M/S Avery India Limited vs M/S Kaybee Sulphates Limited

PRESENT revision petition has been filed by the Petitioner/O.P. under Section 21(b) of the Consumer Protection Act,1986(for short, ''Act '') against order dated 30.10.2007,passed by Orissa State Consumer Disputes Redressal Commission, Cuttack (for short, ''State Commission '')

BRIEF fact are that Respondent/Complainant filed a consumer complaint against the petitioner alleging deficiency in service in not setting up the weigh -bridge at his Industrial Unit and supplying him a defective transfer lever. It is stated by the respondent that he has Sulphate Industry under construction and process of manufacturing sulphate. Petitioner is a limited company dealing with sale and erection of weighing machine such as weighbridge. It is further stated that respondent entered into a contract with the petitioner to purchase a weighbridge from it. Petitioner agreed to sell, deliver and erect the weighbridge at the site of Pitamahal within the stipulated time. Accordingly, respondent paid the price of weighbridge amounting to Rs.2,23,395/ - on 27.08.1996. It is further alleged that as per contract, respondent completed the construction of the weighbridge platform as per the foundation drawing supplied by the petitioner. However, the weighbridge supplied was defective as the transfer lever was broken, which was to be replaced by the petitioner. It is alleged that the petitioner neither replaced the same nor the weighbridge was erected as per the contract, in -spite of several requests of the respondent. Due to such negligence of the petitioner in absence of the weighbridge, respondent has suffered huge loss. In such circumstances, respondent has placed order with another manufacturer to supply him a weighbridge. Thus, alleging deficiency in service, respondent filed a consumer complaint against the petitioner to take back the defective weighbridge at their cost and risk and to return the price received by them from him and to pay compensation of Rs. 50,000/ -. The petitioner in its written statement has stated that respondent is not a consumer, as his aforesaid Industry at Pitamahal is for commercial purpose. However, respondent had placed an order for a Road weighbridge with the petitioner who had agreed to sell the same at a price of Rs.1,86,740/ - giving 5% discount on the original sale price of Rs.1,96,540/ -. Further, respondent was to pay excise duty of 15%, 4% Orissa Sales Tax furnishing as Form -IV and packing charges. It is further stated that petitioner was to arrange delivery at his site, the freight and insurance charges having been agreed to be borne by the petitioner. After taking delivery of the weighbridge, respondent had to construct the Civil work as per foundation drawing supplied by the petitioner over which petitioner was to install the weighbridge. Respondent paid the price of the weighbridge phase wise, as a result of which petitioner sent the weighbridge machine by road on 24.08.1996 which reached respondent on 21.09.1996. While taking delivery of said machine by the respondent, the Transfer lever was found broken as a result of which the J.E.E. of the petitioner informed on 24.09.1996 to arrange replacement of the Transfer lever and to send it direct to the respondent. As it is a spare part which is manufactured separately, time was taken for its manufacturing. However, it was dispatched to the respondent on 02.02.1997 and it reached respondent ''s site on 09.03.1997. But the respondent refused to receive it and it was kept with the petitioner till now. It is further stated that the respondent did not receive it in spite of request made by the petitioner in writing on 10.3.1997, 18.03.1997 and through advocate in writing dated 15.4.1997. The respondent refused to receive it on the ground that he has filed the consumer case. It is further stated that though respondent received twice civil drawing for construction of the said platform from petitioner, yet he had failed to construct in time the platform properly to be fitted with 20 tons heavy weighbridge machine. So, the petitioner could not install the weighbridge as respondent has failed to complete the civil work properly and he also failed to give the full price with Central Excise Duty and Sales Tax with Form -IV as agreed earlier. Further, it is stated that though, the petitioner is not responsible for breaking of the Transfer lever, yet he has replaced the same at his cost. Therefore, respondent is not entitled to get back the price of the weighbridge from them as well as compensation, as for his own negligence the weighbridge could not be installed in his unit.

DISTRICT Consumer Disputes Redressal Forum, Rayagada, Orissa(for short, ''District Forum '') allowed the complaint vide order dated 17.10.1997 and passed the following directions ; '''' The O.Ps to take back their weigh -bridge at their cost and pay back its cost to the complainant as they have not rendered proper service after receiving the full cost of the machine. To meet his needs the complainant is said to have hired the weigh -bridge from some other source and paid heavy hire -charges on that account. So the O.Ps are further directed to pay him 12% interest p.a. from the date of payment of the price of weigh -bridge till date of its payment to the complainant and also Rs.500/ - towards cost of litigation ''''.

AGGRIEVED by the order of District Forum, petitioner filed an appeal before the State Commission which dismissed the same, vide its impugned order. Hence, the present revision petition.

NOTICE of the revision petition was issued to the respondent/complainant. Respondent was duly served by the Registered AD Post for 09.07.2013. On that date, none appeared on behalf of the respondent. Thereafter, when the matter was listed for final hearing on 28.10.2013, again none was present on behalf of the respondent, though it was duly served with notice for that date also. Accordingly, respondent was proceeded exparte on 28.10.2013.

WE have heard learned counsel for the petitioner and have gone through the record. It has been argued by the learned counsel for the petitioner that respondent is not a ''Consumer '' within the meaning of Section 2(1) (d) of the Act. Admittedly, the respondent runs a Sulphate industry and had purchased the weighbridge from the petitioner for the purpose of above industry only. Further, it was commercial transaction between the petitioner and the respondent and the same is not a Consumer dispute.

THUS , both the Fora below have overlooked this basic fact and have wrongly allowed the complaint of the respondent. In support, learned counsel has relied upon the decision of Laxmi Engineering Works Vs. PSG Industrial Institute, II (1995)CPJ I (SC)= 1995 3 SCC 583.

AS per respondent ''s case, it is a limited company engaged in Sulphate industry and for the process of manufacturing Sulphate, it entered into a contract with the petitioner for purchase of weighbridge. Therefore, admittedly respondent is engaged in commercial activities and is running an industry of manufacturing Sulphate. Hon ''ble Supreme Court has discussed the term ''Consumer '' in the celebrated authority, that is, Laxmi Engineering Works (Supra), wherein it was held; ''''The National Commission appears to have been taking a consistent view that where a person purchases goods ''''with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit '''', he will not be a ''consumer '', within the meaning of Section 2 (d) (i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion - the expression ''''large scale '''' is not a very precise expression - Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/ Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression ''''commercial purpose '''' - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a ''consumer '' but a person who buys a typewriter or a car for typing others '' work, for consideration or for plying the car as a ''taxi '', can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for ''''commercial purpose '''' would not yet take the purchaser out of the definition of expression of expression ''consumer ''. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of ''self -employment '', such purchaser of goods is yet a ''consumer ''. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self -employment, for earning his livelihood, it would not be treated as a ''''commercial purpose '''' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a ''''commercial purpose '''', to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz, ''''uses them by himself '''', ''''exclusively for the purpose of earning his livelihood '''' and ''''by means of self -employment '''' make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto -rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer). As against this, a person who purchases an auto -rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer ''''.

The Court further observed; ''''A review of the provisions of the Act discloses that the quasi -judicial bodies/authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not courts though invested with some of the powers of a civil court. They are quasi - judicial tribunals brought into existence to render inexpensive and speedy remedies to consumers. It is equally clear that these forums/commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. The forum so created is uninhibited by the requirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself, any recognized consumers'' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for"business -to -consumer'' disputes and not for "business -to -business" disputes. This scheme of the Act in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal ''''.

IN view of the above dictum of the law laid down by the Hon ''ble Apex Court respondent/complainant herein, by no stretch of imagination would come within the meaning of ''Consumer '' as defined under the Act. Accordingly, we hold that both the Fora below have committed grave error in allowing the complaint of the respondent.We, therefore allow the present revision petition and dismiss the complaint filed by the respondent before the District Forum. With these observations, the present petition stands disposed of.

NO order as to cost.