CHEEMA ENGINEERING SERVICES vs RAJAN SINGH

THIS Revision Petition has arisen out of the order dated 21st July, 1995 of the Orissa State Commission at Cuttack upholding the order dated 20.1.95 passed by the District Forum, Sundergarh -II in CD. Case No. 148/94 directing the petitioner herein to refund Rs. 1.00 lakh with interest at the rate of 18% per annum from the date of deposit till the date of realisation besides Rs. 500/ - to - wards litigation expenses.

THE facts lie in a narrow compass and may be noticed. The complainant wanted to install a brick manufacturing unit and invited quotation from the petitioner herein who is a manufacturer of the required machinery. The petitioner herein sent its quotation in the letter dated 31st January, 1992. The complainant paid a sum of Rs. 21,000/ - on 12.2.92 and another payment of Rs. 79,000/ - on 17.8.92. The price of the brick making machine was Rs. 3,25,000/ - which is inclusive of tax and duties. The complainant alleged that the petitioner herein did not manufacture the machinery or supply the same to the complainant or commissioned it despite registered letters dated 12.5.93 and 5.6.93. The complainant ultimately sent a registered letter on 27.6.94 to the petitioner herein to refund the amount of Rs. 1.00 lakh with interest because of the failure in the manufacture, in the delivery of the brick making machine and installation of the said machinery. As there was no response the complainant filed Original Petition No. 184/94 before the District Forum, Sundergarh. On being noticed, the petitioner herein raised preliminary objections that the machinery was sought to be purchased by the complainant for commercial purpose and that the District Forum had no territorial jurisdiction. On merits it was pleaded that the said machinery had been manufactured as per the specification of the complainant but the complainant failed to take delivery by making payment of the balance of the price.

THE District Forum in the order dated 20th January, 1995 accepted the contention of the complainant that the machinery was for earning his livelihood. On the question of territorial jurisdiction, the District Forum held that a draft for the amount was taken at the Bank which is within the jurisdiction of the Forum and again the machinery was to be supplied to the complainant at his address which is falling within the jurisdiction of the District Forum. The District Forum then came to the conclusion that there is definite deficiency in service on the part of the opposite party in not manufacturing, supplying and installing the machinery. The District Forum directed the petitioner herein to refund the amount of Rs. 1.00 lakh together with interest at the rate of 18% per annum from 24.2.92 on Rs. 20,000/ - and from 17.8.92 on Rs. 79,000/ - till the date of realisation and also costs of Rs. 500/ -. The appeal of the petitioner and the cross objections of the complainant were dismissed by the State Commission in its order dated 21st July, 95 after upholding the findings of fact recorded by the District Forum.

THE only submission of Mr. S.K. Sharma, the learned Counsel for the petitioner herein is that the complainant is not a consumer because, he has purchased the goods for commercial purposes but it is urged that the State Commission as well as the District Forum has not given any finding on this question which is vital for the controversy to be decided namely whether the business of the complainant is on a large scale or not or whether it was to earn his livelihood. Reliance is placed on the decision of the Supreme Court in the case of Laxmi Engineering Works v. PSG Industrial Institute, II (1995) CPJ 1 (SC) to contend that an enquiry is to be made into the fact whether the business is on large scale or it is meant for self employment and that the enquiry is required to be made on each case. The District Forum was fully conscious on these aspects. In para 5 of the order of the District Forum the contention of the petitioner herein was noticed which is to the effect that the District Forum has no jurisdiction to adjudicate upon the dispute since the bricks manufacturing unit is required for commercial use by the complainant. On behalf of the complainant it was contended before the District Forum that the machinery was to earn his livelihood and the machinery was to be used for that purpose. PW1 the complainant had categorically stated in his evidence before the District Forum that to earn his livelihood he wanted to instal the brick manufacturing unit. According to the District Forum this statement is not shaken in any way and therefore the District Forum held that the purpose of installing the brick manufacturing unit was to earn his livelihood. The case of the complainant before the District Forum was that he being an unemployed youth had made the requisition for the purchase of the machinery for earning his livelihood and for maintaining the family. The Supreme Court has clearly indicated that if the goods purchased the machinery was for the purpose of earning livelihood, the employment of any other person to assist in running the machinery will not disqualify the individual from seeking the protection under the Consumer Protection Act. A person who purchases the machine or other machines to operate himself for earning his livelihood would be a consumer even if such a buyer takes the assistance of one or two persons to assist or help him in operating the machinery. There is no error of jurisdiction or illegality or irregularity in the exercise of jurisdiction by the District Forum and the State Commission when they came to the conclusion that the machinery was sought to be purchased by the complainant for earning his livelihood. In the result, the Revision Petition fails and is dismissed with costs assessed at Rs. 1,000/ -. Revision Petition dismissed with costs.