RADHIKA LITHO PRESS vs FUSER GRAPHIC EQUIPMENTS

THE complainant''s case is that the offset printing machine purchased by him from the opposite party was not functioning properly and that inspite of some efforts taken by the opposite party it was still not functioning in a proper manner. In the additional complaint the complainant has stated that the machine which was supplied by the opposite party was not the one which was ordered by him. Hence, he approached this Commission with the following prayers - (1) To pass an order directing the opposite party to replace the defective machine with new machinery of similar description namely the "Print Dot" machine which was ordered by the complainant to the opposite party which shall be free from any defects; OR in the alternative to return the cost of the price paid by the complainant after taking back of the defective machinery supplied by the opposite party herein; (ii) And also pass an order directing the opposite party to pay a sum of Rs. 1,95,000/- as compensation for the loss occurred to the complainant, the penal interest for the price of the machine and also for the mental agony sustained by the complainant herein.

THE opposite party has refuted the allegations of the complainant and raised a preliminary objection as to the jurisdiction of the Commission. It is first to be observed that both the parties have been using inappropriately the words "deficiency in service" or "unfair trade practice". The word "deficiency" arises only in case of "service". Here there is no question of service. It is a matter of purchase of goods in which there can be only defect. Secondly, "unfair trade practice" is defined very precisely under the Act and the specific relief to be granted is also indicated in the Act. Therefore, whenever there is defect in the goods people should not use the word "unfair trade practice" before the District Forum/State Commission.

The first objection raised by the learned Counsel for the opposite party in respect of jurisdiction is that as per the contract between the parties it is expressly stated that all disputes will have to be brought before a Forum situated in Madras and that therefore this Commission has no territorial jurisdiction. We are unable to accept this contention. The territorial jurisdiction of the machinery created under the Consumer Protection Act has been clearly indicated in Section 17 r/w Sec. 11 of the Act. The cause of action arose in Pondicherry and the State Commission has territorial jurisdiction. If parties have provided otherwise in their contract, such provisions is null and void in consumer cases. Therefore, this contention is rejected.

THE second contention is that the complainant is not a consumer and that therefore he cannot approach the State Commission for the reason that the product so purchased was for a commercial purpose. We shall examine this contention.

AS per Clause 2(1)(d)(i) a "consumer" will be a person who buys goods to the exception of those who purchased goods for resale or for any commercial purpose. The word "any commercial purpose" is quite wide. An exception is however made by way of explanation to the effect that 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 learned Counsel for the opposite party would place before us a decision of the Supreme Court in Laxmi Engineering Works v. PSG Industrial Institute, II (1995) CPJ 1 (SC), where the Supreme Court has clearly held that any article purchased for the purpose of a commercial activity will be outside the purview of this Commission to the exception of what is indicated in the explanation. Since the explanation is an exception to the word "for any commercial purpose" that explanation has to be construed restrictively and in that connection the words "by means of self-employment" are relevant for the purpose of dealing this case. The learned Counsel for the complainant would say that it should be open to a person purchasing an article for earning his livelihood to seek the assistance of some others and that even then the purchase will be one for self- employment as per the explanation. In this case the complainant has not made any averment to the effect that he purchased the machine for self- employment nor made any reference to the kind of assistance he was going to seek. On the contrary he has categorically stated in his complaint that the opposite party agreed "that they will send employees to operate the machine till permanent employees were engaged at Pondicherry itself." It is clearly not a case of self-employment and, therefore, the ruling of the Supreme Court would apply to this Commission.

HENCE, it is ordered that the complaint shall be returned to the complainant for whatever steps he may be advised to take and which is open to him in law. No costs. Complaint returned.