Bhardwaj Industries vs Premier Limited and Anr.

M /s. Bhardwaj Industries through its proprietor Kundan Kumar Singh has filed this complaint under Section 21 of the Consumer Protection Act, 1986 (in short, ''the Act'') alleging that he purchased one VTL CNC PTB150 machine (hereinafter referred to as the machine) vide purchase order dated 14.5.2012, to meet specific requirement, in consideration of Rs. 1,76,96,700. That the machine was installed by O.P. No. 1 on 13.3.2013. Within 25 days of the installation, machine started giving the problem. O.P. No. 1 was informed about the problem but it failed to send anyone for rectifying the defect. It is alleged that the gear box of the machine failed to give quality result. Being aggrieved of the defect in quality as well as performance of the machine, the complainant has filed the instant complaint with following prayer: Prayer - -

• It is therefore most respectfully prayed to this Hon''ble Court - -

• To refund a sum of Rs. 1,76,96,700 towards the cost of the machine along with interest @ 24% p.a.; and/or

• To replace the machine with same configuration and specification made by the Complainant in their purchase order, and

• The complainant has also incurred following other expenses due to the machine like foundation, turning holders, turning tools, rent for land, labours - -there are four labours i.e. two operators, one programmer and one helper, electricity, charges of electronical finance limited, etc. Details are as following - -

Charges for Electronic finance limited

{Rupees fifty -five lacs seventy -four thousand six hundred fifty -nine only)

• That the O.P. is responsible to pay the complainant the above mentioned total other expenses.

• To direct the opposite party No. 1 to pay a sum of Rs. 40,00,000 to the complainant towards the loss earning suffered by complainant.

• To award litigation cost for a sum of Rs. 75,000.

• Therefore, the total cost of compensation sought by the complainant is Rs. 2,79,56,359 (In words two crore seventy -nine lacs fifty -six thousand and three hundred and fifty -nine only) along with the interest @ 24% P.A.

On going through the complaint, it prima facie appears that the machine in question was purchased by the complainant from O.P. No. 1 for commercial purpose. Therefore, the Counsel for the complainant was called upon to argue on the point of maintainability of the complaint.

BEFORE adverting to the submissions of the Counsel for the complainant, it would be useful to have a look on relevant provisions of the Act. Section 2(b) of the Act defines the term ''complainant'' and it reads thus:

Complainant means

(i) a consumer; or

(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or

(iii) the Central Government or any State Government; or

(iv) one or more consumers, where there are numerous consumers having the same interest;

(v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint.

On reading of the above, it is evident that in order to successfully maintain the complaint, the complainants must fall within the definition of consumer. The term consumer has been defined under Section 2(1)(d) of the Act. Relevant part of Section 2(1)(d) is reproduced thus: Consumer means a 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 or partly promised, or under any system of deferred payment when such use is made with the 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 a 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 of 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 purpose of earning his livelihood by means of self -employment.

ON careful reading of Section 2(1)(d) reproduced above, it is evident that term ''consumer'' for the purpose of the Act does not include a person who obtains goods in question for resale or for any commercial purpose. However, the explanation to the provision makes an exception that commercial purpose does not include use of the goods bought by the buyer exclusively for the purpose of earning his livelihood by means of self employment.

IN context of the above definition of consumer, now it is to be seen whether the complainant firm falls within the definition of ''consumer''. Mr. Pawan Kumar Ray, learned Counsel for the complainant has contended that complainant is proprietorship concern of Kundan Kumar Singh who is in the business of manufacturing certain instruments for livelihood and earning bread for his family. The machine purchased by the complainant is vital for manufacturing of instruments which are supplied to the prospective buyers for earning livelihood. Thus the complainant is covered by the exception carved out by the exception to Section 2(1)(d) of the Act which defines the term ''consumer''. In support of this contention, learned Counsel for the complainant has drawn our attention to para 2 of the complaint wherein the complainant has alleged that he is in the business of Bhardwaj Industries for earning livelihood.

WE are not convinced with the argument advanced by the learned Counsel for the complainant. No doubt the complainant has alleged in para 2 of the complaint that he is into the above business for earning livelihood but this assertion by itself would not bring the complainant within the four corners of exception carved out by the explanation to the definition of ''consumer'' as provided under Section 2(1)(d). of the Act. In order to find whether or not the complainant purchased the machine exclusively for the purpose of earning his livelihood by means of self employment, one has to go through the entire set of facts and circumstances.

ON reading of the complaint, it is evident that M/s. Bhardwaj Industries was already into the business of manufacturing product before placing order of the machine in question on the opposite party No. 1. In para 5 of the complaint, complainant has alleged that the machine was purchased to meet specific requirement. From this it is clear that the machine in question was purchased not for the purpose of starting the business exclusively for earning livelihood by means of self employment but it was actually purchased for increasing the product line of the complainant with a view to expand the business. Therefore, in our considered view, the complainant does not fall within the exception as carved out by the exception to Section 2(1)(d) of the Act reproduced above. Admittedly, the machine in question was purchased from O.P. No. 1 in relation to business of the complainant which amounts to a commercial purpose. The complainant, therefore, cannot be termed as consumer as defined under Section 2(1)(d) of the Act. Since M/s. Bhardwaj Industries is not covered under the definition of consumer, it cannot maintain the consumer complaint. In view of the discussion above, we are of the considered opinion that complainant is not a consumer and as such the present complaint filed by the complainant is not maintainable. Complaint is accordingly dismissed in limine. This order, however, shall not preclude the complainant to avail of his remedy under appropriate jurisdiction.