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JAMMU & KASHMIR STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, SRINAGAR
Hon’ble Mr. Justice M.Y. Kawoosa, President &
Ch. Vidya Sagar, Member
SHANKER SHAH ISHAR DASS JEWELLERS—Complainant
versus
FEDDERS LLYOD CORPORATION LTD.—Opposite Party
Complaint No. 123 of 1993—Decided on 11.12.2002
Counsels for the Parties :
For the Complainant :Mr. L.K. Sharma, Advocate.
For the Opposite Party :Mr. R.K. Gupta, Advocate.
Headnote:Consumer Protection Act, 1986 - Section 2(1)(d)(ii) -Consumer-Air Conditioners purchased by complainant were alleged faulty-Status of complainant as consumer-Six air conditioners were purchased for jewellery show room-Air conditioners were purchased for commercial purpose-Compensation of Rs.3,00,000 was demanded for business loss-Purchase could not be said falling within exception of self employment-No material to show that defects were found during warranty period-Complainant was not consumer and complaint was liable to be dismissed.
Demanding of compensation for commercial loss ipso facto proves that the goods were purchased for commercial purposes. By deleting this relief it does not disprove the fact that goods were purchased for commercial purposes.
In this case, complaint has been made in a haphazard manner. Nowhere it is stated as to when the Air Conditioners were purchased before us, so we could not go through the contents of the Warranty Card. Later it has been stated that in September, 1990, the season was not Air Conditioners were put to use in April, 1991. It is the fact that in the written version of OP has admitted in Para 9 that the Air Conditioners were installed in April, 1991 but it does not mean ipso facto that the warranty period starts from April, 1991. Complainant if relief on the warranty period should have clearly stated the date of purchase, date of installation and the original copy of the Warranty Card and this should have been placed on the record so that Commission could know the terms and conditions or the warranty Card and from which date warranty starts. In a common parlance warranty always starts from the date of installations. It could have been cleared from the contents of the Warranty Card but that has not been produced. Even the complainant in his statement has not stated as to when the Air conditioners were purchased and when the delivery took place. He has not even said that the warranty period starts form such and such date. So we are of the firm opinion that the complainant has failed to prove that the fault was found during the warranty period, as the complainant had not approached the OP within the warranty period intimating the fault in the Air Conditioners and it could not be said that there was any deficiency in service. For these reasons, therefore, we are of the view that the complainant has failed to prove his case which is dismissed. No order as to costs.
Mr. Justice M.Y. Kawoosa, President—Facts barely needed for the disposal of this complaint are that complainant purchased six Air Conditioners to be installed in his jewellery shop at Jammu for a sum of Rs. 1,39,990.00 though the date of purchase is not given in the complaint but it emerges that these have been purchased sometime in September, 1990. They proved faulty. Since the Air Conditioners were not put to use from October, 1990 to April, 1991. In April, 1991 when the Air Conditioners were put in service it was found that four of such were faulty. Matter was brought to the notice of O.P. O.P. did not address himself to the complaints. Finally legal notice was sent to him and the Air Conditioners were not made workable.
2. O.P. took a stand in the written version that the complainant is not a consumer. These were for commercial purpose, and secondly the complainant failed to make any complaint regarding non-function of such Air Conditioners during the warranty period, and thirdly there is no deficiency in service.
3. However, this Commission by its judgment dated 9.1.1996 allowed the complaint and directed the O.P. to replace the Air Conditioner with a guarantee of one year within six weeks from the date of order failing which refund of whole money together with interest at the rate of 18 per cent per annum. This finding of this Commission was assailed before the Division Bench of the Hon’ble High Court in appeal. Hon’ble High Court remanded the case back to this Commission on the ground that the judgment of the Commission was not based on the evidence. Neither the deficiency in service was proved nor the defect during the warranty period was proved and more so Commission did not address itself to the provisions of Section 4(d) of J&K Consumer Protection (Amendment) Act, 1997. This Explanation reads as under :
“For the purpose of Sub-clause (i) `Commercial purpose’ does not include use by a consumer of goods bought and used by him exclusively for the purposes of earning his livelihood, by means of self-employment.”
After the case was remanded back, opportunity of producing evidence was given to both the parties. Complainant filed his affidavit and was cross-examined. Similarly, O.P. also has examined two witnesses, Ashwani Sharma and Anil Sharma.
4. Heard learned Counsel for the parties. First we will deal with the point raised that the complainant is not a consumer because admittedly the Air Conditioners were purchased for installing them in the business room of jewellery shop of the complainant. So far this fact is concerned it is admitted that there is no dispute between the parties that 6 number of Air Conditioners were purchased for the show room of the big concern of the complainant. So far as the judgment of the Hon’ble High Court is concerned we understand that the Hon’ble High Court has been convinced that the Air Conditioners were purchased for commercial purpose we have been only asked to address ourselves as to whether it comes under the Explanation that the business run by the complainant was for the purpose of earning his livelihood by means of self-employment.
5. It has been admitted by the complainant in his statement that Air Conditioners were installed in the shop to give comforts to the employers/employees and customers who visit the shop. From the evidence it appears that the complainant is running a big jewellery concern which obviously cannot come under the explanation restated above. Learned Counsel for the O.P. has vehemently argued that the Air Conditioners were purchased for commercial purpose and complainant is running a big jewellery concern and Gold Smith shop.
6. Learned Counsel for O.P. has relied on New Empire Silk House v. Carrier Aircon Ltd., II (1994) CPJ 564. This was a case before Uttar Pradesh State Consumer Disputes Redressal Commission regarding same facts. Complainant purchased an Air Conditioner for the shop from the O.P. which was found faulty. It was held therein that the air cond
