M/S. JCB INDIA LTD. vs RAM KUMAR & ANR.

Petitioner/Opposite Party No.2 being aggrieved by impugned order dated 03.11.2010 passed by State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ''State Commission'') has filed the above noted revision petition.

Respondent No.1/Complainant filed a consumer complaint before District Consumer Disputes Redressal Forum, Kaithal (for short, ''District Forum'') on the allegations that he purchased one JCB machine manufactured by petitioner for a sum of Rs.18,50,593.87P on 26.7.2007. The said machine was delivered to him on 27.7.2007. It is further stated that the said machine was defective from the date of delivery and did not work properly. Complaint was made to the petitioner as well as to Respondent No.2/Opposite Party No.1. On 29.072007, engineer was deputed who inspected the machine and tried to remove the defects but failed. It is further stated, that on 30.09.2007 another engineer visited the place and tried its level best to remove the defects but the same could not be removed, since there was manufacturing defects in the engine. 2. Consequently, respondent no.1 filed complaint before the District Forum, praying that defective machine may be replaced with new one and petitioner as well as respondent no.2 be directed to pay damages to the tune of Rs.80,000/- for physical as well as mental pain and harassment.

Petitioner as well as respondent no.2 were duly served. Despite service, they did not appear and were proceeded exparte by the District Forum, vide order dated 3.12.2007.

District Forum, after considering the affidavit of respondent no.1 and documents filed by him, vide its order dated 09.07.2009, allowed the complaint and directed the opposite parties to repair JCB machine in question and to make it functional to the satisfaction of the complainant, failing which to replace the same with new one of the same description. Opposite parties were further directed to pay Rs.5,000/- as cost of litigation to the complainant.

Being aggrieved, only petitioner filed (First Appeal No. 882 of 2010) before the State Commission. However, no appeal was filed by Respondent No.2.

Along with appeal, petitioner filed an application seeking condonation of delay of 313 days.

State Commission, vide its impugned order dismissed the appeal on the ground of delay as well as on merits,

Being aggrieved, petitioner has filed the present revision petition.

We have heard the learned counsel for the parties and gone through the record.

It is submitted by learned counsel for the petitioner that respondent no.1 is carrying on his business for commercial purposes so, the complaint under the Act is not maintainable. Secondly, notice was sent by the District Forum on wrong address and which was never received by the petitioner. Petitioner got the knowledge of the proceedings only when it received notice of execution from the District Forum. Immediately, thereafter appeal was filed before the State Commission and as such there were sufficient grounds for condoning the delay in filing the appeal but State Commission without considering the true facts, wrongly dismissed the application for condonation of delay. Under these circumstances, orders passed by both Fora below are liable to be set aside. In support of his case, petitioner relied upon a decision of this Commission reported as M/s JCB India Ltd. Vs. M/s Chandan Traders and Ors, (R.P.No.4044 of 2009) decided by this Commission on 19.02.2015 .

On the other hand it has been contended by learned counsel for respondent no.1, that petitioner was duly served before the District Forum but did not appear and as such was rightly proceeded exparte. Thereafter, appeal filed by the petitioner before the State Commission was hopelessly barred by limitation and State Commission dismissed the same. Further, respondent no.1 has purchased the JCB machine for his livelihood and for self employment. On this point, learned counsel has relied upon a decision of this Commission reported as Action Construction Equipment Ltd. & Anr. Vs. Sri Bablu Mridha, (RP No.2079 of 2012) decided on 20.07.2012 .

No arguments have been advanced by learned counsel for respondent no.2.

The State Commission in its impugned order observed; " As regards the ground taken in the first application it would transpire that totally vague and ambiguous assertions has been made. The only reason stated in the application for condonation of delay is that appellant company has shifted his office and for that reason they could not receive any notice from the District Forum and ex parte order was passed against the appellant. It is not disputed that appellant is having a good reputation in its day to day business and there is lot of correspondence with the appellant with its dealer and other consumers. Even otherwise, also, before shifting the office, every businessman has informed its new address to the post office authority. In this present case, notice was sent to the appellant through registered post, which was never received back. Under the circumstances, the reasons given in the application were taken as inadequate and insufficient to condone the delay. Hence, the ground stated in the application cannot constitute sufficient cause so as to condone the delay in filing the appeal as prayed for in the application from the side of the appellants. Therefore, the application for condonation of delay in filing the appeal is rejected.

Even on merit, there is no force in this appeal. After taking into consideration the fact that complainant had purchased the JCB machine from the opposite parties on 26.7.2007 for an amount of Rs.18,50,593.87 paise. However, the said machine was defective one, which facts came to the notice of the complainant on 29.07.2007 after receiving its delivery. Since the defects was immediately brought to the notice of the appellant on 29.07.2007 and the machine was under the warranty period, therefore, the District Forum has accepted the complaint and issued the directions with respect to rectify the defects from the machine of the complainant or to replace the same, which does not call for any interference in this appeal. As a sequel to our above discussion, this appeal is dismissed on both the counts i.e. on limitation as well as on merits in limni ."

First question which arise for consideration is as to whether petitioner was duly served before the District Forum or not. Case of petitioner is, that following address mentioned in the complaint; " D-1/1-1, 2 nd Floor, Mohan Cooperative Industrial Estate Mathura Road New Delhi-110044 ."

is not its correct address. The petitioner got the knowledge of the complaint filed before the District Forum, only when it received notice of execution proceedings on 18.05.2010. Thereafter, it filed appeal on 18.10.2010 before the State Commission.

The above plea of petitioner, that District Forum had sent notice of the complaint to the petitioner at a wrong address, is falsified from the notice sent under Section 27 of the Act which was received by petitioner at the following address; " J.C.B. India Ltd. Regd. Office D-1/1-1, 2 nd Floor Mohan Cooperative Industrial Estate Mathura Road New Delhi-110044 ."

which is the same address as mentioned in the complaint.

When petitioner''s itself had received notice of execution proceedings on the same address, now it does not lie in its mouth to state, that notice of complaint was sent at a wrong address. Thus, it is manifestly clear from the record, that notice of complaint as well as of execution proceedings were sent to the petitioner by the District Forum, on the same address. Therefore, this plea of the petitioner, that it did not receive notice of consumer complaint, falls to the ground.

Now coming to the delay aspect, as there was delay of 313 days in filing of the appeal, the State Commission rightly refused to condone the same as no sufficient cause had been shown. Even otherwise, a valuable right has accrued in favour of the complainant. We are in full agreement with the reasonings given by the State Commission, while refusing to condone the long delay of 313 days.

As far as merits of the case is concerned, respondent no.1/complainant in Para No.2 of the complaint has interalia, averred; " 2. That the complainant for the purposes of earning his livelihood by means of self employment purchased one JCB machine bearing engine No.4H.2152/0706457, Model/Chasis No.1261574 from the respondent no. 2 through respondent no.1 for an amount of Rs.18,50,593/87 paise ."

There is no rebuttal to the above averments on behalf of the petitioner, since it has no defence on merits. 20 In Laxmi Engineering Works Vs. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC), the Apex Court has observed; " 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 - the 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 "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 emphasis 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.) ".

In the present case also, respondent no.1 purchased the JCB machine for earning of his livelihood my means of self employment. There is no rebuttal to the above plea on behalf of the petitioner. Thus, decision relied upon by petitioner is of no help to it.

In view of the decision of Hon''ble Supreme Court in Laxmi Engineering Works (supra) , the complaint filed by respondent no.1 is maintainable.

Accordingly, we hold that there is no infirmity or illegality in the impugned order passed by the state Commission. The present revision petition, therefore stand dismissed.