Shri Pal Kala vs Rati Pal & Anr

Dr. S.M. Kantikar, J.

The instant appeal is filed under Section 19 of the Consumer Protection Act, 1986 against the impugned order dated 10.2.2010 passed by the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench at Jodhpur (herein "The State Commission"), wherein the complaint No. 5 of 2007 was dismissed.

The brief facts are that, the complainant, Shripal Kala runs a business in the name of Kala Photo Colour Lab at Jodhpur for his livelihood. After going through the advertisement, he had placed an order for the photo machine "Fuji Frontier 375" for 69,00,000/- from OP-1. The complainant had paid 2 lakh towards advance and thereafter entire amount of ₹66,95,000/- was paid. The OP issued the bill for payment of 66,13,360/- therefore, as per complainant, he paid excess amount of Rs.81,640/- to the OP-1. The machine was delivered by the OPs on 25.6.2004 at Jodhpur. Later on, the complainant came to know that the machine was not as per the specifications.

The accessories and software were not installed alongwith the machine. The power supply was also faulty, which costed him additional 3,00,000/-. The complainant informed it to the OPs and made several requests but, OPs turn deaf ears towards his request. After considerable delay, one officer of the OP-1, visited the complainant's place, inspected the machine and stated that some parts are required to be repaired. The representative of OPs took away the power supply unit and the CD containing Software alongwith him, thereby putting the complainant in further difficulty. The complainant further alleged that the market value of the machine was about 40,00,000/-, however, OP-1 has recovered ₹66,95,000/- from him. Thus, the OP-1 had illegally charged excessive amount of 26,13,360/- which needs to be refunded. On those grounds, the complainant had filed a complaint before the State Commission and claimed 87,48,360/- from the OPs.

The opposite party(s) filed joint written version and denied all the allegations of the complainant and submitted that the complaint was false and frivolous. The main objection was that the machine was purchased for business purpose, thus, it was for commercial use. Hence, the complainant does not come under the purview of the Consumer Protection Act as a 'consumer'. The complainant did not prove that there was a manufacturing defect. The OPs further submitted that there was settlement arrived between the parties in the criminal case filed by the complainant against the OPs. As per the settlement, the OPs had paid Rs.4,90,882/- to the complainant on 25.10.2005. Therefore, there was no question of any further refund of Rs.81,640/- to the complainant. The OPs have never charged excess amount, nor there was any deficiency in service from them.

On the basis of pleadings and evidence the State Commission dismissed the complainant observing that the machine was purchased for business purpose and the complainant was not a 'consumer'. Being aggrieved by the order of the State Commission, the complainant filed the instant appeal.

We have heard the Learned Counsel for both the parties and given our thoughtful consideration to the arguments advanced by both the parties. The Learned Counsel for the complainant reiterated the facts mentioned in the complaint and submitted that the opposite party(s) indulged into unfair trade practice by charging exorbitantly for the machine than the basic price. The arguments on behalf of the respondent / opposite party No. 1 was that there was no unfair trade practice or cheating to the complainant and there was no deficiency of service also., therefore, the present complaint is not maintainable. The Learned Counsel for the opposite party(s), further, submitted that in order to maintain goodwill and reputation, the opposite parties had closed the matter once for all by entering into an agreement and have also paid a sum of ₹4,90,882/- as a full and final settlement. Therefore, nothing survived further. The complainant filed the present complaint as an arm-twisting exercise. The learned Counsel for OP-2 submitted that OP-2 is a manufacturer, whereas the complainant purchased the machine from OP-1; therefore, there was no direct dealing whatsoever between the complainant and OP-2. Accordingly, the OP-2 was not a necessary party to the present complaint. The Fuji Photo Film Co. Ltd., Liaison Office, is not doing any direct business in India. Regarding over-pricing of the machine by the OP-1, the OP-2 shall not be held liable.

As per the affidavit of the complainant, he had purchased the machine for his livelihood, though the machine was purchased for his business purpose. Therefore, he was a consumer under Section 21(d) of the Consumer Protection Act, 1986. It is an admitted fact that compromise was made between both the parties and as per the terms of the same, the complainant assured to withdraw his complaint which was filed before the Chief Judicial Magistrate. The complainant again had levelled similar allegations in his complaint filed before State Commission. As per the compromise (Annexure A-12), it is proved that accessories were returned by the complainant to the opposite party(s) against the Credit Note given by the opposite party(s). Thus, there was no dispute with respect to the accessories also. Even the compromise agreement vide dated 25.10.2005, relevant clause 2 in the compromise agreement, reveals as under :

"2. The second party has handed over cheque No. 970310 dated 25.10.2005 drawn on HDFC Bank Ltd. Jodhpur, for Rs.4,90,882/- representing the amount mentioned in para 1(a) and (b) above and the first party has accepted the said cheque towards their upto date full and final settlement their all claims/dues, which may arise of the said complaint or otherwise towards the second party. The first party withdraws the above said complaints unconditionally.

On the basis of foregoing discussion, we do not find any merit in the instant appeal. Hence, the present appeal is dismissed. However, there shall be no order as to cost.