KORES INDIA LIMITED vs BHASKAR PATRA

THE order of the District Forum directing the appellant to replace the copier machine by a defect-free new copier machine or to pay Rs. 1,27,500 (price of the copier machine) to the respondent No. 1 together with Rs. 3,000 as compensation and Rs. 500 as cost is the subject matter of challenge in this appeal.

THE respondent No. 1 filed complaint against the appellant and respondent No. 2 alleging as follows: He purchased one Kores automatic plain paper copier D.C. 1755 from the respondent No. 2 on payment of Rs. 1,27,500. THE said copier machine was delivered to him on 24.2.1995 by the appellant through respondent No. 2. After using the copier machine for about 10 days it started giving trouble for which complaint was made to the respondent No. 2 for immediate rectification. The Service Engineer of respondent No. 2 attended the machine. After some days it again gave trouble for which he had again lodged complaint. The Service Engineer again attended the machine and replaced some parts but its functioning was not as satisfactory as it should have been due to such frequent development of trouble, he had to sustain financial loss which affected his livelihood. He accordingly, requested for replacement of the copier machine which was not heeded. In the circumstances, he had no other alternative than to file a complaint.

In the written version filed by the appellant and respondent No. 2, it was pleaded that whenever report was received regarding the machine, the Service Engineer attended and rectified the defects. Periodical maintenance work was also done by the Service Engineer. Therefore, defects of the machine were removed and the machine has been running in perfect order.

BEFORE the District Forum it was contended by the appellant that since the copier machine was used for commercial purpose, the respondent No. 1 cannot be held to be a consumer. The objection was over-ruled by the District Forum and it held that the very fact that the copier machine was attended by the Service Engineer atleast 43 times from the date purchase proves that it was a defective one and was having mal-functioning. Because of the mal-functioning of the machine the earning of the respondent No. 1 was affected. He had also undergone mental agony and harassment. It accordingly allowed the complaint. The learned Counsel for the appellant contended that the respondent No. 1 cannot be held to be a consumer because the machine in question was used for commercial purpose. It was further submitted that whenever it was pointed out that the machine was giving trouble, the same was duly and promptly attended by the Service Engineer and the defects were removed by replacing parts also. Therefore, the direction of the District Forum to replace the machine or to pay its price thereof is not tenable.

LET us examine as to whether the respondent is a consumer within the purview of Section 2(d) of the Consumer Protection Act, 1986. At the relevant time the explanation to the definition of "consumer" read as follows: "(d) ''consumer'' means any 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 persons 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. (Explanation-For the purposes of Sub-clause (i), ''commercial purpose'' does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;)"

The expression "commercial purpose" appearing in the definition of consumer came up for consideration before the Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)=AIR 1995 SC 1428. In that case the applicant Laxmi Engineering Works was a small scale industry. It placed an order with the respondent for a supply of one Turning Central Machine. The respondent supplied the said machine which was found to be defective. Alleging that there was defect in the goods supplied to it, the applicant Laxmi Engineering Works filed a complaint before the State Commission. The complaint came to be rejected by the State Commission because it found that the applicant was carrying on business of manufacture of machine parts for the purpose of earning profit and, therefore, the applicant was held to be not a consumer, while upholding the said order, the Supreme Court (supra) held that a person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood by means of self-employment, is a consumer. The Court explained that if a goods is purchased for use by the purchaser himself exclusively for the purpose of earning his livelihood by means of self-employment and not for purpose of making profit, such purchaser comes within the definition of "consumer". The Court further held that whether the purpose for which a person has purchased goods is for "commercial purpose" within the meaning of consumer is always a question of fact to be decided in the facts and circumstances of the each case. A number of illustrations have been indicated by the Supreme Court in that case, we may take one of them as guidance for our purpose. A person who purchases an auto rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Even if such purchaser takes the assistance of one or two persons to help him in operating the vehicle he does not cease to be a consumer. However, if a person who purchases an auto rickshaw to be plied or operated exclusively by another person, he would not be a consumer.

THE specific case of respondent No. 1 is that the machine was purchased through bank finance (Vijaya Bank, Rourkela) for his son to start a business for himself to earn his livelihood. No material was produced by the appellant to disbelieve the aforesaid version. In the circumstances, we are inclined to hold that the machine was purchased for the respondent 1''s son to enable him to earn his livelihood. THErefore, he (respondent No. 1) is a consumer within the definition mentioned above.

NOW coming to the merits of the case, we may observe that the District Forum after going through the service reports submitted by the Service Engineer has held that he attended the machine for 43 times from the date of purchase. Even on some occasions some parts were replaced by the Service Engineer. In view of such frequent trouble of the machine, the District Forum rightly held that the machine was defective and was not functioning properly. The very fact that the Service Engineer attended the machine for 43 times and replaced some parts of the machine on some occasions goes to show that the machine was defective one and was mal-functioning. In the circumstances, the order of the District Forum to replace the machine of the same type or to pay its full cost and compensation of Rs. 3,000 towards mental agony does not suffer from any legal or factual infirmity. In the result, we do not find any merit in this appeal which is accordingly dismissed with costs assessed at Rs. 1,000. Appeal dismissed.