State Consumer Disputes Redressal CommissionMr.Satish Gopal Deodhar, Prop. ... vs Mr.Niranjan Takale & Anr. on 6 October, 2008CONSUMER DISPUTES REDRESSAL COMMISSION



 

 CONSUMER DISPUTES REDRESSAL COMMISSION
 

MAHARASHTRA STATE, MUMBAI
 

 
 

FIRST APPEAL NO. 1167 OF 
1999                                   Date of filing : 25/06/1999
 

IN CONSUMER COMPLAINT NO. 32 OF 1998              
Date of order : 06/10/2008 
 

DISTRICT CONSUMER FORUM : NASHIK
 

 
 

Mr.Satish Gopal Deodhar
 

Prop. M/s.Amod Enterprises
 

D-92, M.I.D.C. Area, Ambad,
 

Nashik  422 
010.                                                      Appellant/org. 
complainant
 

            V/s.
 

1. Mr.Niranjan Takale
 

    Prop. M/s.Logical Solutions
 

    9, Yashodhan, Kanherewadi, Nashik-422 001.
 

2. Mr.Vijay R. Kirloskar
 

    The Chairman & Managing Director
 

    M/s.Kirloskar Electronic Co. Ltd.
 

    Industrial Suburb, Rajaji Nagar,
 

    Bangalore  560 
010.                                            Respondents/org. O.Ps.
 

 
             Corum : Justice Mr.B.B. Vagyani, Honble President
                            Shri P.N. Kashalkar, Honble Judicial MemberSmt. S.P. 
Lale, Honble Member
 

            Present: Mr.H.G. Misar, Advocate for the 
appellant.Mr.V. 
Mannadiar, Advocate for the respondent No.2.- : ORDER :-Per Justice Mr. B.B. Vagyani, 
Honble President
 

            
This appeal filed by the complainant in consumer complaint No.32/1998 is 
directed against the rejection order dated 27/05/1999 passed by District 
Consumer Forum Nashik.  The Forum below on scrutiny of material placed on record 
has concluded that the transaction involved in the consumer complaint is of 
commercial nature.We heard Mr.H.G. Misar, Advocate for the appellant/org. complainant and Mr.V. 
Mannadiar, Advocate for the respondent No.2.Respondent No.1 is an Authorised Dealer of M/s.Kirloskar Electric Co. Ltd.  The 
complainant purchased a Computer Numerically Controlled Lathe Machine for Rs.17 
Lakhs manufactured by M/s.Kirloskar Electric Co. Ltd. through appointed dealer 
M/s.Logical Solutions, Nashik in April 1995.  The machine was supplied.  
However, the complainant has made a grievance that the incomplete equipment was 
delivered though the full payment was made.  The Authorised Dealer paid 
Rs.60,000/- to the complainant and failed to pay Rs.70,000/- with interest.  The 
complainant therefore filed consumer complaint against the Authorised Dealer and 
the Manufacturer.The following reliefs are claimed by the complainant in the consumer complaint 
:-1)      Complainant should be given an account for balance amount of 
Rs.1,23,995/- along with all the necessary documents.2)                
Complainant should be reimbursed with Rs.70,000/- forthwith along with an 
interest of Rs.67,800/-, compensation of Rs.2,35,000/- for the deceipt and 
mental agonies.3)                
M/s.Kirloskar Electric Co. Ltd. should supply spare parts at their own 
cost if and when required for at least five years from now and render free 
service by deputation of their personnel for complainants machine whenever 
needed, also for a period of five years from now.The O.Ps. filed written statement and opposed the consumer complaint.The main contention raised on behalf of O.Ps. is that the machine is purchased 
for commercial purpose and this being the position the complainant is not a 
consumer within the definition ofSection 2(1)(d)of Consumer Protection Act, 
1986.  The Forum below examined the material placed on record and has come to 
the conclusion that the transaction is for commercial purpose and therefore the 
complainant is not a consumer.From  the material placed on record, it is revealed that the huge amount of 
Rs.17 Lakhs was spent by the complainant on Computer Numerically Controlled 
Lathe Machine.  The complainant runs this machine in three shifts to earn more 
profit.  He had purchased the part known as Chuck to earn more profit.  The 
part Chuck is not integral part of Computer Numerically Controlled Lathe 
Machine.  In order to earn more profit, the complainant placed the order for 
Chuck with O.P.No.1.  The documentary evidence placed on record would clearly 
go to show that O.P.No.1 had placed the order for machine only and not for 
Chuck.  The O.P.No.1 admits that he was to supply the part Chuck to the 
complainant for which he had taken price of it from the complainant.  It is an 
admitted fact that on failure to supply Chuck the O.P.No.1 returned the 
partial amount of consideration to the complainant.  Therefore, the complainant 
has asked remaining amount of consideration to the tune of Rs.70,000/- from the 
O.Ps.  In fact there is no deficiency as such on part of the manufacturer.  
There is no whisper in the complaint about manufacturing defects in the Lathe 
Machine manufactured by O.P.No.2.  The complainant did not ask any service from 
the O.Ps.  He is interested in refund of money.It is material to note that the O.Ps. asked the complainant to furnish full 
particulars about the list of workers employed by him in his factory.  However, 
the complainant did not disclose number of workers employed by him in his 
factory.  During the course of arguments, we asked the complainant, who was 
personally present before us about exact strength of workers.  He replied orally 
that he had engaged 12 workers.  From the material placed on record, it is 
beyond doubt clear that the complainant has purchased machine for commercial 
purpose.  He runs his factory in three shifts to earn profit.  He had purchased 
the part known as Chuck in order to earn more profit.  He engages 12 workers 
in his factory.  The complainant is therefore not a consumer within the 
definition ofSection 2 (1)(d)of Consumer Protection Act, 1986.  The Forum 
below has rightly concluded in its order that the transaction is purely for 
commercial purpose and that the complainant is not a consumer within the 
provisions ofConsumer Protection Act, 1986.The Learned Advocate for the appellant Mr.Misar submitted that if the 
manufacturer undertakes to keep the machinery in good working condition during 
the period of warranty, the purchaser is a consumer even if machine is sold for 
commercial purpose.  In order to highlight this proposition, Advocate Mr.Misar 
pointed out some of the judgements of the higher Forums.  On the other hand, 
Learned Advocate Mr.Mannadiar relied upon number of rulings. We would like to 
refer some of the well known prominent decisions of the Supreme Court, which 
clarifies the concept of commercial purpose.The Supreme Court in the case of Laxmi Engineering Works V/s. PS.G. Industrial 
Institute, (1995) 3 SCC 583, has explained the expression commercial purpose.  
The Supreme Court made it clear after taken into consideration several words 
employed in the explanation i.e. usage them by himself, exclusively for the 
purpose of earning his livelihood and by means of self-employment make the 
intention of Parliament abundantly clear, that the goods bought must be used by 
the buyer himself, by employing himself for earning his livelihood.  The Supreme 
Court referred the consistent view taken by the National Commission and observed 
that where the person purchased goods with a view to use such goods for 
carrying on any activity on a large scale for the purpose of earning profit he 
will not be a consumer within the meaning ofSection 2(1)(d)(i)of the 
Consumer Protection Act, 1986.  The Supreme Court has given illustration and 
observed that if the commercial use is by the purchaser himself for the purpose 
of earning his livelihood by means of self-employment, such purchaser of goods 
is yet a consumer.  At the same time, the Supreme Court made it clear that a 
person who purchased an Autoricksha, a car or a Lathe Machine or other machine 
to be plied or operated exclusively by another person would not be a consumer.  
The Supreme Court clearly observed that what is commercial purpose is a question 
of facts to be decided in the facts of each case.The Supreme Court in the case of Cheema Engineering Services V/s. Rajan Singh, 
(1997) 1 SCC 131 observed that the explanation excludes from the ambit of 
commercial purpose in sub clause (i) ofSection 2(1)(d), any goods purchased by 
a consumer and used by him exclusively for the purpose of earning his livelihood 
by means of self employment.  Such purchase of goods is not a commercial 
purpose.  The word self-employment is not defined.  Therefore, it is a matter 
of evidence.  Unless there is evidence and on consideration thereof, it is 
concluded that the machine was used only for self-employment to earn his 
livelihood without a sense of commercial purpose by employing on regular basis, 
the employee or workmen for trade in the manufacture and sale of bricks, it 
would be for self-employment.  Whether a particular person is using machine 
exclusively by himself or whether he employed any workmen and if so, how many 
are the matter of evidence.  The burden is on the purchaser to prove them.In the case in hand, the complainant tried to suppress the very material 
information about the workers employed by him to run Lathe Machine.  He orally 
conveyed to us during the course of arguments that he has employed 12 workers.  
We have already concluded that the complainant has spent Rs.17 Lakhs on the 
sophisticated Lathe Machine.  He runs machine in three shifts to earn profit.  
Modern devises are also purchased to earn more profit.  The complainant runs his 
machine for commercial purpose.  He runs the machine through workers.  The 
element of self-employment is totally missing in this case.  The Forum below 
therefore rightly concluded that the complainant has purchased the machine for 
commercial purpose to earn profit.  The dismissal order is therefore perfectly 
legal and correct.  In the result, we pass the following order :--: ORDER :-1.Appeal stands dismissed with cost of Rs.3,000/-.2.         Copies of the order be furnished to the parties.(S. P. Lale)                            (P.N. 
Kashalkar)                    (B.B. Vagyani)
 

               Member                               
Judicial Member                      President
 

 
 

dd.