date of purchase totaling to Rs. 87,000/- along with court fees of Rs. 100/-.
4. Though the notice was served on op there was no representation on behalf of op hence op was set exparte on 15-11-2012.
5. During the enquiry the complainant filed his chief affidavit as PW1 in lieu of evidence and got marked Ex.A1 to A5 documents.
6. Inspite of giving sufficient and reasonable time no arguments were advanced by the complainant counsel hence the Forum deemed it that there are no arguments on behalf of complainant.
7. The points arise for consideration,
- Whether the complainant is a Consumer Under Consumer Protection Act? Whether the complaint is maintainable?
- Whether the complainant is entitled for any reliefs prayed for?
8. POINT NO.1
The affidavit evidence of the complainant along with Ex.A1, A2 .A3, A4 and A5 substantiate the version of the complaint that the complainant purchased Inverter Battery on 23-01-2011 for Rs. 26,000/- (EX.A5) from op dealer. As per (EX.A3) the complainant gave complaint on 12-3-2012, 19-3-2012, 10-4-2012, 12-4-2012, 15-5-2012,01-05-2012,8-6-2012, 11-6-2012 and 1-7-2012 vide different complaint Nos to the op. As per Ex.A1 the battery has eighteen months warranty. As per EX.A2 the complainant gave legal notice to the op asking to return Rs. 26,000/- the cost of the inverter along with interest @ 24% per annum vide acknowledgement (Ex.A4 ).
The allegation of the complainant is that the op did not respond to his complaint on several times about functioning of the inverter battery. The op neither took any action nor replace the battery though he complained about the non functioning of the inverter battery on several times on different dates though the battery has eighteen months warranty. The op remained exparty to the proceedings.
The core question that arises for determination is whether the complaint fall within the definition of a consumer under consumer protection Act.
Section 2(1)(d)(i) & (ii) of the consumer protection act reads as under :
“(d)” Consumer means any person who
(i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose or
(ii) Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payments and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid, promised, or partly paid and partly promised or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for commercial purpose.
Upon careful scrutiny of the aforesaid provisions of the Act it is clear that where a person who avails of any service for consideration not for his personal use but for dealing with such service for commercial purpose such service shall not fall within the definition of consumer.
The Supreme Court of India in case of Birla Technologies Ltd. V/s. Neurtral glass and allied Industries Ltd. Reported in 2011 CTJ 121 (Supreme Court) (CP) held that complaint is not maintainable, firstly under Sec 2(1)(d)(1) because of the goods have been purchased for commercial purpose and secondly, the services hired or availed are too for commercial purpose.
9. The complainant in his complaint and affidavit stated that he is a business man and running Sri Navya Video Vision and has purchased inverter battery for his office purpose. Complainant did not plead anywhere in his complaint or in his affidavit that he is running Sri Navya Video Vision to eke out his livelihood by means of self employment. In the light of authoritative pronouncement of Hon’ble Supreme Court and discussion held above we are of the considered opinion that the complainant did not fall within the definition of a consumer and as sum the complaint is not maintainable even though the inverter battery purchased by the complainant was found defective within warranty period.
10. In view of above discussion without touching the merits of the case the complaint is dismissed without costs. However the complainant is at liberty to approach to the Civil Court or any other competent court. In the event the complaint approaches the Civil Court the period spent between filing of the complaint and disposal of the case before the District Forum will be excluded under Section 14 of the limitation Act, 1963 in the light of decision of the Supreme Court in Trai Foods Ltd V/s National Insurance Company Ltd and others reported in III (2012) CPJ 17.
11. In the Result, the complaint is dismissed without costs.
Typed to my Dictation by Stenographer, Corrected and pronounced by us in the open Forum on this the 10th day of October, 2013.
