Nakoda Machinery Pvt. Ltd vs John Crasta & Anr

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Vijay Kumar Pandey, Advocate, for the petitioner and Mr. Manu Krishnan, Advocate, for respondent-1, through video conferencing. None appeared for respondent-2.

This revision has been filed against the order of State Consumer Disputes Redressal Commission, Kerala dated 18.08.2015, passed in First Appeal No. 35 of 2014 (arising out of order of District Consumer Disputes Redressal Forum, Kasaragod dated 29.11.2013, passed in Consumer Complaint No. 26 of 2012), whereby the complaint was allowed and the petitioner was directed to replace Rock Breaker with a new one or refund Rs.6,25,000/-, pay Rs.1,00,000/- for physical and mental harassment and Rs.3000/- as the cost of litigation and the appeal filed by the petitioner has been dismissed.

The office has submitted report that the revision has been filed with delay of 400 days. The petitioner has filed an application for condonation of delay (I.A. No. 12640 of 2016), in which, it has been stated that State Commission, after hearing the arguments, in the appeal, reserved the judgment. The counsel for the petitioner told that after delivery of judgment, a certified copy of the same would be sent to the petitioner. When for a long time, the petitioner did not receive the copy of the judgment, then he wrote letters dated 16.06.2016, 19.08.2016 and 08.12.2016, to his advocate for updating the result of the appeal but his advocate did not reply. The petitioner also searched the status of the appeal on internet. Then he could know that the appeal was dismissed on 18.08.2015. The petitioner immediately downloaded the judgment and printed it. He came to Delhi on 11.12.2016 and contacted his counsel. Thereafter, the revision was drafted and filed on 20.12.2016. The delay has been caused for the reason that State Commission has failed for supply the copy of the judgment. This Commission, vide order dated 22.10.2019, called for a report from Registrar, State Consumer Disputes Redressal Commission, Kerala to the effect as to when free copy of the judgment was supplied to the petitioner. Registrar, State Commission, vide letter dated 26.11.2019, apprised that sending free copy of the judgment dated 18.08.2015 to the petitioner was not verified. In the facts and circumstance of the case, I.A. No. 12640 of 2016 is allowed and delay in filing of the revision is condoned.

John Crasta (respondent-1) filed Consumer Complaint No. 26 of 2012, for directing Nakoda Machineries Private Limited (the petitioner) (i) to replace Rock Breaker with a new one or pay Rs. 6,25,000/- i.e. cost of the Rock Breaker and (iii) to pay Rs. 5,30,000/- towards loss and damages. It has been stated in the complaint that the complainant purchased JCB 81, bearing chassis No. 1798955 and Engine No. 4H2188/1120175 for Rs. 23,75,000/- on 30.07.2011 and Rock Breaker for Rs.6,21,100/ on 09.08.2011, from Advaith Motors Private Ltd. (opposite party-2), who was an authorised dealer of Nakoda Machineries Private Limited (opposite Party-1), in order to earn his livelihood, out of the income derived from it, by way of self employment as the complainant got work of JCB and rock breaker, in the Industrial Estate, Kinfra Park, Seethangoli, Kasaragod. On the JCB, one year warrantee and on Rock Breaker, 6 months warrantee were given. Shortly after assembling the Rock Breaker with the JCB, its function was not found proper and complaint was made to Nakoda Machineries Private Limited. Again on 14.10.2011, the Service Engineer of Nakoda Machineries Private Limited examined the vehicle and found that the rock breaker was running slowly, in comparisons to required speed. He changed Hydraulic Hose Assembly, spending Rs. 7913/-. On 03.11.2011, leakage of oil was noticed. Then again complaint was made to opposite party-1. On 03.11.2011, the Service Engineer of opposite party-1 examined the vehicle and found that cylinder oil ring was damaged and leakage of oil from D.C. valve and necessary repairs were done. Oil leakage was again noticed and another complaint was made. Then on 03.12.2011, the Service Engineer of opposite party-1 examined the vehicle and found that there was no proper oil flow in the engine as such piston was damaged and rock breaker was not working properly as the required speed was lacking, due to which diesel consumption was also increased. Service Engineer compelled the complainant to purchase various accessories, side rod, net and washer etc. for repairing JCB. On the allegation that rock breaker was suffering from manufacturing defects and the opposite parties committed unfair trade practice in selling the defective machines, which was not functioning properly even during warrantee period; Due to which, the complainant spent Rs. 30,000/-, in repair and 150 litre diesel was wasted due to excess consumption. The complainant had suffered Rs.3,00,000/- as loss of earning and compensation of Rs.2,00,000/- for mental and physical harassment; this complaint was filed.

The petitioner filed its written reply on 23.04.2012 and contested the complaint. It has been stated that opposite party-1 was carrying on its business in Bangalore and opposite party-2 was carrying on its business at Mangalore, from where JCB and rock breaker were allegedly purchased. No cause of action arose within the territorial jurisdiction of Kasaragod as such District Forum had no territorial jurisdiction. The complainant owned several JCB and rock breaker and using it for commercial purposes. The present JCB and rock breaker were hired by Karnataka State Government and used for commercial purposes as such the complainant was not a consumer. It has been denied that the JCB and rock breaker were purchased from opposite party-2 and the complainant got work at Industrial Estate Kinfra park Seethangoli, for want of knowledge. It has been denied that the defective JCB and rock breaker were sold to the complainant. It has been stated that the operator of the complainant was unskilled person and roughly used rock breaker. The warrantee was given for the manufacturing defects and not for the defects arising due to mishandling the JCB and rock breaker.

The complainant filed documentary evidence (Ext.-A-1 to Ext. A-11) along with the complaint and an Affidavit of Evidence of John Crasta, who was also cross examined by the petitioner and an Affidavit of Evidence of the Service Manager. The petitioner did not adduce either documentary or oral evidence. In spite of service of the notice, opposite party-2 did not appear and the case was proceeded exparte against him.

District Forum by order dated 29.11.2013 found that it had territorial jurisdiction and the complainant was a consumer. From the evidence adduced by the complainant, defects in Rock Breaker, from very beginning, was proved. On these findings, the complaint was allowed and the petitioner was directed to replace Rock Breaker with a new one or refund Rs.6,25,000/-, pay Rs.1,00,000/- for physical and mental harassment and Rs.3000/- as the cost of litigation. The petitioner challenged the aforesaid order in Appeal No. 35 of 2014, which has been dismissed by State Commission, by judgment dated 18.08.2015. Hence this revision has been filed.

I have considered the arguments of the parties and examined the record. First of all, I take up the issue relating to territorial jurisdiction of District Forum Kasaragod. The counsel for the petitioner submitted that admittedly, the petitioner was carrying on its business in Bangalore and opposite party-2 was carrying on its business at Mangalore, from where JCB and Rock Breaker were allegedly purchased. No cause of action arose within the territorial jurisdiction of Kasaragod as such District Forum had no territorial jurisdiction. The complainant has filed Service Job Work Reports (Ext. A-4 to Ext.A-7 and Ext-A-11), which were proved by the Affidavit of Evidence filed by Service Manager. From these documents, it is proved that the opposite parties had provided services for repair of Rock Breaker at Seethangil, Kasaragod as such part of cause of action arose within territorial jurisdiction of District Forum Kasaragod and there was no lack of territorial jurisdiction.

The counsel for the petitioner pointed out the portion of cross examination of John Crasta , where he stated that "I also operate this excavator for doing external work. I get Rs. 1200/- per hour for running fees.......I am not operating this excavator.", and submitted that the complainant admitted running of JCB and Rock Breaker for commercial purposes. He had employed an operator for running it. The complainant was not a consumer and the complaint was not maintainable.

The word "consumer" has been defined under Section 2 (1) (d) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which is quoted below:-

[2. (1) (d).- "consumer" mean any person who,-

(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such use is made with approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for 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 such services for any commercial purpose;

Explanation.- For the purpose of this clause, "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 livelihood by means of self employment.]

Explanation was added by Act No. 50 of 1993 w.e.f. 18.06.1993 and slightly amended by Act No. 62 of 2002, w.e.f. 15.02.2003. Scope of the Explanation as well as expressions "commercial purpose" and "the purposes of earning livelihood by means of self employment" came up for consideration before Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583. In which, it has been held that the Explanation was an exception to an exception. Expression "commercial purpose" has not been defined as such its dictionary meaning has to be taken into consideration. "Commerce" means financial transaction, especially buying and selling of merchandise on large scale. As in the Explanation, the purposes of earning livelihood by means of self-employment, has been excluded from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such buyer from the purview of the "consumer" so long as it is used by the buyer or his family members or with the help of one or two other persons. It is question of fact and has to be decided in each case independently. In this case, three generator sets were purchased for the purposes of the factory by the complainant and it was held that it was for commercial purpose. In Rajeev Metal Works Vs. Mineral and Metal Trading Corporation of India, (1996) 9 SCC 422 , where raw material was purchased for production of the factory by the complainant, it has been held that it was for "commercial purpose".

In Cheema Engineering Services Vs. Rajan Singh, (1997) 3 SCC 131 , brick manufacturing machine was purchased by the complainant and Consumer Forums have held that it was for "commercial purpose". Supreme Court found that Consumer Forums have failed to decide as whether it was purchased for earning livelihood by means of self-employment, as such the matter was remanded to District Forum for deciding this issue. In Paramount Digital Colour Lab Vs. Agfa India Pvt. Ltd., (2018) 14 SCC 81 , it has been held that engaging one helper or the operator for operating, digital colour photography machine, does not oust the complainants from the definition of "consumer" as it was proved that they had purchased machine for earning their livelihood by way of self-employment.

From aforesaid cases, it is clear that a person, who purchases the goods for resale or for any commercial purpose or avails services for commercial purpose is not a consumer under Section 2 (1) (d). But if he proves that the commercial good is purchased or the service is availed for his personal use or exclusively for the purposes of earning livelihood by means of self-employment, then he is not excluded from the definition of the consumer. This issue has to be decided on the basis of the evidence adduced in the case.

In the present case, the complainant has stated that in order to earn his livelihood, out of the income derived from JCB and Rock Breaker, by way of self-employment as he had got work of JCB and rock breaker, in Industrial Estate, Kinfra Park, Seethangoli, Kasaragod, he had purchased these machineries. Apart from the fact that he had admitted that he had employed one operator for running JCB, there is nothing on record to say that he had any other source of livelihood. Supreme Court, in the aforementioned cases, has clearly held that employing one or two person for the help in running the machineries, does not oust the complainant from the purview of the definition of "consumer". As such there is no illegality in the findings of Foras below, holding the complainant as the consumer.

From Service Job Work Reports (Ext. A-4 to Ext.A-7 and Ext-A-11), which were proved by the Affidavit of Evidence filed by Service Manager, it was proved that Rock Breaker had created problem from the date of its purchase. In the Service Job Work Report, it has not been mentioned that Rack Breaker was roughly used by unskilled person. Findings of the Foras below that Rock Breaker was suffering from manufacturing defect does not suffer from any illegality.

ORDER

In view of aforementioned discussions the revision has no merit and it is dismissed.