SREE KAVYA PLASTICS vs AREMPEE INDUSTRIES

-THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE complainant is a proprietary concern and the proprietrix is Mrs. Suguna Ravi. She has started this business to earn her livelihood by self-employment as she has been abandoned by her husband. She placed an order with the opposite party for the purchase of an Injection Moulding Machine for making plastic articles. THE total price of the Machine is Rs. 1,01,042/- including excise duty, sales tax etc. THE machine was supplied on 25.12.92 but was found to be unworkable due to major manufacturing defects. THE opposite party sent another Injection Moulding Machine on 7.5.93, but it was no better. It was also unworkable. In spite of repeated requests, the opposite party has not made the second machine serviceable or replaced it or refunded the price. THE complainant filed O.P. 471/93 on the file of this Commission for replacing the defective machine, without getting any legal assistance. It was not stated in the said complaint that the machine was purchased for earning her livelihood by means of self-employment THE complainant subsequently engaged the services of a lawyer who advised the withdrawal of O.P. 471/93 and file a fresh complaint. THE said complaint was therefore withdrawn with an endorsement "Complaint withdrawn with liberty to file a fresh complaint". Hence, this present complaint. The relief asked for is replacement of the machine with a new one free from defects and to pay compensation in the sum of Rs. 4,00,000/- for loss of business, Rs. 1,00,000/- to mental pain and agony and Rs. 81,277/- towards interest paid by the complainant to National Small Industries Development Corporation.

The complaint is resisted by the opposite party. The complainant filed an earlier O.P. in O.P. 471/93 before this Commission on the same cause of action and for the same relief. The opposite party filed a detailed counter contending that the machine was purchased and put to use for large scale manufacturing and processing activity carried on for profit and the complaint was not maintainable. When the question of maintainability of O.P. 471/93 was taken up, the complainant instructed her Counsel to withdraw the complaint and accordingly the complainant''s Counsel made an endorsement withdrawing the complaint with liberty to file a fresh complaint. The opposite party objected to the granting of liberty to file a fresh complaint and this Commission dismissed the complaint as withdrawn and no liberty was given to file a fresh complaint. The said order has become final. The fresh complaint now filed is not maintainable.

EXS. A-1 to A-41 and B1 to B4 are marked by consent proof affidavits are filed. No oral evidence have been let in. The points that arises for determination are: (1) Whether a complaint is maintainable, in view of the dismissal of the earlier O.P. 471/93. (2) Whether the complainant is a consumer within the meaning of the Sec. 2(1)(d)(i) of the Act and the complaint is maintainable. (3) To what relief if any is the complainant entitled?

Point No. 1.

THE complainant has filed an earlier O.P. in O.P. 471/93 on the file of this Commission against the same opposite party on the same cause of action and for the same relief. THE allegation is that the opposite party has sold to her a defective Injection Moulding Machine and she prayed for the replacement with a new one free from defects and for compensation. THE opposite party raised the question that this machinery has been purchased for commercial purpose and the complainant is not a consumer and the complaint is not maintainable. At the time of the hearing, the learned Counsel for the complainant made the following endorsement in the complaint in O.P. 471/93. "Complaint withdrawn with liberty to file fresh Complaint." This Commission recorded the above endorsement and dismissed the complaint as withdrawn. But, it did not give any liberty to the complainant to file a fresh complaint. The complainant has now come forward with this complaint with the allegation that the machinery has been purchased by her to earn her livelihood by self-employment. This contention is certainly an after thought. Whatever it may be, the question is whether such a fresh complaint is maintainable in law. The earlier complaint and the present complaint are against the same opposite party, based on the same cause of action and for the same relief. The earlier complaint was dismissed as withdrawn without giving any liberty to file a fresh complaint. The said order has become final and conclusive between the parties. It will certainly act as resjudicata between the parties. A fresh complaint on the same cause of action is not therefore maintainable. This complaint fail on this sole ground. Point No. 2. We are, however, willing to go into the question whether the machinery has been purchased by the complainant for earning her livelihood by self-employment, within the meaning of the explanation to Section 2(1)(d)(i) of the Consumer Protection Act. Earning livelihood by self-employment means, the employment of ones own self in the venture, just for earning for his or her maintenance. A tailor purchasing a Sewing Machine and stitching garments for his livelihood, a driver plying his own taxi or lorry for earning his livelihood, a xerox operator using a machine and earning his maintenance or a typist using his typewriter and doing job work for his livelihood are instances where persons earn their livelihood by self-employment. They may employ one or two persons for doing odd jobs. But, a venture in which several persons are employed, skilled and unskilled and huge profit is earned cannot be termed as a venture for earning livelihood by self-employment. Ex. A-37 is the project report for the manufacture of injection moulded plastic items submitted by the complainant to the National Small Industries Development Corporation. It is seen from this report that the complainant has employed one Supervisor at a salary of Rs. 1,500/- per month, 3 skilled workers at Rs. 750/- per month each, 3 unskilled workers at Rs. 400/- per month each and an Office boy at Rs. 300/- per month. The total emoluments payable to the employees per month comes to Rs. 5,250/-. This project report further shows that the sale per year will be approximately Rs. 9,96,000/- and the cost of production including the cost of raw materials, payments to the staff and other expenses will come to Rs. 8,16,000/- and the net profit will be Rs. 1,80,000/- which works out at a net profit of Rs. 15,000./- per month. This is certainly a huge profit and by no stretch of imagination can it be turned to be an earning for livelihood. It may also be pointed out that the complainant is also running another machinery in this business and it is known as Semi Automatic Hydraulic Operated Plunger type machine, (vide Page 71 of the Complainant typeset). It is also worthy of note that the complainant has also been hiring this machine in question to others. Ex. A-33 filed by the complainant is a communication from spectrum, surveyors and offering a sum of Rs. 475/- per shift of 8 hrs. for utilising this automatic injection moulding machine to manufacture his products. What more in necessary to show that the machinery has been purchased only for a commercial purpose, to wit, a large profit earning venture. The complainant cannot therefore claim to be a consumer within the meaning of Section 2(1)(d)(i) of the Consumer Protection Act. Point No. 3

IN view of our finding on points 1 & 2 the complaint is not maintainable and the complainant is not entitled to any relief.

IN the result, the complaint fails and is dismissed but without costs. Complaint dismissed.