BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

COMPLAINT NO.232/2016

DATE OF FILING: 25/11/2016
 

ORDER DATED: 28^th day of August, 2017

   P r e  s e n t: 

01) Smt. Sharada. K.                                                  President…

     B.A.LL.B. (Spl) 

02) Smt. Sumangala.C.Hadli.                            Lady Member…

                            B.A (Music)

03) Shri.Shravanakumar.D.Kadi                               Member…

                        M.Com.LL.B.  (Spl)

                V/s

JUDGEMENT DELIVERED BY SMT.SHARADA.K.PRESIDENT

The complainant has filed this Complaint u/s 12 of Consumer Protection Act, 1986 against the Opposite Party (herein after referred in short as OP) for seeking direction to OP to refund Rs.16,95,040/- with interest @ 18% p.a. from the date of purchase, Rs.2,00,000/- towards the mental agony and harassment caused to the complainant, Rs.10,000/- towards cost of the complaint.

2.    The brief fact of the case are as follows:

The complainant running his sugar crushing factory at Jamkhandi and Indi (Nad K.D.) in the name and style as “JAMAKHANDI SUGARS LTD.” having its head office at Hirepadasalagi Village, Tq: Jamakhandi, Dist: Bagalkot and OP doing business to supply the parts and electrical starter panels to sugar crushing factories. The complainant placed the order to purchase starter i.e. Auto Slip Regulator Panels (ASR Panels) on 07.06.2014. For that, JSL complainant issued a purchase order on same day and as per purchase order, the total bill amount in a sum of Rs.16,16,337/- and as per last para OP shown warrantee as two crushing seasons. Therefore, as per the purchase order, the complainant paid total Rs.15,18,964/- out of Rs.16,96,040/- through UTI Bank.

3.      Thereafter on 22.01.2015, the OP Engineer installed the said ASR panels in complainant’s sugar factory and received Auto slip Regulator panel vide MIR No.2633. OP know that, the sugar cane crushing fibrizer machine is used for hardly six months in sugar crushing season (October to March every year), as the farmers as supplying the sugar cane in those months and in raining season the factories are stopped. OP installed the ASR panels for fibrizor, leveler and kicker on 16.10.2015. Next, OP visited site on 29.11.2015 and carried out all the pre commissioning checks and put the ASR on load. On 28.11.2015, the ASR panel got burnt in babbins. Hence, complainant informed the OP on same day. On 29.11.2015, OP checked the panel and suggested that the working of ASR panel in MOM of 21.10.2015. The entire sugar cane fibrizer crushing machine could not be started. Hence, the same has been repaired by OP-Engineer and issued the report on 21.11.2015. After OP has repaired the said machine number of times on different dates, but the said machine is totally stopped to work due to spark and fumes in and due to same, the entire sugar cane crushing fibrizer has been stopped. Due to supply of defective ASR panel not only complainant lost valuable cane crushing time and also he spent his hard earned money for alternative starter to run his sugar crushing factory through LRS starter.

4.      On 16.03.2016, 18.03.2016, 26.03.2016 and 06.04.2016 complainant calling from OP for refund of amount against failure of OP’s ASR panels through emails, but till today OP has not replied to him. Finally, complainant has issued a legal notice through his counsel on 08.07.2016, but till today they have not replied to the said notice nor they refund the said amount to the complainant. Hence, complainant was constrained to file this Complaint for refund of Rs. Rs.16,95,040/- with interest @ 18% p.a. from the date of purchase, Rs.2,00,000/- towards the mental agony and harassment caused to the complainant, Rs.10,000/- towards cost of the complaint.

5.      After receipt of notice, OP appeared through his counsel and filed Objection. It is contended that the Complaint is not proper in the eyes of law and the same is not maintainable as contemplated under the law for the time being. OP contended that considering the nature of averments made in the Complaint, the nature of dispute is of commercial nature and such disputes ceases the jurisdiction of the Consumer Forum to adjudicate upon the disputes, considering the object and scope of the C.P. Act. Moroever, the goods supplied by the OP is not used exclusively for the purpose of earning livelihood but is used for a profit making activity. OP has also submitted that there is no jurisdiction to entertain this Complaint filed by the complainant. The present Complaint has filed beyond the pecuniary jurisdiction of the Consumer Forum and liable to be dismissed. This Complaint cannot be tried and decided under summary proceedings of the C.P. Act and the same is referred to civil court. Hence, OP prays that dismiss the Complaint in the interest of justice and equity.

6.      The complainant tendered affidavit evidence and filed documents in support of his case. OP filed affidavit evidence. After considering the material placed on record, the following points that arise for our consideration are:-

1. Whether the complainant has proved that he is a Consumer as defined under the C.P. Act, 1986?

2. What order?

          After considering the arguments advanced by the learned counsel for both parties and the material evidence placed on record, our findings for the above points are as follows;

1. Negative,
2. As per final order;

-: R E A S O N S :-

7.  POINT NO.1:- The complainant has running his sugar crushing factory at Jamkhandi and Indi (Nad K.D.) in the name and style as “JAMAKHANDI SUGARS LTD.” The complainant placed the order to purchase starter i.e. Auto Slip Regulator Panels (ASR Panels) on 07.06.2014. For that, JSL complainant issued a purchase order on same day and as per purchase order, the total bill amount in a sum of Rs.16,16,337/- and as per last para OP shown warrantee as two crushing seasons. Therefore, as per the purchase order, the complainant paid total Rs.15,18,964/- out of Rs.16,96,040/- through UTI Bank.

          8.      The Managing Director of the Jamakhandi Sugar Ltd. as PW1 by his evidence affidavit and he reiterated the averments of his Complaint and has produced documents which are marked as EX P1 to EX P___ and on behalf of OP one Sanjay Tanaji Bhade, the Managing Director of Innovative Technomics Pvt. Ltd., Tq: Bhor, Dist; Pune has been examined as RW1 by his evidence affidavit and no document produced.

          9.      Heard the arguments of both side, perused the records and evidence led by respective parties.

          10.    On going through the Complaint filed by the complainant wherein the complainant himself has stated that he is the Managing Director of Jamakhandi Sugar Factory by name Jamakhandi Sugars Ltd., Hirepadasalagi, Tq: Jamakhandi itself indicate that complainant running Sugar Factory which means it is a purely for commercial purpose with a main intention to earn profit by doing business at large.

          11.    Further, it is admitted fact of complainant in his EX P1, 11 column mentioned Sup of erect & comm.:- applicable as per commercial terms and conditions clearly shows, it is commercial requirement.  

          For the sake of deciding the issues to whether the complainant is a consumer as defined under the Consumer Protection Act, 1986 reproducing the section 2 (1) (d) of Consumer Protection Act as follows:

          “(d) “consumer” means any person who –

1. 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 promised or partly 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
2. 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 payment and includes any beneficiary of such services other than the person who 1[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, 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 any commercial purpose

[Explanation: For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment;]”

12.    On going through the pleadings and the above definition of Consumer, we are of the opinion that the complainant represented by the Director, which is a Company registered under the Indian Company’s Act, 1956 and it is not established for earning livelihood but with a intention to earn profit from business. So on the basis of the said facts the complainant is not come under the purview of term “consumer” as defined under the C.P. Act.

13.    On perusal of the pleadings of the Complaint and also his evidence it is nowhere mentioned by him that, “he carried out the above business by way of self-employment for earning his livelihood”. In the absence of such plea, the service to be provided by Ops were purely for his business or commercial purposes, under such circumstances Complaint against Ops is not maintainable in the absence of such required plea in his averments.

14.    In this regard a citation reported in I (2005) CPJ 450 (NC) between Sanjay Chandra Agarwal V/s India Bulls Securities Ltd. is referred wherein the Hon’ble National Commission has held as under:

“Consumer Protection Act, 1986 – Sections 2 (1) (d), 21 (a) (ii)  Consumer – Share transaction – Commercial purpose – Transaction not carried out by way of self-employment for earning livelihood – complainant not consumer.”

In another citation reported in I (2016) CPJ 113 (NC), between APS International Pvt. Ltd., V/s Emaar MGF Land Limited, wherein the Hon’ble National Commission has held as under:

“Consumer Protection Act, 1986 - Sections 2 (1) (d), 2 (1) (g), 21 (a) (i) – Consumer – Booking of shops/commercial area – Registration amount paid – non-delivery of possession – Deficiency in service alleged – Refund along with compensation claimed – commercial purpose – Complaint has been filed on behalf of M/s APS International Private Limited and Anr. – Complainant do not qualify to be consumer – Case is not maintainable – Liberty granted to seek remedy before any other appropriate Forum or Civil Court as per law – Directions issued.”

In another citation reported in IV (2016) CPJ 67 (NC), between Sri.Sai Industries Ors. V/s Mahindra and Mahindra Ltd., wherein the Hon’ble National Commission has held as under:

“Consumer Protection Act, 1986 - Sections 2 (1) (d) (ii), 21 (b) – Consumer Partnership firm – Purchase of vehicle – Commercial purpose – complainant had purchased one mini-truck, open body, in order to promote its business – Title of petition itself mentions ‘Sri Sai Industries’ through its partner PA – Question of a partner earning his livelihood by means of self-employment does not arise – This is a commercial transaction – complainant not consumer.”

Herein also title of the complainant mentioned as Jamakhandi Sugar Ltd., name of the Sugar Factory itself indicate that complainant running commercial purpose and also complainant represented by its Managing Director that means the principles enunciated in the above citations is similar to that of the present case on hand and the Hon’ble National Commission has taken a view that they are doing business for the sake of earning profit and not for earning his livelihood by means of self employment and therefore he is not a consumer as defined under the C.P. Act. 

15.    So considering the same, we are also of the view that looking to the present facts of the case coupled with the admitted fact by the complainant, the complainant is not a consumer within the definition of the Consumer Protection Act. Therefore, we answer the Point No.1 in the negative.

16.  POINT NO.2:  In view of negative finding to Point No.1, we proceed to pass the following:

:: ORDER ::

1. The Complaint filed by the complainant u/s 12 of C.P. Act against OP is dismissed without cost.

2. Complaint of the complainant is directed to approach proper civil Court.

3. Section 14 of Limitation Ac exclude the period spent competent the period of limitation.
4. Send a copy of this Order to both parties free of cost.  

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 28^th day of August, 2017)