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Judgment
This revision petition has been filed by the petitioner M/s. Ess Dee Nutek Infinities (P) Ltd. against the order dated 13.7.2010 of the State Consumer Disputes Redressal Commission, Uttar Pradesh (in short 'the State Commission') passed in Appeal No.991/2007.
Brief facts of the case are that respondents herein were the original complainants before the District Consumer Disputes Redressal Forum, Gorakhpur (in short 'the District Forum'), who filed the consumer complaint bearing No.480 of 2005 before the District Forum alleging that the digital printing machine purchased by them from the petitioner did not work properly right from the installation stage. It was alleged that even on the day of installation, the engineers who had come to install the machine stated that certain parts are required to be changed. The machine did not work even after changing of these parts. The total cost of the machine was Rs.15,50,000/- and the complainant had paid Rs.50,000/- as advance and Rs.9,65,000/- at the time of installation. It has been admitted by the complainants that the full amount was not paid at the time of installation as the machine did not work properly at that time, though as per the conditions of the agreement the total amount was to be paid at the time of installation.
Aggrieved by the non-functioning of the machine, the complainants filed a consumer complaint No.480 of 2005 before the District Forum. The complaint was resisted by the opposite party by filing the written statement. The District Forum vide its order dated 01.03.2007 allowed the complaint as under:-
"Plaint of the complainant is allowed. The O.P.S are directed that digital printer machine, within a month from the date of order, after refunding amount of Rs.10,50,000/- paid by the complainant and Rs.41,000/- as compensation, expenses on transportation will be borne by the O.P. and withdraw the machine. The O.P. will pay interest @ 6% p.a. on Rs.10.50,000/- from24-12-05 to the date.
Aggrieved by the order of the District Forum, the petitioner/opposite party preferred an appeal bearing No.991/2007 before the State Commission. The State Commission vide its order dated 13.07.2010 dismissed the appeal.
Hence the present revision petition.
Heard the learned counsel for the parties and perused the record. Learned counsel for the petitioner stated that as per the agreement the remaining amount of Rs.5,00,000/- was not paid which was due under the agreement. Consequently a civil suit was filed bearing No.146/11in the Court of Sh. Pitamber Dutt; AD & SJ (Central)-17, Delhi. To counter civil suit, the complainant have filed the present complaint.
Learned counsel for the petitioner further stated that the complainants have raised another issue that the same machine has not been supplied, which was agreed upon in the agreement. In this connection, learned counsel stated that at the time of delivery and installation there was no objection from the complainants and after using the machine for quite some time, this objection has been raised, which is not tenable. In the order of the Additional District Judge in the Civil Suit filed by the petitioner, this plea of the defendant/respondents has not been accepted by observing the following:-
"41 The defendant sought to avoid his liability to pay the amount on the plea that plaintiff committed default in supplying the machine which fact came into the knowledge subsequently. But his above plea cannot be accepted because the said printer was delivered to the defendant vide delivery challan dated 15.03.2005 Ex. PW1/9 wherein the modal number of the printer PH 3212 has been clearly mentioned. The defendant has not raised any objection at the time of obtaining delivery of the said printer. If the defendant was aggrieved of non-supply of the agreed printer by the plaintiff, he should have raised objection with respect to the make of the printer supplied to him immediately on the delivery of the modal, however, he has not raised any such objection at that point of time. The said digital printer PH 3212 TR was subsequently installed at the premises of the defendant as per the installation report dated 18.03.2011 Ex.PW1/11 & Ex.PW1/12 but defendant has not raised any such objection even at that time. The plaintiff has placed on record the certificate issued by the manufacturer Ex.PW/1/8A & Ex. PW1/8B to the effect that the printer 3200 TR and 3212 is one and the same modal with all the same specification. The defendant has not placed any material on record which could substantiate his plea that the printer supplied to him was not alike to the printer ordered. Moreover, defendant has accepted the delivery of printer PH 3212 without any objection, therefore, he cannot be allowed to say at this stage that plaintiff has committed default by not supplying the printer as per the agreement. The defendant thus cannot be allowed to avoid his liability towards plaintiff on this ground."
It was further argued by the learned counsel for the petitioner that the machine was purchased for a commercial purpose and this objection was raised in the written statement filed by the petitioner. The complainant No.2 is a proprietorship concern and is not covered under explanation attached to Section 2(1)(d) of the Consumer Protection Act, 1986. It was further stated that complainants are involved in multiple business and were filing income tax return for about 20 years as this being confirmed by the complainant in his statement in his examination- in- chief as well as in cross examination before the civil court in the suit that was instituted by the petitioner. Thus, it is clear that the machine was purchased for commercial purpose. In support of his argument, learned counsel referred to the following judgment:-
Rohit Chaudhary & Anr. Vs. M/s. Vipul Ltd., CC No.276 of 2015, decided on 11.05.2015 (NC). It has been held that:
"9. We do not agree with the aforesaid contention. On careful reading of the explanation to Section 2 (1) (d) of the Act, it is clear that in order to take advantage of the explanation, the complainant is required to establish that the services availed by him were exclusively for the purpose of earning his livelihood by way of self employment."
Learned counsel further stated that the complainant No.1 in his statement given before the civil court has clearly stated that they have not written any letter to the opposite party that the machine did not work even from the date of its installation. Similarly, no letter has been written by the complainants seeking refund of the price paid for the same. The District Forum has relied upon the envelope to conclude that the letter was written to the opposite party. However, the complainant in his statement before the civil court has admitted that envelope does not belong to him and he has never sent any letter. Thus, finding of the District Forum is patently wrong and the District Forum has wrongly relied upon this envelope as there was no communication sent by the complainants to the petitioner in respect of the defects in the machine or for refund of the amount paid. The complaint was premature and without any cause of action. When the machine was installed, there was no objection from the side of the complainants as would be clear from the installation report dated 18.3.2005 wherein the following has been recorded and signed by the complainant:-
"Machine has been properly installed and working to the entire satisfaction of the customer as per agreement.
We have duly explained all operative guidelines of the machine to the customer Authorized Operative Staff of the customer.
From the above it is clear that the complainants' staff was also trained in the machine's working to the full satisfaction of the complainants at the time of installation. After that as and when any defect developed, the petitioner company attended that defect to the full satisfaction of the customer. Even after the instalment of the machine to the full satisfaction of the complainants the remaining amount of Rs.5,00000/- was not paid by the complainants. The job card was signed by the employees of the complainants. The learned counsel further mentioned that though civil suit filed by the petitioner has been dismissed, but appeal is pending before the Delhi High Court.
Learned counsel for the respondents/complainants stated that the basic deficiency on the part of the petitioner is that the petitioner supplied a different machine than which was agreed in the agreement. In the agreement, the machine with Model -10.5 Tr-head Model 3200 TR, was ordered whereas actual machine supplied was with Model-Nutek Leo 3200TR. It was mentioned by the learned counsel for the respondents that the District Forum has considered all the points raised by the petitioner herein and has decided the complaint in favour of the complainants. Learned counsel for the respondents/complainants further stated that the machine started troubling right from the day of installation. The machine was repaired on 29.03.2005 as would be clear from the job card dated 29.03.2005.
It was mentioned by the learned counsel for the respondents that both the fora below have given concurrent finding of fact that the machine was not working since installation and that is why both the fora below have ordered refund of the amount paid by the complainants. Against the concurrent finding of facts by the fora below, the scope under the revision petition is quite limited and only jurisdictional aspects are to be seen.
We have carefully considered the arguments advanced by the learned counsel for both the parties and have examined the material on record. First of all, it is seen that both the fora below have given concurrent finding of facts that the machine started giving trouble from the day of installation and the defect could not be removed by the petitioner. This Commission cannot reassess the facts in the light of the judgment of the Hon'ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, wherein, the following has been held:-
"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."
The civil suit filed by the petitioner for recovery of Rs.5,00,000/- as the balance amount for the cost of the machine, has been dismissed vide order dated 27.02.2013 with following observation:-
"63. In view of the above facts and circumstances, I am of the considered view that the defendant was required to pay the remaining amount of Rs.5,00,000/- to the plaintiff after the installation of printer. The defendant has proved on record that the said printer has not functioned properly since the day of its installation till 03.07.2005 on which date the employee of the plaintiff has taken out four vital component of the said printer and has not replaced the same. Once the printer in question has not started working properly since the day of its installation which was pre-requisite for paying the remaining amount then plaintiff cannot recover the remaining amount of Rs.5,00,000/- from the defendant. The plaintiff is thus not entitled to recover the suit amount from the defendant. The plaintiff has failed to discharge the onus of Issue No.6, same is accordingly decided against the plaintiff."
From the above observation of the learned Additional District Judge, it is clear that even in the civil suit, it has been found that the complainants have proved on record that the said printer has not functioned properly since the day of its installation. This finding is based on elaborate evidence that was filed before the civil court. Even though the appeal is pending against this order passed in civil suit, the fact remains that the observations made by the learned Additional District Judge cannot be ignored.
The only legal point raised in the revision petition is that the complainants are not consumer as the complainant No.2 is proprietorship concern and the machine was purchased for commercial purpose. Learned counsel for the petitioner has stated that the complainants are filing income tax return for about 20 years. They cannot be considered as consumer because the machine has not been purchased for earning their livelihood by means of self- employment. The complainant No.1 is the proprietor of complainant No.2. As the complainant no.1 got installed printer at the premises of complainants, the complainant No.1 is a consumer as the same was to be used for earning his livelihood by means of self- employment even if no averment is made in this regard. As no other purpose is mentioned in the complaint for purchasing the digital printer, the same will be construed to be purchased for earning livelihood by means of self-employment as the Hon'ble Supreme Court in Paramount Digital Color Lab & Ors. etc., Vs. Afga India Pvt. Ltd. & Ors. etc. III (2018) CPJ 12 (SC) has held the following:-
"13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that case. Whether the assistance of someone is required to handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a "commercial purpose" and not for "self-employment", the complainant may not get the benefit of the Explanation to Section 2 (1)(d) of the Act. The buyers of the goods or commodities for "self-consumption" in economic activities in which they are engaged would be "consumers" as defined in the Act. Furthermore, there is nothing on record to show that the appellants wanted to use the machine in question for purposes other than "self-employment".
Therefore, the point to be considered is whether the appellants have purchased the machine in question for "commercial purpose" or exclusively for the purposes of earning their livelihood by means of "self-employment". There cannot be any dispute that the initial burden is on the appellants to prove that they fall within the definition of "consumer". It is pertinent to mention that respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion."
Based on the above discussion, we do not find any illegality, material irregularity or jurisdictional error in the order dated 13.07.2010 of the State Commission which calls for any interference from this Commission. Accordingly, the revision petition No.3730 of 2010 is dismissed.