SAURABH OFFSET PRINTERS vs K.S.GUPTA

BY means of this complaint, the complainant has prayed for compensation of Rs. 8,09,256/- for non-working of machine and under other various heads. The facts of the case stated in brief are that the complainant deals in the printing of books etc. under the name and style of M/s. Saurabh Offset Printers at Agra. The opposite party Nos. 1 and 2 came to the office of the complainant in the year 1989 and requested him to visit their factory situated at Faridabad and to see the offset printing machines which are manufactured by them. The complainant was in need of one more machine for his printing press. Therefore, he went to Faridabad and he was shown various types of offset printing machines and the complainant selected one of them costing Rs. 5,79,866/-, including services charges of the machine and also guarantee for one year. He placed the order for one such machine on 6.5.1989.

THE complainant handed over a draft of Rs. 40,000/- of State Bank of India along with the order. A receipt dated 7.7.1989 was issued against the draft. On further demand of the opposite parties the complainant gave draft of Rs. 35,000/- on 10.7.1989. He also handed over drafts for Rs. 38,000/- on 13.7.1989, draft of Rs. 35,000/- on 18.7.1989 and draft of Rs. 17,000/- on 28.7.1989 drawn on State Bank of India, Agra. In this way complainant had paid a total sum of Rs. 1,65,000/-. The complainant approached the U.P. Financial Corporation, opposite party No. 3 for financing of rest of the amount. The complainant paid the final amount by draft dated 4.6.1990 for a sum of Rs. 4,14,866/- to opposite party Nos. 1 and 2 through UPFC. Thereafter, the opposite party Nos. 1 and 2 supplied the machine to the complainant on 6.6.1990. When the machine was installed in the press of the complainant, he found that the machine was not the same which was shown to him in the factory premises. The complainant telephoned the opposite party Nos. 1 and 2 assured that they are sending their Engineer to Agra for doing the needful. The complainant waited to hear from the opposite parties but no response was made by the opposite party Nos. 1 and 2.A complaint was also made to U.P. Financial Corporation, opposite party No. 3 but they also did not pay any heed.

This machine was not working and the interest on the amount taken on loan was accumulating. The complainant had to arrange for Engineers for repair of machine and get it in working condition from M/s. Purnima Printmac Industries, manufacturers of sheet fed offset machines, Roto gravure printing machine, Slitters Revinder and Accessories etc. He spent a sum of Rs. 1,52,000/- in replacement of parts and labour charges. The complainant continued informing about this fact to the opposite parties but they did nothing. In the meantime on 20.11.1990 the opposite party Nos. 1 and 2 met the complainant at Agra and on complaining regarding the machine, both of them badly beaten him and threatened him with dire consequences. The complainant filed a criminal case under Sections 406/420 of I.P.C. at Police Station, Shahganj, Agra. Non-bailable warrants were issued against them and the opposite party No. 1 was arrested by the police at Daryaganj, Delhi and sent him to Tihar Jail. Thereafter both the opposite parties kidnapped the complainant from Collectorate Court Campus, Agra on 5.12.1991 and confined him in a house in Tajganj, Agra and released him after badly beating.

THE complainant was medically examined at Agra and filed another criminal case in the Court under Sections 323/342/504/506 of I.P.C. This case is still pending. None of the opposite parties replied to any of the letters of the complainant. THE complainant has, therefore, prayed for compensation of Rs. 1,80,000/- for non-working of the machine from the day of installation @ Rs. 2,000/- per day for electricity charges, labour charges, premises rent and interest of U.P.F.C. and Bank. If the machine was in working condition he would have earned Rs. 500/- per day. THErefore, for 90 days loss a sum of Rs. 45,000/- was also claimed. THE complainant paid repairing charges of Rs. 1,52,754/- which has also been claimed. He has further claimed litigation charges of Rs. 8,000/- and a sum of Rs. 1,00,000/- as compensation for loss of injury caused by negligence of opposite parties and for mental torture. A further sum of Rs. 1,51,456/- as interest paid to U.P.F.C. on the loan amount upto 28.2.1992 was also claimed. THE complainant has prayed for 18% per annum interest on the total amount of compensation claimed i.e. Rs. 6,37,210/- for a period of 18 months of Rs. 1,72,046.70. The opposite party in its written statement has alleged that Sri K.S. Gupta, opposite party No. 1 is the Director of M/s. Roto Prints Equipment and Machinery Private Limited, New Delhi. The complainant has purchased a machine in dispute with intention to use it for printing of books for business purposes. The complainant is not a consumer for purposes of Consumer Protection Act. The complainant never visited the office of the opposite parties but he visited the factory of M/s. Rotoprint Machinery and Equipment Private Limited in March, 1989 and obtained a quotation dated 16.3.1989 from deponent for submission to some Bank for financial assistance. Subsequently another quotation was obtained in May, 1989 for submission to opposite party No. 3. No service charges were included in the quotation for which a separate contract was entered in June, 1990. Copy of quotation dated 16.3.1989 has been attached as Annexure No. 1 to the counter affidavit. The payment of Rs. 1,65,000/- is admitted. On 6.6.1990 the complainant with one other person who was introduced as an officer of opposite party No. 3, U.P. Financial Corporation, visited the office of the opposite party Nos. 1 and 2 and inspected the machine and took its trial, and then ordered for its purchase. The same was packed before the complainant when the draft for final payment was delivered by the said officer of U.P.F.C. The machine was loaded in the truck arranged by the complainant. Same day an annual maintenance contract as entered into between the deponent and complainant for a sum of Rs. 32,000/- for one year and the complainant issued two cheques of Rs. 20,000/- and Rs. 12,000/- respectively. It is wrong to say that the machine did not work. The complainant was happy with the performance of the machine and he recommended the machine to others. The complainant never made any complaint to them about the unsatisfactory performance of the machine. The machine was under guarantee for one year from 6.6.1990. No letter was written by the complainant to the opposite parties. The invoice Nos. 008 and 009 are fictitious documents. The parts have not been changed and nothing has been said as to why the parts were changed. The actual payment under both invoices have not been shown by any convincing document such as copies of account books of both of them, copy of Bank Draft or cheque or any certificate from Bank. The complainant had initiated two criminal cases against the opposite parties 1 and 2 which are false. The complainant is not entitled to any compensation as mentioned by him. No cause of action arose for filing of this complaint. It is further alleged that the proprietor of the press is Smt. Rekha Sharma but she has not filed any complaint. Sri Narendra Sharma has not shown any Power of Attorney and as such this complaint is bound to be rejected. M/s. Rotoprint Machinery and Equipment Private Limited is entitled to recover the amount of Rs. 32,000/- towards maintenance contract and also Rs. 10,000/- incurred as expenses in this case.

IN the rejoinder affidavit it has been alleged that is wrong to say that the complainant is not a consumer. Smt. Rekha Sharma is the proprietor and Narendra Sharma, being husband of her has Power of Attorney dated 1.12.1989. He is looking after the business in the name and style of M/s. Saurabh Offset Printers and he is a consumer under the Consumer Protection Act. IN the quotation dated 16.8.1989 in para 10 it has been mentioned that the guarantee period is for one year against any manufacturing defects. IN para 11 of the quotation it has been mentioned that the erection and training will be done by our Engineers at our cost. According to complainant this means that the machinery was supplied inclusive of the service charges. It is wrong to say that any separate agreement was entered into in June, 1990 by the parties regarding the service. When no maintenance contract was entered into between the parties, there was no question of issuing any cheque. It is alleged that some cheque duly signed by Smt. Rekha Sharma were stolen from the drawer of her table in the office kept in the Press. This incident has been informed to the Bank and the District Magistrate, Agra, copies of which are enclosed with the replication. The complainant had got the machine repaired vide bills etc. of M/s. Purnima Pointmac INdustries. Copies of Power of Attorney is filed as Annexure 3 to the replication. The parties lead evidence in support of their respective contentions. On the date of arguments, none of the parties were present. Counsel for opposite party Nos. 1 and 2 were present on 1.9.1999. Thereafter the Counsel for the opposite parties 1 & 2 did not appear on any of the dates fixed. A notice was sent to the complainant by order dated 22.3.2001 for 24.4.2001. Inspite of this notice, none was present on the date of arguments on 24.4.2001. Hence the case was reserved for judgment. We have perused the evidence on record. The first objection raised by the opposite party Nos. 1 and 2 in their written statement is about the maintainability of the complaint case. The opposite parties in para 2 of the written statement as well as affidavit have alleged that the complainants concern is a commercial concern and the machine was purchased by him for printing of books for commercial purposes and the complainant is not a consumer. A perusal of the complaint will go to show that the complainant carries on business of printing of books etc. under the name and style of Saurabh Offset Printers. It has not been mentioned in the complaint that the complainant is not carrying on this business on a commercial basis. When the complainant is doing business on a commercial basis it is not a consumer case in view of the definition of consumer contained in Section 2(1)(d) of the Consumer Protection Act. The complainant is doing business on a commercial basis and when the business is being done on a commercial scale the complainant cannot be considered as a consumer. A perusal of Section 2(1)(d) goes to show that the consumer does not include a person who obtains such goods for resale or for any commercial purpose. It has not been alleged in the complaint by the complainant that the machine which was bought by the complainant was used by her exclusively for the purpose of earning her livelihood by means of self employment. There must be an evidence to show that the complainant is earning her livelihood for self employment. When such a mention is not there, it will be deemed that the purpose for which the machine was purchased was commercial. This fact is clear from the allegations of paragraph 3 of the complaint in which the complainant has stated that the complainant was in need of one more machine for his printing press. This means that the complainant has other machines and he wanted to purchase one more machine for his business which is running on commercial scale. Thus the contention of the opposite parties 1 and 2 that the machine was purchased for commercial purpose is correct. Therefore, the complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act and the present complaint is not maintainable.

THE next objection of the opposite party Nos. 1 and 2 in the written statement is that the complaint has been filed on Power of Attorney and as such it is not maintainable. A perusal of the complaint will go to show that it has been filed by Narendra Sharma, Attorney of M/s. Saurabh Offset Printers. Sri Narendra Sharma is not the owner of the press. It has been alleged in the replication that Smt. Rekha Sharma, wife of Sri Narendra Sharma, the Attorney Holder, is the proprietor. This means that Smt. Rekha Sharma, is the proprietor and Sri Narendra Sharma is merely an Attorney Holder. In the complaint Narendra Sharma has signed. THEre are no signatures of Smt. Rekha Sharma on the complaint. Under the Consumer Protection Act a complaint is to be filed by the complainant. It cannot be filed on behalf of the complainant by an Attorney Holder. Section 2(c) of the Consumer Protection Act shows that the complaint means any allegations in written made by a complainant. This shows that the complaint has to be made by the complainant and it cannot be filed by any other person on behalf of the complainant. THE Consumer Protection Act permits that the complaint can be continued by a Power of Attorney holder once it is filed by the complainant. THErefore, under the provisions of the Consumer Protection Act it is clear that the complaint should have been filed by the complainant and it cannot be filed by any other person on complainant''s behalf. THErefore, this complaint is also defective on this ground.

IT is not necessary for us to enter into the merits of the case as the complaint is liable to be dismissed on both the grounds mentioned above, i.e. on the ground that the complainant is not a consumer and under the provisions of Section 2(1)(d) of the Consumer Protection Act and because the complaint has not been filed by the complainant under her signature but by the Power of Attorney holder. ORDER The complaint is dismissed. No order as to the costs. Let copy as per rules be made available to the parties. Complaint dismissed.