BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 07.03.2014

Date of Order : 11.05.2016

Present :-

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt.Beena kumari V.K, Member.

C.C. No.179/14

Between

And

O R D E R

Beena kumari V.K, Member.

1. A brief statement of facts of this case is as follows:-

   The complainant Sri. Skylark J had purchased a “Super fit massager” from the opposite party M/s True fitness and sports on 05.07.2013 for Rs. 25,000/- and the said machine was delivered to the address M/s Skylark Brawn Fitness, the fitness centre run by the complainant. Immediately after the delivery of the machine it started malfunctioning. The matter was intimated to the opposite party and requested for replacement /repair. But the opposite party did not attempt to replace or repair the machine. The complainant came to know that the machine delivered to him was the one at the opposite parties showroom which is used as a Demo show piece and the machine was a tampered one due to rash and negligent use by the public. On getting no response from the opposite party the complainant caused to issue a Lawyer notice dated 07.02.2014 to the opposite party. In reply to the notice the opposite party intimated the complainant that service Engineers for the service of the machine are with M/s Excel International, Thirunelveli, Tamilnadu. But no service Engineer was deputed by the opposite party as promised to repair the machine. Hence the complainant filed this complainant seeking direction of this Forum to the opposite party to refund the 35,000/- which is inclusive of the price of the machine of Rs.25,000/- and Rs.9,000 towards damages and Rs.1,000/- towards costs along with interest @ 18% per annum on Rs.25,000/- from the date of delivery till the date of realization of the amount.

   2) Notice was issued from this Forum to the opposite party and the opposite party filed its version stating that the super fit massager purchased by the complainant was for commercial purpose, that the opposite party did not sell old machine to the complainant that the show room of the opposite party had got many other show pieces for demonstration purpose, that the machine delivered to the complainant being a brand new one there was no reason to replace the same. It is submitted that the complainant without the knowledge and consent of the opposite party brought the machine to the office premises of the opposite party and left the machine outside the premises and the opposite party had to call the police at the time of closing the shop. However the machine was kept in safe custody to safe guard the goodwill of the opposite party. It is alleged that the complainant unauthorizedly removed the PCB Board and sent the same to the manufacturer. It is submitted that the complainant is not a consumer and there is no deficiency in service on the part of the opposite party and this complaint is filed by the complainant only to harass the opposite party and to tarnish the image of the opposite party with the intention to get unjust monetary benefit. It is prayed that the complaint may be dismissed.

3). The Evidence in this case consist of the oral evidence of PW1, the complainant and the documentary evidences marked as Exhibit A1 to A5 on the side of the complainant and the oral evidence of DW1 and documentary evidence marked as Exhibit B1 on the side of the opposite party.

4. Heard the learned counsel for the complainant

5. On the pleadings, the following issues were settled for the consideration of this Forum.

Issue No.(i) Whether the complainant is a consumer within the meaning of CP Act, 1986.

Issue No. (ii) Whether the complainant has proved deficiency in service on this part of the opposite party.

Issue No.(iii) Whether the complainant is entitled to get the refund of the price of the Super fit massager with interest thereon.

Issue No.(iv) Whether the opposite party is liable to pay compensation and costs of proceedings to the complainant.

6. Issue No.(i) The opposite party alleged that the 'Super fit Massager' purchased by the complainant was supplied to the complainant not for commercial use but for his for personal use and that complainant himself admitted at the time of cross examination deposed before the Forum that he had purchased the super fit Massager in the name of the complainants shop “ Sky lark Brawn Fitness” and it was used commercial purposes, that a person who purchases goods with a view to using such goods for carrying on any activity on a large scale basis for the purpose of earning profits would not be covered by the term 'consumer' in the CP Act, 1986 as held by the Honorable Supreme Court in Lekshmi Engineering works case reported in 1995 AIR 1428; 1995 SCC(3) 583. it is also submitted that the rough use of the machine in the gymnasium had resulted in the malfunctioning the machine. The complainant vide IA No.180/2016 submitted that the fitness centre M/s Sky lark Brawn Fitness is run by the complainant for earning his livelihood. In that case the complainant would come within the definition of the term 'consumer' under the CP Act, 1986. but the above IA was filed much belatedly on 18^th of March 2016. hence above petition was dismissed on 24.03.2016. in the circumstances the 1^st issue is decided against the complainant

7. Issue No.(ii) & (iii)

The complainant had purchased a 'Super fit Massager' from the opposite party M/s True Fitness and sports for Rs.25,000/- as evidenced by Exhibit A1 invoice dated 05.07.2013. The above said invoice was issued by the opposite party in the name “M/s Sky lark Brawn Fitness, Vendarmukku, Kollam” the Fitness Centre run by the complainant. The case of the complainant is that the super fit massager supplied by the opposite party was an old one and used one. For the said reason the machine started malfunctioning within ten days of its purchase. It is submitted by the complainant that on intimation the opposite party assured the complainant to replace the machine with a new one when stock arrives; But the opposite party did not keep his word hence a Lawyer Notice was caused to be issued the opposite party vide Exhibit A2 Lawyer Notice dated 07.02.2014, that the non supply of a new machine amounted to deficiency in service on the part of the opposite party. In reply notice vide Exhibit A4 dated 17-02.2014 the opposite party denied the allegation raised by the complainant but intimated the complainant that the machine has now been serviced despite the fact the machine was used by the complainant for commercial purchases and the said machine had been left at the office premises of the opposite party and that the complainant can take back the machine at any time at his will. The complainant on the other hand contained that he could use the machine only for 10 days after its purchase and machine because useless within the warranty period of 6 months. But no evidence furnished before this Forum by the complainant to show that he had ever made a complainant within the warranty period of 6 months and the complainant also not produced any warranty card before this Forum. Moreover the Super fit massager was purchased in the name of “M/s Sky lark Brawn Fitness” an institution run by the complainant. The complainant as PW1 deposed before this Forum as page 9 that the service personnel of the opposite party came after 2 months of getting the complaint from the complainant and that the machine parts were dismantled by the service personnel of the opposite party and were sent to the manufacturer M/s Excel International as Thirunelvali, Tamil Nadu by the service personnel of the opposite party. Thus the case of the complainant is that no service whatsoever was given to the complainant after the purchase of the Super fit massager in fact the opposite party had never attempted to repair/replace the machine within the warranty period of 6 months. The evidences go to show that the machine who purchased in the name of the institution run by the complainant. Hence we came to a conclusion that the Super fit Massager was used for commercial purposes. In such cases the proper Forum to file this complaint is the appropriate Civil Court and this Forum has no jurisdiction to entertain such a complaint. Hence the issue No.(ii) and (iii) were decided against the complainant.

8. Issue No.(iv) Having decided the issues No.(i) to (iii) against the complainant, we are of the opinion that the issue No.(iv) deserves no consideration therefore the issue No. (vi) is decided against the complainant.

3. In the result the complaint is dismissed with no costs.

Pronounced in the open Forum on this the 11^th day of May 2016.

Sd/- Beenakumari V.K., Member.

Sd/-Cherian K. Kuriakose, President.

Sd/-Sheen Jose, Member.

Forwarded/By Order,

Senior Superintendent.

Date of Despatch of this Order ::

By Post ::

By Hand ::

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

Exhibit B1 :: Acknowledgment Receipt