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Judgment
FACTS barely needed for the disposal of this complaint are that complainant purchased six Air Conditioners to be installed in his jewellery shop at Jammu for a sum of Rs. 1,39,990.00 though the date of purchase is not given in the complaint but it emerges that these have been purchased sometime in September, 1990. They proved faulty. Since the Air Conditioners were not put to use from October, 1990 to April, 1991. In April, 1991 when the Air Conditioners were put in service it was found that four of such were faulty. Matter was brought to the notice of O.P. O.P. did not address himself to the complaints. Finally legal notice was sent to him and the Air Conditioners were not made workable.
O.P. took a stand in the written version that the complainant is not a consumer. These were for commercial purpose, and secondly the complainant failed to make any complaint regarding non-function of such Air Conditioners during the warranty period, and thirdly there is no deficiency in service. However, this Commission by its judgment dated 9.1.1996 allowed the complaint and directed the O.P. to replace the Air Conditioner with a guarantee of one year within six weeks from the date of order failing which refund of whole money together with interest at the rate of 18 per cent per annum. This finding of this Commission was assailed before the Division Bench of the Hon''ble High Court in appeal. Hon''ble High Court remanded the case back to this Commission on the ground that the judgment of the Commission was not based on the evidence. Neither the deficiency in service was proved nor the defect during the warranty period was proved and more so Commission did not address itself to the provisions of Section 4(d) of J&K Consumer Protection (Amendment) Act, 1997. This Explanation reads as under : "For the purpose of Sub-clause (i) ''Commercial purpose'' does not include use by a consumer of goods bought and used by him exclusively for the purposes of earning his livelihood, by means of self-employment."
After the case was remanded back, opportunity of producing evidence was given to both the parties. Complainant filed his affidavit and was cross-examined. Similarly, O.P. also has examined two witnesses, Ashwani Sharma and Anil Sharma.
Heard learned Counsel for the parties. First we will deal with the point raised that the complainant is not a consumer because admittedly the Air Conditioners were purchased for installing them in the business room of jewellery shop of the complainant. So far this fact is concerned it is admitted that there is no dispute between the parties that 6 number of Air Conditioners were purchased for the show room of the big concern of the complainant. So far as the judgment of the Hon''ble High Court is concerned we understand that the Hon''ble High Court has been convinced that the Air Conditioners were purchased for commercial purpose we have been only asked to address ourselves as to whether it comes under the Explanation that the business run by the complainant was for the purpose of earning his livelihood by means of self-employment.
IT has been admitted by the complainant in his statement that Air Conditioners were installed in the shop to give comforts to the employers/employees and customers who visit the shop. From the evidence it appears that the complainant is running a big jewellery concern which obviously cannot come under the explanation restated above. Learned Counsel for the O.P. has vehemently argued that the Air Conditioners were purchased for commercial purpose and complainant is running a big jewellery concern and Gold Smith shop. Learned Counsel for O.P. has relied on New Empire Silk House v. Carrier Aircon Ltd., II (1994) CPJ 564. This was a case before Uttar Pradesh State Consumer Disputes Redressal Commission regarding same facts. Complainant purchased an Air Conditioner for the shop from the O.P. which was found faulty. It was held therein that the air conditioning unit was made for commercial purpose, as such the purchaser cannot be considered as a Consumer within the meaning of Section 2(1)(d)(i) of the Consumer Protection Act, 1986. Thus the complaint was not entertained. Such views have been expressed in other authorities also. CIII (1995) CPJ 73 (NC), Revision Petition No. 122 of 1990 dated 5.10.1995 by National Consumer Disputes Redressal Commission, New Delhi, and Kusumam Hotels (P.) Ltd. v. Neycer India Ltd., III (1993) CPJ 333 (NC). Here in the case in hand it is not only an admitted fact that Air Conditioners were purchased for installation in a big jewellery concern but even the complainant in Para 9 of his complaint has demanded Rs. 3.00 lakhs compensation as a loss in business. It obviously shows that the complainant has purchased the Air Conditioners only for commercial purpose and more so there is not an iota of evidence to show that the shop was on a small scale for self-employment. During the arguments learned Counsel for the complainant stated at the Bar that he does not press for the compensation for loss of business but this does not help him at this stage. Demanding of compensation for commercial loss ipso facto proves that the goods were purchased for commercial purposes. By deleting this relief it does not disprove the fact that goods were purchased for commercial purposes.
LEARNED Counsel for the complainant has repelled these arguments by contending that when the defect is found within the warranty period it does not affect whether the goods were for commercial purposes. He has relied on Amtrex Ambience Ltd. v. Alpha Radios, I (1996) CPJ 324 (NC). In this case also faulty Air Conditioner was the subject-matter of the dispute. National Consumer Disputes Redressal Commission, New Delhi has held that the complainant does not come under the definition of consumers because the Air Conditioner was for commercial purposes. The said Commission has further held that the defect was found during the warranty period and manufacturer has undertaken to remove the defects even after the warranty period also so they set aside the judgment of the State Commission. LEARNED Counsel for the complainant argued that here in this case also defects were found during the warranty period. But we do not agree. In this case, complaint has been made in a haphazard manner. Nowhere it is stated as to when the Air Conditioners were purchased. Warranty Card has not been produced before us, so we could not go through the contents of the Warranty Card. Later it has been stated that in September, 1990, the season was not ripe for the use of Air Conditioners so Air Conditioners were put to use in April, 1991. It is the fact that in the written version the O.P. has admitted in Para 9 that the Air Conditioners were installed in April, 1991 but it does not mean ipso facto that the warrnty period starts from April, 1991. Complainant if relied on the warranty period should have clearly stated the date of the purchase, date of installation and the original copy of the Warranty Card and this should have been placed on the record so that Commision could know the terms and conditions of the Warranty Card and from which date warranty starts. In a common parlance warranty always starts from the date of purchase and not from the date of installation. It could have been cleared from the contents of the Warranty Card but that has not been produced. Even the complainant in his statement has not stated as to when the Air Conditioners were purchased and when the delivery took place. He has not even said that the warranty period starts from such and such date. So, we are of the firm opinion that the complainant has failed to prove that the fault was found during the warranty period, as the complainant had not approached the O.P. within the warranty period intimating the fault in the Air Conditioners and it could not be said that there was any deficiency in service. For these reasons, therefore, we are of the view that the complainant has failed to prove his case which is dismissed. No order as to costs. Complaint dismissed.