By Sri. MOHANDASAN.K, PRESIDENT
1.The complaint in short is as follows: -
Complainant is conducting manufacturing and trading of Mattresses at Kottakkal and other places in Kerala. The complainant purchased one Industrial sewing machine (Tapeede Machine with Table Head 2605 & All Acc) and cutter attachment etc from the opposite party on 05/03/2016. The complainant paid an amount of Rs. 1,00,000/- on 29/02/2016 and Rs. 1,47,100/- on 19/03/2016 to the opposite party as the value of the machineries. The complainant was assured by the opposite party that the machinery is high quality one and the value of the machinery is Rs.2,47,100/-. Believing the words of the opposite party, the complainant purchased the machineries after paying an amount of Rs. 2,47,100/- and opposite party offered five years warranty to the machineries.
2. Complainant further contented that after receipt of an amount of Rs.2,47,100/- the opposite party instead of supplying the machineries worth Rs. 2,47,100/-, the opposite party sent the machineries worth Rs.1,07,100/- and the machineries sent were second hand one newly painted. The machineries supplied by the opposite party is not having the required minimum quality as assured by the opposite party. It is a low quality product sold for excessive price. The machineries are not in a working condition. The complainant on several times requested the opposite party to take back the machineries and refund the price. But opposite party is not ready for the same. Complainant suffered a huge financial loss and mental agony due to the low quality machineries supplied by the opposite party. Hence the complaint seeking refund of the amount paid and also compensation of Rs. 1,00,000/-.
3. On admission of the complaint notice was issued to the opposite party and on receipt of notice, the opposite party did not turned up and hence an exparte order was passed by Forum allowing the complaint. Thereafter the opposite party preferred appeal No.37/2018 before the State Consumer Disputes Redressal Commission and the same was allowed on 24/01/2019 directing the District Commission to provide opportunity to the appellant to file version and to adduce evidence if any and on receipt of records from the State Commission issued notice to parties and on receipt of notice the opposite party entered appearance and filed detailed version denying the entire averments and allegations in the complaint.
4. The opposite party contented that the complainant is not a consumer as per section 2(d) of the Consumer Protection Act 1986. The opposite party submitted that complainant purchased the machinery in question for the purpose of industrial/commercial usage and there is no pleading in the present complaint that the complainant purchased the aforesaid machine exclusively for the purpose of earning his livelihood by means of self employment. The opposite party quoted from the complaint that the “Complainant is conducting manufacturing and trading of the mattresses in the above shown address on branches at Kottakkal and other places in Kerala”. The opposite party also contended that the Consumer Protection Act 1986 do not provide jurisdiction to the Consumer Forum where the complainant resides. But the act confer the territorial jurisdiction were the opposite party resides or doing his business and so the Delhi Central District Consumer Forum only have territorial jurisdiction to entertain the present complaint if any. The opposite party also contended that the complaint does not reveal the alleged defects of the machine. The opposite party also contended that the complainant attached with the complaint, the bill of the first purchase of Rs. 1,07,100/- and claiming the deficiency of service of the second purchase of machines for a sum of Rs. 2,47,100/-. The complainant concealed the material facts before the Consumer Commission qua the details of the purchase of the machinery from the opposite party. The complainant did not disclose the true and correct fact before Consumer Commission. Form-C attached by the complainant reveals the true fact. In Form-C column No.13 has mentioned that the purpose of the machine is for resale and so admittedly machine is not for the use of complainant. The complainant has not provided the Form-C of the purchase of the invoice for sum of Rs. 2,47,100/- No. 01195 dated 05/03/2016 to opposite party after the repeated request of reminder and thereby the opposite party implicated financial loss also. So, the prayer of the opposite party is to dismiss the complaint with cost to the opposite party.
5. The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A4 and the documents on the side of opposite party marked as B1 to Ext.B5. Ext. A1 is copy of quotation dated 30/01/2016 for Rs. 2,49,900/- , Ext. A2 is copy of delivery receipt original for Rs. 10,440/-, Ext. A3 is copy of retail invoice dated 05/03/2016, Ext. A4 is copy of accounts statement of M/s Barza Trading Company dated 29/09/2016. Ext. B1 is copy of quotation dated 16/01/2016. Ext. B2 is Authorisation letter dated 20/09/2019, Ext. B3 is copy of retail invoice dated 05/03/2016, Ext. B4 is Bill copy issued to the complainant by the opposite party dated 21/06/2016, Ext.B5 is copy of photograph of the industrial sewing machine (Tapeede with table Head).
6. Heard complainant and opposite party, perused the affidavit and documents. The following points arise for consideration:-
- Whether the complaint is maintainable?
- Whether there is deficiency in service and unfair trade practice on the part of the opposite party?
- Relief and cost?
7.Point No:1,2&3
The opposite party has got a specific contention that the complaint is conducting
manufacturing and trading of the mattresses at Kottakkal and branches at other places in Kerala. It is also contented that there is no contention that complainant purchased the aforesaid machine exclusively for the purpose of earning his livelihood by means of self employment. The complaint is being filed under Consumer Protection Act 1986, it is also contented the opposite party that the Consumer Disputes Redressal Forum do not have territorial jurisdiction also to entertain this complaint. The submission is that as per the Act the territorial jurisdiction confers where the opposite party resides or doing his business and so the Delhi Central District Consumer Forum has got jurisdiction to entertain the present complaint. More over the Form No-C produced as part of evidence, Column No. 13 has mentioned that purpose of the machine is for resale and so it is definite that the machine is not for the use of complainant.
8. It appears there is no merit in the contention of the opposite party regarding the territorial jurisdiction of the complainant to approach the District Commission since the matter/article in dispute delivered to the complainant by the opposite party at the complainant’s business place Kottakkal. But regarding the contention, the purpose of resale and also manufacturing and trading of mattresses with branches in various places in the state of Kerala makes the position a different ankle. The Consumer Protection Act provides protection in the matter of earning for the livelihood of the consumer by means of self employment. The business of resale is exclusively out of the scope of Consumer Protection Act. Since the opposite party has got specific averment in the version regarding maintainability, the complainant ought to have answered the issues in the affidavit or otherwise. It appears no explanation is provided by the complainant regarding the issue of maintainability. So, we do not consider merit in the contention of the complaint regarding the deficiency in service of the opposite party and we hold the complaint is not maintainable as per Consumer Protection Act.
9. In the light of above facts and circumstances we hold that the transaction involved in this complaint is of commercial nature and so we dismiss this complaint finding that the complaint is not maintainable as per the provisions of Consumer Protection Act.
Dated this 24thday of August, 2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant :Nil
Documents marked on the side of the complainant : Ext.A1to A4
Ext. A1 : Copy of quotation dated 30/01/2016 for Rs. 2,49,900/-.
Ext.A2 : Copy of delivery receipt original for Rs. 10,440/-.
Ext. A3 : Copy of retail invoice dated 5/3/2016.
Ext.A4 : Copy of accounts statement of M/s Barza Trading Company dated
29/09/2016.
Witness examined on the side of the opposite party :Nil
Documents marked on the side of the opposite party : Ext. B1 to B5
Ext. B1 : Copy of quotation dated 16/01/2016.
Ext. B2 : Authorisation letter dated 20/9/2019.
Ext.B3 : Copy of retail invoice dated 5/3/2016.
Ext.B4 : Bill copy of issued to the complainant by the opposite party dated
21/06/2016.
Ext.B5 : Copy of photograph of the industrial sewing machine (Tapeede with table
Head).
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
