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H.S. Bhakuni, Proprietor of Riddhi-Siddhi Digital Color Lab, Mumbai v/s M/s. Digital Ups Minilab Systems, New Delhi & Others

    First Appeal No. 730 of 2015

    Decided On, 23 February 2022

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appellant: Gaganpreet Singh, Advocate. For the Respondents: R-2, In Person.

Judgment Text

1. The present First Appeal has been filed against the order dated 08.12.2014 passed by State Consumer Disputes Redressal Commission, Delhi (in short ‘State Commission’) in Complaint Case No.198/09.

2. Case of the Complainant is that he is running the business of developing and printing digital photography and sound mixing photography in the name of Riddhi-Siddhi Digital Colour Lab. Head office of the Complainant is situated at Mumbai and Laboratory is situated at Bageshwar, Uttarakhand. The Complainant approached Opposite Party Nos.2 & 3 for importing digital photography printing machine for his business. They represented that they were partners of M/s Digital UPS Minilab Systems/Opposite Party No.1. Opposite Parties assured the Complainant that they would procure the machine from Japan. The Complainant made payment of Rs.32 lakhs and also supplied the documents demanded by the Opposite Parties for the purpose of import and custom clearance. The Complainant took a loan of Rs.24 lakhs from State Bank of India. Opposite Parties imported the machine and installed the same in the Laboratory of the Complainant on 09.01.2008. The machine carried free warranty of one year. Soon after installation, the machine started malfunctioning. The problem was brought to the notice of the Opposite Parties. The Engineer of the Opposite Parties visited the Laboratory of the Complainant and repaired the machine but the machine never functioned properly, causing heavy wastage of paper material and chemicals. The Engineer told the Complainant that the machine was second hand whereas the Complainant paid the price of a new machine. On 15.05.2008, the Complainant wrote a letter to the Opposite Parties stating that they had supplied a second hand machine to the Complainant and the Engineers could not rectify it due to which the Complainant suffered a loss of Rs.12,10,000/- and sought compensation from the Opposite Parties.

3. On 30.05.2008, the Opposite Parties wrote a letter to the Complainant intimating that they had never promised to import a new machine. The order placed by the Complainant was for a second hand machine. On 25.08.2008, the Complainant sent a legal notice to the Opposite Parties mentioning that they had cheated the Complainant by supplying a second hand machine and sought claim of Rs.22,60,000/-. Rs.10 lakhs being the differential amount between the price of a new printing machine and a second hand printing machine and Rs.12,10,000/- being the loss suffered by the Complainant alongwith Rs.50,000/- as compensation for causing damage to the reputation and goodwill of the Complainant. The Opposite Parties did not reply to the legal notice. On 17.03.2009, the Complainant sent another legal notice to the Opposite Parties seeking replacement of the machine and compensation, which was also not replied by them. Alleging deficiency in service on the part of the Opposite Parties, the Complainant filed Consumer Complaint before the State Commission with the following prayer: -

“(a) The Respondents be jointly and severally ordered and decreed to pay to the complainant being a total sum of Rs.32,00,000/- (Rupees Thirty Two Lakhs) being the actual amount paid for the price of New Machine and old machine be taken back by the respondent and further the interest at the rate of 18% p.a. from 1st April, 2008, till the date of payment on Rs.32 Lakhs.

(b) The Respondents jointly and severally be ordered and decreed to pay also to the Complainant a total sum of Rs.1080782/- (Rupees Ten Lakhs eighty thousands seven hundreds eighty two only) as per the Particulars of Claim (Exhibit “J” hereto) in respect of compensation and damage caused and on account of loss of business and goodwill, negligence, delay harassment and mental agony and legal expenses, caused by the Respondents.

(c) For such other and further reliefs and orders or directions as the Hon’ble State Commission may deem fit, proper and reasonable.

(d) Cost of the complaint may be provided for.”

4. Despite service of notice, the Opposite Parties did not appear before the State Commission. The Opposite Parties were, therefore, proceeded ex-parte. The State Commission, vide impugned order dated 08.12.2014 dismissed the Complaint as not maintainable. The impugned order reads thus: -

“Hence, the complaint of the complainant before this Commission is not maintainable and once we have come to the conclusion at the initial stage that the complainant does not qualify to be a Consumer, we feel that there is no need to discuss other grounds of the complaint to allow his complaint and we accordingly dismiss the complaint in limini.

However, liberty is reserved with the complainant to seek redressal of his grievance from any other forum/Court alongwith an application under Section 14 read with Section 5 of Indian Limitation Act, seeking to exclude the time spent in this Commission while calculating limitation in the light of the observations of Hon’ble Supreme Court in Laxmi Engineering Works vs. PSG Industrial Institute (1995) (3) SCC 583.”

5. Dissatisfied with the order of the State Commission, the Complainant filed the instant Appeal before this Commission with the following prayer: -

“(i) Allow the appeal of the appellant and set aside the judgment dated 08.12.2014 passed by the Hon’ble State Commission Delhi in complaint case No.198/2009.

(ii) To allow the prayer as mentioned in the complaint and award the amount as prayed for in the complaint along with the interest @ 18% p.a.

(iii) Petitioner has only this as source of his livelihood he has suffered a great loss already so kindly provide him the litigation cost or amount of Policy till the litigation is going.

(iv) Pass such order and order/orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of this case.”

6. Heard Learned Counsel for the Appellant and Respondent No.2, who appeared in person and carefully perused the record. Learned Counsel for the Appellant/Complainant submitted that the State Commission failed to appreciate that the Complainant was running the business for his livelihood. The Complainant was proprietor of a small firm and not a company. It was also submitted that the State Commission ignored the fact that the Opposite Parties cheated the Complainant by providing a second hand machine against the price of a new machine. Learned Counsel for the Appellant/Complainant relied on the judgment of Hon’ble Supreme Court in Cheema Engineering Services vs. Rajan Singh (1997) 1 SCC 131 and M/s Paramount Digital Color Lab vs. M/s Agfa India Pvt. Ltd. 2918 (14) SCC 81.

7. Respondent No.2 submitted that the printing machine purchased by the Complainant was for commercial purpose. The Complainant was not a “Consumer” under Section 2 (1) (d) of the Consumer Protection Act, 1986. He also submitted that the impugned order is justified and the Appeal deserves to be dismissed.

8. The issue involved in this Appeal is whether the Complainant is a Consumer. In this regard, para 1 of the Complaint is relevant, which reads as follows: -

“1) The Complainant is carrying on the business of developing and printing photography, digital and sound mixing photography at Tehsil Road, SBI Bageshwar-Uttarakhand 263642 in the name and style of Riddhi-Siddhi Digital Colour Lab. The head office of the complainant is situated at Mumbai at the address shown in the title.”

9. From the above, it is clear that the Complainant was running a Laboratory at Bhageshwar, Uttarakhand and its head office was situated at Mumbai. In the Complaint as well as the Appeal, the Complainant had also given two addresses of his firm one at District Bhageshwar, Uttarakhand and the Head Office at Mumbai. Apart from the above, the Complainant also admitted before the State Commission that he had another office in District Haldwani-Nainital, Uttarakhand. Nowhere in the Complaint, it is mentioned that the Complainant had purchased the machine for earning his livelihood by way of self-employment. Rather the Complainant had stated that “the Complainant was looking for impor

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ting digital photography printing machine for its business purpose.” In Cheema Engineering Services (supra) the Complainant was using the machine "Brickman" for clay preparation, brick moulding, brick drying and brick burning. Further, in Paramount Digital Color Lab (supra) the Complainants purchased photo processing, developing and printing machine. In the aforesaid cases, there was no evidence that the Complainants were having more than one office. However, in the instant case, admittedly the Complainant is having Laboratory at Bhageshwar, Uttarakhand and Head Office at Mumbai. The cases relied by the Complainant are not applicable to the facts of this case. 10. State Commission has passed a well-reasoned order. Appellant failed to point out any illegality or infirmity in the impugned order warranting interference in Appellate jurisdiction. Appeal is accordingly dismissed with no order as to cost.