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M/s. Prakash Scanner v/s Watthour System

    First Appeal No. 624 of 2013
    Decided On, 26 February 2015
    At, National Consumer Disputes Redressal Commission NCDRC
    By, MEMBER
    For the Appellant: Nikhil Jain, Advocate. For the Respondent: ---------

Judgment Text
Appellant/Complainant has filed this appeal under Section 19 of the Consumer Protection Act,1986 (for short, ‘Act’), challenging order dated 30.07.2013 passed by State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (for short, ‘State Commission’) vide which Consumer Complaint No.05 of 2007 filed by the appellant, was dismissed.

2. It is the case of appellant, that he is a partner of firm M/s Prakash Scanner and for his livelihood and employment, purchased a scanner in the name of his firm for image setting(used for preparing negatives for the offset printing). The same was purchased from Respondent/Opposite Party for a sum of Rs.13 lacs. The Scanner was delivered on 13.07.2004. After installation, it worked upto 12.11.2004. Thereafter, it became defective and stopped working. On complaint made to the respondent, it was repaired and again became defective on 17.1.2005 and was again repaired. It is stated, that scanner became defective time and again. Thus, appellant had been handed over a defective scanner by the respondent. Therefore, alleging deficiency on the part of respondent, appellant filed a consumer complaint seeking following reliefs;

(a) That the respondent should be ordered to return back the questionable scanner & UPS and Pay Rs.13.52,000/- for the scanner & Rs.41,600/- for the UPS with 18% interest p.a. on the whole amount from the date of 22.7.2004 till the actual date of payment to the complainant.

(b) That the respondent should be ordered to return back the expenses related to the terms of the questionable-scanner-construction of the scanner room, installation, electricity material fitting, electricity connection and dissection and labour etc. Rs.2,95,346.50/- to the complainant.

(c)That the respondent should be ordered to return back the interest of the Bank Rs.1,90,835/- paid by the complainant and to pay the future interest to the Bank by him.

(d)That the respondent should be ordered to pay Rs.1,00,000/- for the mental & physical harassment bear by the complainant.'

3. Respondent in its written statement took preliminary objection sating that, appellant is not a consumer as per Section 2(1) (d) of the Act. The appellant is a partnership firm having five partners viz; M/s. Prakash Scanner in which (1) Sh. Baliram Pandey, (2) Sh. Kashi Nath Pandey (3) Sh. Sunil Kumar Pandey (4) Sh. Shyam Narayan Pandey and (5) Sh. Utam Prakash Pandey. The firm is engaged in commercial activity.

4. On merits, it is stated that appellant has still not paid balance payments of Rs.6,46,200/- and Rs.9,600/-. The fault in the machine were due to the earthing problem at the end of the appellant due to non-maintenance of required humidity and temperature. Respondent’s engineer brought these facts to the notice of the appellant, but he failed to take remedial measures. Despite this, respondent provided service to the appellant, even after the warranty period. Hence, there is no deficiency on the part of the respondent.

5. The State Commission, vide impugned order dismissed the complaint of the appellant.

6. Hence, present appeal.

7. We have heard the learned counsel for appellant and gone through the record.

8. It is submitted by Mr. Nikhil Jain, Advocate for appellant, that Scanner in question was purchased by the appellant for his self-employment and for his earning livelihood. Therefore, complaint is maintainable and impugned order is liable to be set aside.

9. In para no.1 of the complaint, appellant has averred;

'That the complainant is a partner of firm M/s Prakash Scanner and for his livelihood and employment thought to purchase a scanner in the name of Prakash Scanner for image setting and to purchase it invited quotation.'

10. The State Commission, in the impugned order observed;

'In the first para of the complaint, complainant have stated that they are Partnership Firm carrying on business mentioned therein.

It is therefore, clear that the complainant is a commercial entity for the purpose of its business has hired services of the O.Ps. and deficiencies alleged in that respect.

However, in view of the recent amendment to Section (2) (1) (d) which defines consumer the hirer of service if happens to be a commercial entity like as the case herein, then such matters are excluded from the purview of the consumer Protection Act, 1986. Amended clause specifically excludes the same. That being so, we hold the complaint filed is not maintainable as consumer dispute before us.'

11. Appellant in its complaint, has nowhere stated as to how many partners are there in M/s Prakash Scanner. On our directions, appellant has placed on record copy of the Partnership Deed. As per partnership deed, there are five partners in firm M/s Prakash Scanner. This partnership deed was executed for following purposes;

'That the business of partnership will carry on Scanning Work the partners shall have the option to embarkupon any new line of business and open & close branches and all the terms & conditions of the partnership shall apply to them.'

12. Thus, it is manifestly clear, that partnership firm is to carry on business of scanning work and to embark upon any new line. In this deed it is nowhere mentioned, that this firm is carrying the business for the livelihood of the present appellant.

13. Expression ‘consumer’ has been defined in Section 2 (1) (d) of the Act, and it read as under;

'Consumer means any person who,---

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;

Explanation------ For the purpose of this clause, 'commercial purpose' does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment'.

14. Since, appellant’s firm is carrying on business activity and which is a purely commercial activity, therefore it wou

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ld not fall under the definition of ‘consumer’ as per the Act. 15. The State Commission rightly dismissed the complaint on the ground, that appellant is not a ‘consumer’. We do not find any infirmity or illegality in the impugned order. Hence, present appeal having no legal basis is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only). 16. Appellant is directed to deposit cost by way of demand draft, in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. 17. In case, appellant fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization. 18. List on 27th March, 2015 for compliance.