Haryana

Ambala

CC/428/2010

M R SALES CORPORATION - Complainant(s)

Versus

TURNKEY PRINTING SOLUTIONS - Opp.Party(s)

C.L CHUHAN

01 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

Complaint Case No.    : 428 of 2010

Date of Institution       : 29.09.2010

Date of Decision         :01.05.2015

M/s M.R. Sales Corporation, 177-B/1, Mess Road, Rai Market, Ambala Cantt through its Prop. Sadhana Arora.                                                                                                                                                                                                                             ……Complainant.

                                                                          Versus

Turnkey Printing Solutions Pvt. Ltd. Regd. Office: B-20/3, Okhla Phase-II, New

Delhi 110020 through its Prop. Akshay Jairath.                                                                                                ……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act

CORAM:        SH. A.K. SARDANA, PRESIDENT.

                        SMT. ANSUYA BISHNOI, MEMBER.

                        SH. S.C.SHARMA, MEMBER.                                               

Present:          Sh. C.L. Chauhan, Adv. counsel for complainant.

                        Sh. Rajiv Sachdeva, Adv. counsel for OP.                       

ORDER.

1.                     Present complaint under section 12 of the Consumer Protection Act, 1986 (hereinafter in short called as the ‘Act’) has been filed by the complainant alleging therein that  he purchased  a Digital Inkjet Plotter Machine  from the OP in a  sum of Rs.1,30,000/- vide invoice No.46 dated 30.09.2009. However, the OP issued a bill of Rs.62,400/- in order to avoid  Sales Tax and the said amount was paid through Bank Draft whereas the remaining amount was paid in cash.   It has been further submitted that the complainant spent about a sum of  Rs.37,000/-  on accessories of the machine but the machine did not function and the OP was informed about the defect.  Upon which, the OP sent their Engineer, who took out parts (engine etc.) of the machine for replacement but never returned  the same and thus the machine is lying in idle condition which affected the work of the complainant to the tune of Rs.1.00 lac  as he could not complete work orders.  It has also been alleged that despite repeated visits for replacing the parts, the OP is adopting delaying tactics and a sum of Rs.25,000/-  has been spent on these various visits to the OP but of no avail. Having no alternative, the present complaint has been filed by the complainant seeking relief as per prayer para.

2.                     Upon notice, OP appeared through counsel and filed written statement raising  preliminary objections qua non-maintainability of complaint due to lack of jurisdiction and  even the dispute between the parties is of commercial nature and the same cannot be decided by this Forum.  Besides it, the complainant is not a consumer within the provision of Section 2(1)(d) of the C.P. Act, 1986 and as such the complaint of complainant is liable to be dismissed  on this score alone.   On merits, it has been urged that the machine in question was purchased by the complainant from OP in a sum of Rs.62,400/-  instead of Rs.1,30,000/- as  alleged in the complaint.   It  has been further submitted that the machine so delivered to the complainant  through transport at Delhi was in perfect running condition and there was no defect in the machine.   It has been denied that complainant ever complained about the defect in the machine and that they sent their Engineer to the working place of the complainant who allegedly took out the parts (engine etc.) of the machine for replacement or that he never returned to replace the parts.  The falsity of allegations as leveled by the complainant against the opposite party is  very much evident from the fact that the complainant has not even mentioned  the date and time on which the alleged representative of the OP allegedly took the parts (engine etc.) of the machine leaving aside by filing of any document in support of his claim.  Rest of the contents of the complaint have been denied and a prayer has been made for dismissal of complaint with costs.

3.                     In evidence, the  counsel for complainant tendered affidavit  of complainant as Annexure CX alongwith documents as Annexures C-1  to C-5 and closed the evidence whereas on the other hand, the counsel for  OP tendered in evidence affidavit  of Jitender Datt Sharma, authorized representative of OP as  Annexure RX and document as Annexure R-1 and  closed evidence on behalf of OP.

4.                     We have heard the counsel of complainant as well as counsel for the OP and gone through the case file very carefully.  The main grievance of the complainant is that he purchased a Digital Inkjet Plotter machine from the OP  which became defective after its purchase.  Complaint regarding defect of the machine was made to the OP but they did not pay any heed  to rectify the defects in the machine in question. Because of defect in the machine, the complainant has suffered a loss in business to the tune of about Rs.1.00 lac as well as the complainant has to undergo mental & physical pain.

                        On the other hand, the counsel for the OP has argued that the complaint against the Op is not maintainable under the provisions of Consumer Protection Act since, the machine was purchased for commercial purposes as is evident from the contents of complaint wherein the complainant himself  has stated that he has suffered a loss of Rs.1.00 lac in business.  The counsel for complainant further argued that the present complaint is not maintainable before this Hon’ble Forum due to lack of jurisdiction. The provisions of the Consumer Protection Act, specifically states the complaint has to be filed only where the Opposite Party resides or carry their business and not where the complainant resides or carry their business. To further strengthen his stand, counsel for the OP has drawn the attention of this Forum towards the case law delivered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as M/s Oswal Fine Arts Vs. M/s H.M.T. Madras I(1991) CPJ Pg. 330 wherein it has been held that the machinery in question was purchased by the complainant for the purpose of its use in his printing press which is a commercial establishment.  A person who obtains goods for a commercial purpose is specifically excluded from the scope of the expression “consumer”  the definition contained in Section 2(1)(d)(i), Triyugi Narain Mishra Vs. Maruti Udyog Ltd. and others 2003(2) CLT Pg. 407 (NC), wherein it is held that Territorial jurisdiction-Car booking-Booking of the car was made at New Delhi where both the Ops have their offices-No part of cause of action arose within the State of Rajasthan nor was OP No.1 & 2 having any offices within the State of Rajasthan-Rajasthan State Commission rightly held that it had no territorial jurisdiction and Prestige Stones Vs. M/s Sharma Industries CPJ-1992(2) Pg. 450 (NC),  whereby the Hon’ble National Commission dismissed the complaint of the complainant holding him not to be a “Consumer” as  well as barred by territorial jurisdiction.

5.                     At the very outset, the main question arises for consideration before the Forum is that “whether the complainant falls under the definition of “Consumer” as defined in Section 2(1)(d) of the Consumer Protection Act,1986?”  for which we have to go through the definition of Consumer which is reproduced as under:-

                        Section 2(1)(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 [hires or avails of] the services for consideration paid or  promised, or partly paid or 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 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].

                        In the very face of such a preliminary objection, the burden of showing that  the machine  in question was actually being used by the complainant for earning his livelihood through self employment necessarily lies on the complainant but she has neither given any authentic document or argument in this respect nor  mentioned  even a single world qua her livelihood in her complaint  whereas the Op has mentioned that the complainant firm has not purchased the machine from them  for her livelihood rather it was purchased for  their business for earning profit and thus complainant does not come within the definition  of consumer as enshrined in the C.P. Act.  Besides it, it is clear from document Annexure C-2  that the machine in question was purchased  from  Delhi and the OP doing his business at Delhi and no branch or office/agent of OP is working in the territorial jurisdiction of  District Consumer Forum, Ambala.  Further, the complaint does not disclose any cause of action  to have taken place  within the jurisdiction of this Forum and that no opposite party resides or having its office situated within the jurisdiction of this Forum. Therefore,  in light of the decision rendered by Hon’ble Supreme Court of India in Civil Appeal No.1560 of 2004 titled as Sonic Surgical Vs. National Insurance Company Ltd. reported in 2010 (1) Consumer Law Today page 252, we hold that this Forum lacks territorial jurisdiction. 

6.                     After hearing the parties at length and going through the facts of the case, we have come to the conclusion that the legislature in its wisdom has found it appropriate to bar and exclude goods which are being used for commercial purposes from the jurisdiction/ ambit of the Consumer protection Act 1986 (hereinafter referred to as “the Act”). The provision of Section 2(1)(d) of the Act makes that amply clear.

            So, in view of facts discussed above, the present complaint is not maintainable for lack of jurisdiction as well as the complainant is not a consumer as per provisions of Section 2(1)(d) of  the Consumer Protection Act.  As such, the complaint is dismissed  with no order as to costs. Copies of this order be sent to the parties concerned free of costs, as per rules.  File be consigned to the record room after due compliance. 

 

Announced:1.5.2015                                                                        Sd/-

                                                                                             (A.K. SARDANA)

                         PRESIDENT            

                                Sd/-

               (ANSUYA BISHNOI)

                                                                                                 MEMBER

                                                                                                       Sd/-

                   (S.C. SHARMA)

                                                                                                MEMBER