Ram Singh vs BRANCH MANAGER, KORES INDIA LTD.

THESE two cases, one appeal filed by Ram Singh Kachwaha of M/s. Jodhpur Photostat, Kuchaman City, Nagaur, and the other a revision petition filed by M/s. Kores (India) Ltd. arise out of the same order of the learned District Forum, Nagaur dated 7.4.1994. The complainant came before the learned District Forum with a case that he has purchased an automatic photocopier for his commercial use on 8.8.1989 at the cost of Rs. 73,060/- from the respondent M/s. Kores (India) Ltd., Jaipur. The machine had a warranty of repair for three months or the extraction of 50,000 copies whichever is earlier. That warranty period expired on 8.11.1989 on the expiry of three months because no definite date has come on the record as to when 50,000 copies were taken out of this machine. Be that as it may the learned District Forum dismissed the complaint of the complainant bearing No. 6/91 holding that the complainant is not a consumer and, therefore, he is excluded from the definition of the consumer contained in Section 2(1)(d) of the Consumer Protection Act (hereinafter referred to as the Act) of 1986. Against this order an appeal was filed and it was remanded on the ground that the complainant is a consumer. That order is dated 25.2.1993. After the remand the case has been decided by the District Forum vide impugned order dated 7.4.1994 whereby the complaint of the complainant was partially allowed and the respondent was directed to pay compensation amounting to Rs. 8,000/- to the complainant Ram Singh and Rs. 500/- as costs of the litigation. It is against this order that M/s. Kores (India) Ltd. has filed Revision Petition No. 48/95 for setting aside the order of the District Forum whereas Shri Ram Singh representing M/s. Jodhpur Photostat filed Appeal No. 779/94 for enhancement of the compensation and the costs of the litigation.

NOBODY appears for Shri Ram Singh today. He was absent on the last date of hearing and earlier. Under these circumstances we have heard Mr. Sandeep Saxena appearing for M/s. Kores (India) Ltd. and have gone through the record of the District Forum as also the order of the State Commission. After bestowing our thoughtful consideration to the facts contained in the case and the submissions made at the Bar we are firmly of the view that this order of the learned District Forum cannot be sustained. The automatic photocopier was purchased on 8.8.1989. Its warranty period was only three months or extraction of 50,000 copies whichever is earlier and thus at the best that warranty period expired on 7.11.1989. It has been specifically mentioned by the complainant in his complaint that he has purchased this automatic photocopier for commercial use and this is what he has repeated in his memo of appeal filed before this Commission on 23.4.1994 that the machine was purchased for commercial purposes. The exclusion clause about a machine being purchased for self-employment not to be included in the term "commercial use" was introduced in the Act of 1986 by Amending Act which came into force with effect from 18th June, 1993. The Parliament did not make the operation of this amendment retrospective. If they wanted to make the amendment retrospective they could have done so in exercise of their legislative power but they have not chosen to do so. This complaint was filed on 26.4.1990 when this amendment was not in force and, therefore, on the day the complaint was filed by the complainant he was not a consumer in the eye of law and hence he could not have approached the District Forum for any relief. Under these circumstances, with great respect to the judgment delivered earlier, we are firmly of the view that an automatic photocopier machine which was purchased in 1989 and warranty period of which expired on 7.11.1999. Admittedly the machine was purchased for commercial use by the complainant as mentioned in the first line of the complaint filed on 26.4.1990 and reiterated in the memo of appeal by the complainant filed on 23.4.1994 and thus we have no option but to hold that the complainant was not a consumer when he filed his complaint before the District Forum and he could not have been granted any relief according to the Explanation added to Section 2(1)(d) which came into force w.e.f. 18.6.1993.

Accordingly we accept the revision petition filed by M/s. Kores (India) Ltd. bearing No. 48/95 and set aside the order of the District Forum, Nagaur dated 7.4.1994. In this view of the matter the cross appeal filed by Shri Ram Singh representing M/s. Jodhpur Photostat, Kuchaman City also deserves to be dismissed because when the appellant was not a consumer on the date when he filed the complaint simply efflux of time he cannot be made a consumer. His case could have been covered under the Explanation if the amendment was made effective retrospectively. Rather he has come in appeal also with this contention that the machine was purchased for commercial purposes. Thus this Commission cannot construct a case for him of self-employment.

KEEPING in view all these facts and circumstances Appeal No. 779/94 filed by Shri Ram Singh of M/s. Jodhpur Photostat is dismissed whereas the Revision Petition No. 48/95 filed by M/s. Kores (India) Ltd. is allowed and the order of the District Forum, Nagaur dated 7.4.1994 is set aside. The appeal and the revision stand disposed of accordingly with no order as to costs. Ordered accordingly.