CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.725/2007
DEV BHUMI COLD CHAIN LTD.,
17 & 18 NEW SUBZI MANDI,
AZADPUR, DELHI-110033
…………. COMPLAINANT
Vs.
- THE MANAGER
VISHWAKARMA ENTERPRISES,
B-134, DDA SHEDS, OKHLA INDUSTRIAL AREA,
PHASE-1, NEW DELHI-110020
- CARRIER AIRCONDITIONING &
REFRIGERATION PVT. LTD.,
REGD, OFFICE:-NARSINGHPUR, KHERKI,
DAULA POST, GURGAON-122004
…………..RESPONDENTS
Date of Order:20.08.2018
O R D E R
A.S. Yadav - President
The complainant is a company duly incorporated under the Companies Act, 1956. The complainant is running cold storages and also has vehicles having refrigerated plants on them which are used for its own purpose of maintaining a cold chain for the produce that the company trades in as well as for its own purposes in maintaining the complete cold chain for services provided to others. The complainant maintains the cold chain from the time of procurement of fruits and vegetables till those reach the end user.
The case of the complainant is that it purchased two identical refrigeration plants from OP-2 which are meant for storage of fruits and vegetables in the vehicles of the complainant. The said refrigeration plants are not meant for commercial use but for own use of the complainant therefore the complainant is a consumer and this complaint is maintainable. One refrigeration plant was purchased on 28.01.2005 for a sum of Rs.2,18,875/- and other refrigeration plant was purchased on 22.04.2005 for a sum of Rs.2,18,874/- and the same were fitted on vehicles bearing No.DL-1LE-9282 and DL-1LE-9622 respectively.
It is stated that OPs had been providing adequate service and maintenance of the refrigerated vehicles till 02.04.2007. On 02.04.2007 the vehicle bearing No.DL-1LE-9622 was sent to the workshop of OP-1 for service and maintenance as at that time refrigeration plant in the said vehicle was not functioning. OP replaced some defective parts with new one and then delivered the vehicle to the complainant after a very long time as a result the complainant suffered heavy losses. Again the refrigeration plant of the said vehicle did not work. It was again taken to the workshop. Repair was carried out after lot of time. Similarly the other vehicle was also sent for service and maintenance. The complainant is a cold chain company and its business and trading is based on that. Due to the gross, negligent and malafide behaviour of OPs, none of the complainant’s remunerative acts could be fulfilled as the cold chain of the complainant was broken causing huge loss of business of the complainant. It is stated that the complainant suffered a total loss of Rs.9,78,440/-. The complainant sought this amount as well as compensation and litigation expenses.
OP-1 took the plea that the complainant is not a consumer and the complainant is a company doing business for commercial purposes. It is further stated that when the refrigerator was brought to OP-1, compressor of the same was not working and OP-1 replaced the same and delivered the vehicle to the complainant. However, the complainant, after one day, came to the workshop of OP-1 again and OP-1 again checked the refrigerator and found that the compressor replaced by OP-1again got damaged. Thereafter in order to do repair work OP-1 installed four compressors, however, all became defective during repair work as the said refrigerator was suffering from manufacturing defects. The cost of each compressor was Rs.17500/- which was not paid by the complainant. It is submitted that there is no deficiency in service on the part of OP-1. It is prayed that the complaint be dismissed.
OP-2 in reply also took the plea that the complainant has purchased refrigerators for commercial purposes hence the complainant is not a consumer. It is submitted that the complainant has stated in the complaint that it was satisfied with the service being given by OP upto 02.04.2007 i.e. date on which the warranty had already expired. It is further stated that the unit was repaired by OPs dealer on 17.03.2007 and 03.05.2007 on chargeable basis and on 15.06.2007, the unit was again repaired and the compressor was replaced free of cost as a goodwill gesture and this fact was concealed by the complainant. It is submitted that the units were purchased on 28.01.2005 and 22.04.2005 and the first complaint was received only on 02.04.2007 and the same was beyond the warranty period. It is stated that there is no deficiency in service on the part of OP. It is prayed that the complaint be dismissed.
We have gone through the case file carefully.
We are of the view that the complainant is not a consumer. Section 2(1)(d) of Consumer Protection Act 1986 defines ‘consumer’ as under:-
“(d) ‘consumer’, means any person who –
- 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 party 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 resale or for approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or
- 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 service for consideration paid or promised, or partly paid or party promised, or under any system of deferred payment, when such services are availed of with the approval of 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 purposes of earning his livelihood by means of self-employment.]”
Reference in this regard is placed on judgment of Hon’ble National Commission in case of M.T. James Vs P.M, Baburajan and Ors. – 1(2015) CJ 654 (NC) – where a diesel generator set was used for hospital for providing steady and uninterrupted electric supply. It was held that the generator set was purchased for commercial purposes hence the complainant is not a consumer.
The Hon’ble National Commission relied upon the judgment of Hon’ble Supreme Court in case of Birla Technologies Ltd. Vs Neutral Glass and Allied Industries Ltd., IX (2010) SLT 396=1 (2011) CPJ 1 (SC)= (2011) 1 SCC 525 – wherein it was held as under:-
“8. We have gone through the impugned judgment, wherein there is a clear cut finding that the software in question amounted to sale of goods by the appellant to the respondent for commercial purpose and as such the respondent would be excluded for being considered as a ‘consumer’ under Section 2(1)(d)(i) of the Act………..”
In view of the above judgments, the complainant is not a consumer. Hence the present complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (H.C. SURI) (A.S. YADAV)
MEMBER MEMBER PRESIDENT
