THRESSIAMMA PAUL vs KILCO PERFECT MACHINES

THIS complaint is filed under Section 12 of the Consumer Protection Act claiming compensation from the opposite parties alleging defect in the goods supplied by the first opposite party.

THE material allegations in the complaint are as follows: Neither the complainant nor her husband had any job and the complainant obtained a loan from the second opposite party, the Kerala Financial Corporation. An amount of Rs. 1,39,000/- was received from the second opposite party by way of loan and she constructed shed and installed the machine and started an oil mill under the name and style St. Paul Oil Mills. It started production on 9th December 1989. She also alleged that the second opposite party deducted an amount of Rs. 6,790/- out of the amount sanctioned. It was further alleged the ma- chine supplied was defective and sub-standard and was not functioning properly. THE matter was reported to the first opposite party and repair was done several times. Many spare parts were purchased on the instruction of the technician deputed by the first opposite party for repairs. However, it did not improve the functioning of the machine. She sustained a loss of about 2 lakhs after the starting of the mill. She sent a notice through the Lawyer to the second opposite party. She also alleged that she purchased this machine from the first opposite party as per the instruction of second opposite party and both the opposite par- ties are responsible all the loss sustained by her. In the circumstances she is entitled to get the relief sought for in the complaint. In the version filed by the opposite party the allegations of the complaint were denied and it was contended that the claim was barred by limitation. It was also averred that the complaint was bad for non-joinder of necessary parties as the manufacturer M/s. Kanpur Foundaries Miraj, U.P. has not been impleaded. It is also averred that the allegations are against the quality of the machine and it is the manufacturer who is bound to answer to the allegations. It is further averred that the complainant filed O.P. No. 414/91 before the Consumer Disputes Redressal Forum, Thrissur, which was dismissed and it was after lapse of five years the complaint was again filed before this Commission. It is also stated that the first opposite party is not the agent of the second opposite party and the first opposite party is only an approved distributor-cum-seller of goods and there is no relationship of the principal and agent between the first opposite party and the second opposite party as alleged by the complainant. The first opposite party did not erect the machine and had only supplied the machine. There was no occasion for the mechanics of the first opposite party to express any opinion about the machinery and much less to give it in writing as to the quality or fitness of the machinery. This opposite party also does not know whether he sustained loss. He had no notice from the complainant on any of the aspects.

The second opposite party also filed a version in which it was contended that there is no hiring of service for consideration entered into between the complainant and the second opposite party. Further the loan was availed of for a commercial purpose and therefore the complain- ant will not be a consumer within the purview of Consumer Protection Act. A loan of Rs. 1,45,000/- was sanctioned but the complainant has availed of only Rs. 1,39,000/- and therefore the second respondent reduced and refixed the loan. The allegation that the first respondent is the recognised agent of the second respondent also was denied. There was also no reduction or withholding of any amount without any reason as alleged by the complainant. The second respondent had no approved agent at all. The second respondent has not asked the complain- ant to purchase the machine from the first opposite party. It is not correct to say that no reply was sent to the notice issued by the complainant through a Lawyer. He sent a detailed reply on 10.5.1991 to the complainant. The complainant has submitted the quotations from the suppliers and the second opposite party has only disbursed the loan sanctioned. Therefore the complaint is liable to be dismissed.

THIS complaint was dated 29th April, 1991. We find that initially that O.P. 414/1991 was filed before the District Forum, Thrissur, which was returned to the complainant on 5th February, 1993 stating that the District Forum has no territorial jurisdiction. It is seen from the com- plaint, the complaint was received by the District Forum only on 30.5.1991. Though the complaint is dated 29th April, 1991, it was represented before this Commission on 27.2.1993. The complainant filed an affidavit before this Commission and also produced Exts. B 1 to B 8. It appears the purchase was made in 1989. In the affidavit filed by the complainant she has spoken in terms of what is contained in the com- plaint. She also gave oral evidence as PW 1. Exts. P1 to P9 were marked.

THE following points arise for consideration: (i) Whether the complainant is a consumer? (ii) THEre is any deficiency in service on the part of all or any opposite parties? (iii) If so, what is the relief to which the complainant is entitled ? (iv) What is the order as to costs ?

It is not disputed that the machine was supplied by the first opposite party with the finance provided by the second opposite party and the contention raised by the opposite parties is that the complainant is not a consumer. It is contended that the machine was purchased for commercial purpose and therefore the complain- ant is not a consumer. Learned Counsel for the complainant however, contended that the complainant will come within the purview of the Explanation to Section 2(d) of the Consumer Protection Act as the purchase was for use by the complainant exclusively for earning livelihood by means of self-employment. The complainant has in her evidence and also in the affidavit she filed stated that she and her husband were un- employed and the purchase was made to earn livelihood by means of self-employment. On the other hand the Counsel for the opposite parties contended to bring the complainant within the ambit of Explanation to Section (2)(d), it is necessary that the complainant must operate the machine by herself. In her evidence the complainant has admitted that for the operation of the ma- chine three employees were engaged by her though she stated that she is also operating. We are not satisfied that the machine was operated by the complainant. In the complaint there is no such allegation. The only allegation made in the complaint is that the purchase was for self-employment to earn livelihood by means of self- employment. In this context the decision rendered by the Supreme Court in Lakshmi Engineering Works v. PSG Industrial Institute, AIR 1995 Supreme Court Cases 583 is relevant. The Supreme Court has emphasised that to bring a person within the explanation of Section (2)(d)(1) of the Consumer Protection Act, the purchase of the goods must be for use for earning livelihood by means of self-employment. The Supreme Court has given example. The purchase of a car by a driver, if the purchase is to earn a livelihood by means of self-employment. If he does not drive the car he would be outside the purview of Explanation. We also find that though the complainant filed a petition to appoint an expert Commissioner to inspect the machine that was not pressed and when this matter was brought to the notice of the Counsel for the complainant he stated that no purpose will be served by appointing an expert Commissioner at this stage. The machine was purchased in 1988. There is no evidence to establish that the machine was suffering from any manufacturing defect apart from the assertion of the complainant. In the circumstances, we are unable to give any direction to the opposite party to replace the machine or to refund the cost of the machine. All those questions really do not arise as it is not established that the complainant is a consumer within the meaning of Section 2(d).

AS far as the liability of the second opposite party is concerned there is absolutely no material to show that there is any deficiency committed by the second opposite party who has only helped the complainant by granting a loan for purchase of the machine,

THE foregoing discussion would show that there is no merit in the complaint. It is accordingly dismissed. Complaint dismissed.