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Sarwinder Kumar Gurbaksh Logistic India H.O. VPO-Hirke v/s Action Construction Equipments Ltd. & Another

    FIRST APPEAL NO. 539 OF 2011 Along with Interim Application No. 1 of 2011 (Condonation of delay )

    Decided On, 14 March 2012

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.B. GUPTA
    By, PRESIDING MEMBER & THE HONOURABLE MR. VINAY KUMAR
    By, MEMBER

    For the Appellant : J.B. Mudgil, Advocate. For the Respondents : -------



Judgment Text

JUSTICE V.B. GUPTA, PRESIDING MEMBER

In this appeal there is challenge to order dated 06.09.2011, passed by State Consumer State Disputes Redressal Commission, Panchkula ( for short as ‘ State Commission’ ). Along with it an application for condonation of delay has also been filed.

2. Appellant (complainant before State Commission) in its complaint has stated that he has been carrying on the business of crane service under the name and style of 'GURUBAKSH LOGISTIC INDIA' and is its Managing Director. He had purchased four Hydraulic Mobile Cranes during different period from respondent No.1/opposite party No. 1. It is further stated that appellant is earning his livelihood from the machines in question. Above stated cranes developed defects within warranty period. Despite repeated services provided by the respondents for repairing these machines, defects could not be rectified. Thereafter, appellant approached respondents to replace these machines with new one or to refund its price. However, respondent No. 1 refused to accede to this request. Thereafter, appellant served a legal notice, to which there was no response. Hence, complaint was filed before the State Commission.

3. Respondents in their preliminary objections in the written statement took the plea that complaint is not maintainable as machines were purchased by the appellant for commercial purposes. Moreover, State Commission had no territorial jurisdiction as machines were purchased at New Delhi.

4. On merits, it is stated that appellant had purchased four machines on different dates. Once he was satisfied with the first machine, then only he purchased second, third and likewise fourth machine. It is further stated that appellant had used the machines under worst condition without routine servicing as per the schedule and as per requirement of O. E. Product, which is evident as appellant never got any free service as per company’s standard schedule. It is denied that there is any deficiency in service on the part of the respondents.

5. State Commission, vide impugned order, dismissed the complaint.

6. It is contended by learned counsel for the appellant that State Commission had territorial jurisdiction to entertain this complaint, since purchase order was placed with respondent No.1, having its office at Ballabgarh, Haryana. It is further contended that machines were purchased by appellant for the purpose of earning livelihood for himself. He did not purchase the same for selling/re-selling purposes. As such, appellant is a consumer as per explanation under Section 2(1)(d) of the Consumer Protection Act, 1986 (for short as ‘ Act’ )

7 Taking up application for condonation of delay, for the reasons mentioned in the application, delay is condoned and application stands allowed.

8. State Commission in its impugned order has observed ;-

' On behalf of opposite parties it is argued by Shri R D Sehgal, Advocate that as the complainant had purchased four machines for commercial purpose, therefore, he does not fall within the definition of ‘consumer’ as defines in Section 2(1) (d) (ii) of the Consumer Protection Act, 1986. In support of his arguments learned counsel for the opposite parties has referred to the following judgments:-

In MeeraIndustries versus Modern Constructions, 2009(1) CPC 108( N.C.) Hon’ble National Commission has observed that where a consumer buy goods for commercial purpose and avails of services attached to the goods in the nature of warranty, he cannot be considered to be 'consumer' even for the purpose of services during the warranty period in view of the amendment to Section 2 (d) (ii) of the act, which came into force w.e.f. 15.3.2003.

Similar view has been taken by Hon’ble National Commission in case BillagiSugar Mill Ltd. versus M/s Kessels Engineering Works( P) Ltd., 2010(2) CPC 295( N.C.)

In case cited as SatishChander Gupta and Sons Versus Klick Nixon Limited& Anr. 2010(3) CPC 520(N.C.), Hon’ble National Commission has observed as under:-

' 11.Illustrating by example, Supreme Court held that a person, who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood or a person who purchases a truck for plying it as public carrier by himself or a person, who purchases a lathe machine or other machine to operate it himself for earning his livelihood, would be a consumer. But a person, who purchases an auto-rickshaw or a truck or a lathe machine or other machine, to be plied or operated by any other person, he would not be a consumer'.

The facts of the instant case are fully attracted to the authoritative pronouncements of the Hon’ble National Commission cited above.

In case law cited as Birla Technologies Ltd. versus Neutral Glass and Allied Industries Ltd., 2011(1) CPR 1 (SC) wherein the Hon’ble Supreme Court has held that :-

'(i) Consumer Protection Act, 1986 ---- Section 2(1) (d) (i) --- A person purchasing goods for commercial purposes is not a consumer. (Para 6)

(ii) Consumer Protection Act, 1986 ---- Section 2 (1) (d) (ii), after amendment ---- A person availing services for any commercial purpose is not a consumer. (Para 8)

(iii) Consumer Protection Act, 1986-Section 2(1) (d) (i) and (ii) --- The complaint filed after amendment of the Act---- Goods purchased for commercial purposes----Services were hired or availed of for commercial purposes---Complaint no maintainable. (Para 9)

(iv) Limitation Act, 1963 ---- Section 14---- Period spent in prosecuting proceedings before wrong forum ---- To be excluded while determining limitation. ( Para 10)

In Para 9 of Birla Technologies Ltd.’s case ( Supra) the Hon’ble Apex Court held:- ' 9. In view of the findings of the National Commission that the goods sold by the applicant to the respondent/complainant amounted to ‘goods’ and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purposes. Nothing was argued to the contrary. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view, it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1) (d) (i) the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15.3.2003 by way of the amendment by the same Amendment Act, as it is nobody’s case that the goods bought and used by the respondent herein and the services availed by the respondent’s livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto'.

The facts of the instant case are fully attracted to Birla technologies Ltd’s Case (Supra).

In view of the above, since the complainant had purchased four Hydraulic Mobile Cranes, therefore, it is proved that the cranes were to be plied by some other person and not be the complainant himself. More so, the complainant himself is the Managing Director of ‘ Gurubaksh Logistic India’ as is evident from the heading of the complaint itself. Thus, the complainant cannot be termed as a ' Consumer' in view of Section 2(1) (d) (ii) of the Consumer Protection Act, 1986 and thus his complaint is not entertainable on this ground alone '.

9. As far as, merits of this case are concerned, appellant himself admits that he has been carrying out the business of cranes service under the name and style of 'Gurubaksh Logistic India'. At the same time he has taken the plea that he is earning his livelihood from the machines in question.

10. It had no where been explained as to in what manner appellant is earning his livelihood for himself and as to how these four machines are being used by him at one time. Appellant himself admits that he is Managing Director of 'Gurbaksh Logistic India' but has no where stated as to whether it is a sole proprietor concern, partnership or is a company.

11. Further, as per appellant’s evidence, besides him, his family members and other family friend are using these machines. How the use of machines by family members of the appellant as well as his family friend, can be said to be ' as earning livelihood ' qua the appellant.

12. Expression ‘Consumer’ has been defined in Section 2 (1)(d) of the Act. Sub-Section (ii) of Section 2(1) (d) which is material is reproduced below ;

'Consumer' means any person who :-

(i) ……………………….

(ii) 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 and 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 purposes;

Explanation-- For the purpose of this cla

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use, '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 '. 13. Since, appellant’s family members and his family friend are using the machines for themselves, it cannot be said that they are also the consumers, as per the Act.14. We fully concur with the reasoning given by the State Commission. Thus, we do not find any infirmity or illegality in the impugned order. 15. Present revision petition being merit-less and also without any legal basis, is hereby dismissed with costs of Rs. 10,000/- (Rupees Ten Thousand Only). 16. Petitioner is directed to deposit the costs of Rs. 10,000/- by way of demand draft in the name of 'Consumer Legal Aid Account', within four weeks from today. 17. In case, costs are not deposited within the prescribed period, then petitioner shall be liable to pay interest @ 9% p.a., till realization. 18. List on 27th April 2012, for compliance.
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