M/S. Selection Point Bazar vs M/S. Kinectic Elevators Limited

Rekha Gupta,J

The present revision petition has been filed against the judgment dated 28.09.2015 of the Uttar Pradesh State Consumer Disputes Redressal

Commission, Lucknow (‘the State Commission’), in First Appeal no. 391 of 2006.

The facts of the case as per the petitioner/ complainant are that the petitioner constructed a five storeyed commercial market at C â€" 16

Deendayal Puram, Pilibhit Road, Bareilly and named it as Selection Point Bazar. For the convenience of the customers and pubic they decided to

install a passenger lift (capsule type) in the said commercial market. The respondent/ opposite party had been contacted to install the Capsule Type

Passenger Lift, for which, the petitioner made a payment of Rs.6,50,000/- to the respondent/ opposite party vide receipt number 355 dated 09.07.2001

and receipt number 356 dated 25.07.2001. The respondent for getting the lift installed, sent few parts of the lift from the go-down of his Firm to the

petitioner’s firm. All the parts were old and rusted. The petitioner did not accept them and objected to the same.

The respondent made a demand of Rs.10,000/-, which was paid by the petitioner on 05.12.2001. Even thereafter, the parts of the lift which were sent

were not usable. The lift was installed. It did not work properly, complaint for which was made by the petitioner repeatedly but no satisfactory reply

was received. The petitioner then contacted the firm Indo Fuji Elevators and Escalators, Patel Nagar, New Delhi. They checked the lift and they

demanded Rs.1,50,000/- for starting the lift. It also came to their knowledge that the material, for which, the respondent had made a demand of

Rs.6,60,000/-actually was worth only Rs.4,18,000/-. Thus, the petitioner had to take the services of the above-named firm Indo Fuji Elevators to bring

the lift to a workable condition. Accordingly, the respondent has committed deficiency of service. Being aggrieved, the complaint in question has been

filed with the following prayer:

The respondent be kindly ordered to pay to the petitioner the sum of Rs.4,78,000/- with interest at the rate of 12% per annum pendent lite and

future within such time as the District Forum may deem just one suitable.

The cost of the above proceedings be awarded to the petitioner.

Any other relief illegible which this District Forum may deem just and proper be also awarded to the petitioner.

The respondent/ opposite party filed their written statement and took preliminary objections that the complaint suffers from the basic infirmity that

the goods purchased by the complainant company were for commercial purpose and for use in the commercial market and hence, it is against the

scope and ambit of Section 2 d (i) of the Consumer Protection Act, 1986. They further contended that the respondents had been contracted to install

two escalators and a lift. The petitioner/ complainant still owed them Rs.1.45 lakhs including Rs.5.00 lakh paid by the complainant towards advance

money for the supply of two escalators.

They alleged that the lift had been installed and operationalized and functioned for a month and thereafter, due to non-payment of the full and final

money the operation of the lift had been put on electrical stoppage, However, instead of honouring the contract the petitioner got it functionalised

through another firm. This was done simply to avoid the payment of Rs.6,45,000/- which includes the money for the installation of two escalators.

Therefore, the complainant’s case was untrue and fraudulent and deserves to be dismissed.

Though the written statement was received on the date of hearing of the complaint, the District Forum noted that since none has appeared on

behalf of the respondents and the facts mentioned in the written statement were not pressed, therefore, the order was being passed ex parte .

The District Consumer Disputes Redressal Forum, II, Bareilly vide its order dated 23.12.2004, while allowing the complaint has passed the following

order:

“ The complaint is ex parte allowed. It is ordered to the defendant firm to make payment of the amount of Rs.4,78,000/- to the complainant within

one month from today. In addition to above, interest at the rate of 9% per annum from the date of complaint up to the date of payment, i.e., up to

09.07.2000 .â€​

Aggrieved by the order of the District Forum, the respondent/ opposite party filed an appeal before the State Commission. The State Commission

while partly allowing the appeal passed the following order:

“ Appeal is partly allowed. Judgment/ order dated 23.12.2004 passed in complaint no. 201/2002 by the District Forum, Bareilly â€" II is set aside

subject to this condition that the appellant is required to re-check the lift installed in the Selection Point Bazar of the respondent and ascertain the

proper operation of liftâ€​.

Hence, the present revision petition.

The revision petition has been filed with a delay of 53 days. For the reasons given in the application, the delay is condoned.

As per the counsel for the petitioner, the petitioner has contended that the State Commission has ignored the petitioner’s plea that the old and

rusted parts of the lift were sent and assembled by the staff of the respondent. This could be clearly seen as new and shinning parts would not lead to

a clumsy lift which needs repairing again and again. The State Commission has also failed to see that the petitioner was suffering heavy monetary loss

due to the frequent non-functioning of the lift.

It is seen from the complaint that the complainant had constructed a five storeyed commercial market at C â€" 16 Deendayal Puram, Pilibhit

Road, Bareilly which had been named as Selection Point Bazar. For the convenience of customers and the public one passenger lift (Capsule Type)

was proposed to be installed at the said market. M/s Kinetic Elevators Limited, i.e., the respondent was contacted. The written statement had been

filed by the opposite party before the District Forum. As there was no appearance on behalf of the opposite party to argue the case before the District

Forum, the District Forum passed an ex parte order. It is however, seen from the written statement which is on record that the respondent had taken

preliminary objections that the complainant was not a consumer as it was a company which had bought the elevator for commercial purpose. The

complainant had also concealed the fact that they had also placed an order for two other escalators for the said market.

Section 2 d (i) of the Consumer Protection Act, 1986 reads as under:

(d) ""consumer"" means any person whoâ€

(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 prom-ised, or under any system of

deferred payment and includes any beneficiary of such services other than the person 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 but does not include a person who avails of such services for any commercial purposes;

Explanation .â€" For the purposes of this clause, “commercial purpose†does not include use by a person of goods bought and used by him and

services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;

In this case it is evident from the complaint that the petitioner/ complainant was a firm/ company which had procured the said lift for its five

storeyed commercial market named Selection Point Bazar for enhancing his business by providing this facility to the customers and public. 13. In view

of the above, this complaint was not maintainable under section 2 d (i) of the Consumer Protection Act, 1986, as the complainant was not covered

under the definition of a consumer. Thus, the lower fora passed their orders without jurisdiction.

Hence, the revision petition is dismissed and the orders of the lower fora are set side and the complaint is also dismissed with liberty to the

petitioner to file a fresh complaint on the same cause of action before an appropriate forum.