Jai Chand Supplier vs Krishana Automobiles

THIS revision petition has been filed by the petitioner against the order dated 08.06.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ''the State Commission '') in Appeal No. 419 of 2010 - JCB India Vs. Jai Chand Supplier and Ors. by which, while allowing appeal, order of District Forum allowing complaint was set aside.

BRIEF facts of the case are that complainant/petitioner purchased one JCB machine from the OPs/Respondents vide invoice NO.6810003651 dated 25.7.2008 for work to earn the livelihood for himself. The said JCB machine was under the warranty and guarantee of one year from the date of its purchase or upto 2000 working hours whichever occurs earlier. It was alleged that in the month of June, 2009 the said JCB machine became out of order and its engine seized, so the complainant took the said JCB machine to the premises of OP NO. 1 and told about the defects. The OP No. 1 asked the complainant to leave the said JCB machine at the place of OP No. 1 and assured to repair the same or replace its engine free of costs within one or two days. Thereafter, the complainant visited the premises of the OP No. 1 several times since 28.6.2009, but of no use. It was further alleged that the complainant sent a registered AD legal notice dated 7.7.2009 to the OPs, but the respondents have not complied with. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP Nos. 1 & 2 resisted complaint and submitted that nature of defect was required to be handled by Kirloskar Oil Engine Ltd. OP No. 1 and 2 carried out the job of informing Vishal Power System effectively and efficiently. Decision whether the job is warrantable or not lies with KOEL/his authorized dealer i.e. Vishal Power System and not with OP No. 1 and 2. It was further submitted that the said machine was brought to the OP No. 1 & 2 at Khijrabad workshop with internal problem in engine and axle defect on 29.6.2008. Axle defect was attended on 30.6.2008 by Khijrabad workshop under warranty. However, engine internal problem was referred to Vishal Power System (authorized dealer of Kirlosker Oil engines Ltd.) as per policy laid down by JCB India Ltd. as Vishal Power System were competent to attend the engine internal problem and take decision whether job is warrantable or not. It was further submitted that on 2.7.2009, Vishal Power System conveyed the complainant that the job is not warrantable and prayed for dismissal of complaint. OP No. 3 resisted complaint and submitted that as machinery was purchased for commercial purposes, complainant does not fall within the purview of consumer and prayed for dismissal of complaint. OP No. 4 did not appear. Learned District forum after hearing all the parties, allowed complaint and directed OP Nos. 3 & 4 to replace engine of JCB as early as possible and further directed to pay Rs.1000/ - per day from 2.7.2009 till replacement of the engine. Appeal filed by the OP No. 3 was allowed by leaned State Commission vide impugned order against which, this revision petition has been filed. None appeared for Respondent No. 4 even after service.

HEARD learned Counsel for the parties finally at admission stage and perused record.

LEARNED Counsel for the petitioner does not press this revision petition against Respondent nos. 1 &2 as he has not purchased JCB machine from Respondent Nos. 1&2 and District Forum has not allowed complaint against them and petitioner has not preferred any appeal against Respondent Nos. 1&2. Learned Counsel for the petitioner submitted that inspite of averments in the complaint regarding purchase of JCB machine for earning livelihood for himself and his family members, learned State Commission committed error in allowing appeal on the ground that complainant does not fall within the purview of consumer; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the Respondent No. 3 submitted that as complainant has not specifically pleaded that machine was purchased for earning his livelihood by means of self -employment. Order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

COMPLAINANT in paragraph 2 of the complaint mentioned that the complainant purchased the above said JCB machine from the respondents to do the concerned work with the same to earn the livelihood for himself and his family members which apparently indicates that complainant purchased JCB machine for earning his livelihood for himself and his family members by means of self -employment. Learned State Commission has committed error in allowing appeal on this ground and it would be appropriate to remand the matter back to the learned State Commission to decide the appeal afresh after considering the averments in the complaint and on merits regarding direction to replace engine and grant compensation.

CONSEQUENTLY , revision petition filed by the petitioner is allowed and impugned order dated 08.06.2012 passed by State Commission in Appeal No. 419 of 2010 - JCB India Vs. Jai Chand Supplier and Ors. is set aside and matter is remanded back to the learned State Commission to decide appeal on merits including the aspect whether the complainant falls within the purview of consumer in the light of averments in the complaint. Parties are directed to appear before the State Commission on 8.7.2014.

LEARNED State Commission may proceed with the appeal even in absence of OP Nos. 1 & 2, as no relief has been granted by District Forum against OP Nos. 1 & 2 and complainant has not challenged order of District Forum before State Commission.