Jayshree Yengal, Member.
1. The original complainant Smt. Puja Chandrashekhar Moharkar has preferred this appeal being aggrieved by an order dated 29/3/2016, passed by the District Consumer Forum, Wardha, dismissing the consumer complaint bearing No. 99/2014.
2. Appellant Smt. Puja Chandrashekhar Moharkar and respondent Viraj Engineering through its proprietor/Manager are referred to by original status as complainant and opposite party ( for short OP) respectively for the sake of convenience.
3. Facts in brief as set out by the complainant in the consumer complaint are as under.
a. The Complainant Smt. Puja Moharkar with an intention to set up a soyabeen and paneer plant at the MIDC Area at Wardha procured a plot in that area by availing loan from Bank of India Wardha. The complainant approached the OP, who is a manufacturer of the machinery required for the aforesaid plant. The OP provided a quotation and after due negotiations, the complainant placed the order for the required machinery for the plant with the OP in the month of June 2014 for a total consideration of Rs. 3,00,000/-
b. The OP was to develop the plant within two months. However the OP failed to develop the same within the aforesaid period and it took four months more than the agreed period to complete the development work of the plant. The complainant as a result, was required to bear additional interest on over loan for four months to be paid to the bank.
c. Although the machinery installed by the OP was delayed by four months, in addition it was faulty as it could not be operated smoothly. During inspection, it blasted and three labourers were injured at the site. The electric fitting and other industrial goods at the site were also damaged. The complainant was again required to bear additional expenses to set right the damage that was caused due to the said accident.
d. It is the contention of the complainant that the machinery that was supplied by the OP was also defective as it failed to give results as the OP had assured and shown at the time of giving trial demonstration. The OP had sent their technical expert to repair the machine but still the machine could not be repaired. The soyabeen milk and paneer which was extracted by the said machine was also of sub-standard quality. The complainant was subjected to further loss as the product/milk and paneer did not fetch proper price in competitive market. As the complainant suffered discomfort & loss in her business, she issued a legal notice on 5/5/2014 calling upon the OP to repair the machine and replace the spare parts at his cost. The OP could not repair the machine. Inspite of the so called repairs being done by OP, the machine continued to give the product of sub-standard quality.
e. The complainant alleging unfair trade practice and deficiency in service on the part of OP, filed a consumer complaint and sought for replacement of the spare parts in the machinery at the cost of the OP & claimed Rs. 1,00,000/- with 18 percent per annum interest for the monitory loss incurred, Rs. 50,000/- as compensation for mental harassment and such other incidental reliefs.
4. The OP Viraj Engineering Company through its proprietor/ Manager resisted the complaint by filing its written version and denied all the adverse allegations of the complainant. The OP in its written version by way of preliminary objection challenged the jurisdiction of the Forum as the territorial jurisdiction was only with Pune Court as per terms and conditions of the agreement executed between the parties. The dispute involved requires detailed evidence which cannot be decided in the summary jurisdiction of the Forum. The dispute was of civil nature and therefore needs to be agitated before the competent Civil Court.
5. The OP has further specifically submitted that it had supplied the machinery to the complainant as per the agreement. The total consideration was of Rs. 6,02,362/-. The complainant had paid only Rs.3,00,000/- and Rs. 3,02,362/- are still outstanding and to be paid by the complainant. The complainant without informing the OP visited the factory of the OP and demanded additional spare parts. She unauthorizedly took away many spare parts. The complainant then hired a truck which was not proper to transport the machinery. The complainant purchased the goods of sub-standard quality which were required for installation of the machinery. She had also installed the goods without any expert assistance. The complainant got the machine repaired from unauthorized workshop. The complainant was herself responsible for the inconvenience & hardship faced by her. The OP therefore denied any unfair trade practice being adopted by him or rendered any deficiency in service. The OP specifically submitted that it had advised the complainant to send the machine at its authorized workshop at Pune for repairs and had also demanded the payment of balance amount outstanding. The OP also submitted that the complainant has filed a false complaint to avoid balance payment to the OP.
6. The Forum after hearing both the sides and considering the documents filed on record, dismissed the complaint as aforesaid. The Forum has specifically held that the complainant is not a consumer as defined under the Consumer Protection Act, 1986, as she has not pleaded that she had floated the business to earn her livelihood by means of self employment. The Forum has further held that the complainant started the business for commercial purpose and not for earning livelihood by means of self employment.
7. The Forum has also observed that although the complainant has alleged several defects in the machine supplied by the OP, she has not filed any evidence by way of expert opinion or other such documents in support of the alleged defects in the machine. The OP has also not proved his defence by cogent evidence. The Forum therefore was of the view that under such circumstances the parties would be required to adduce detailed evidence and the dispute involved is purely of civil nature and cannot be decided within the summary jurisdiction of the Forum. Holding accordingly the Forum below dismissed the complaint.
8. Being aggrieved by the dismissal of the complaint, the complainant has preferred this appeal and challenged the impugned order mainly on the ground that she had amended the complaint by filing an application for amendment which was allowed by the Forum below thereby adding the words ' Self Employment' and For the livelihood' Therefore the Forum holding that the complainant is not a consumer is unsustainable in law.
9. Advocates of both the parties filed written notes of arguments and submitted that as the same were filed in detail, it may be considered as their oral submissions.
10. We perused the impugned order, written notes of arguments filed by both the parties, copies of the complaint, written version and documents as filed on record by both the parties.
11. We find that the copy of the complaint nowhere reflects the words ' self employment' or ' for the livelihood' The impugned order also has not recorded the aforesaid terms. On the other hand, the Forum below has specifically observed that in absence of the complainant pleading that the business was for self employment to earn livelihood an inference can be drawn that the complainant had availed services of OP for commercial purpose.
12. The documents which are filed on record are in respect of the goods/machine purchased by the complainant from the OP for the total consideration of Rs.3,33,750/- The other documents are relating to the correspondence between both the parties and the notices exchanged between them. None of the documents are in respect of the defects alleged by the complainant in the machine. The complainant in her consumer complaint has also prayed for a replacement of spare parts at the cost of the OP. She has n
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owhere mentioned in complaint which spare parts are defective and which needs to be replaced or repaired. Therefore it cannot be inferred that the complainant has proved the defects in the machine and hence the complaint deserves to be allowed. 13. For the foregoing reason, we find no illegality or infirmity in the impugned order passed by the Forum below. We are of the reasoned opinion that the appeal deserves to be dismissed being devoid of merits. In the result, we pass the following order. ORDER I. The appeal is dismissed. II. The impugned order dated 29/03/2016, passed by the District Consumer Forum, Wardha in consumer complaint bearing No. 99/2014, dismissing the consumer complaint is confirmed. III. No order as to cost in appeal. IV. Copy of the order be furnished to both the parties, free of cost.