The purchaser becomes a Consumer within the warranty period, even if the goods were purchased for commercial purpose.

ORDER

S.N. Basu, Member - This is a Revision Petition filed by the OPs against the order dated 11.8.2008 passed in D.F. Case No. 59 of 2008 by the Howrah District Consumer Forum. In the said order the learned Forum held that the complaint is maintainable and the complainant is also a Consumer in terms of Section 2(1)(d) of the Consumer Protection Act, 1986 and rejected the petition of maintainability filed by the present Revision Petitioners before the Forum below.

2. The Revisionists contended that they are the manufacturer of industrial goods and they supplied one Mini Asphalt Hot Mix Plant to the present OP for a consideration of Rs. 4,94,000 on 4.6.2005. The OP raised allegation regarding defective functioning of the machine from time-to-time. The OP filed the case around May, 2008, i.e. almost after three years. The complaint petition is, therefore, barred by limitation and should have been dismissed by the Forum below in limine. The Petitioners also contended that the machine was utilized for commercial purpose and, therefore, the complainant is not a Consumer in terms of Section 2(1)(d) of the Consumer Protection Act, 1986. They further contended that the learned Forum had rejected all the three objections of the Petitioners namely, (i) the Complaint is barred by limitation, (ii) the machine was purchased for commercial purpose, and (iii) the complainant was not a Consumer in spite of placing supporting documentary evidence before the Forum. They have, therefore, come up with the prayer that the order of the Forum below dated 11.8.2008 in HDF Case No. 59 of 2008 be set aside and a stay operation on all further proceedings under the said case be passed. The revision petitioners relied on the decisions in 1996 (2) CPR 11 and 1996 (2) CPR 45.

3. The OP/Complainant in his written argument contended that the petitioners, who are the OPs before the Forum below, had filed the present Revision Petition with a view to delaying the proceedings. He stated that he is a civil contractor earning his livelihood through execution of various types of works. To facilitate such works he purchased the Hot Mix Plant from the petitioner for a consideration of Rs. 4,94,000 on 4.6.2005. The machine was supposed to give the declared performance as per the capacity mentioned by the company in their challan. The Description Column of the challan states that the capacity of the Hot Mix Plant per hour is 6 to 8 tonnes, whereas he had not seen the performance of the machine more than 3 tonnes per hour and machine had been subjected to breakdowns several times. He contended that as a result of such low performance and breakdown, the machine was found to be uneconomic since he had purchased the machine by taking bank loan for which he has to pay high interest. He had brought the above defect to the notice of the petitioners several times, both telephonically as also in writing, but no step was taken by the Petitioners to remove the defects of the machine and as a result, he had suffered substantial loss since inception of the machine. He again contended that due to such poor performance of the machine, not only the cost of construction went up there was substantial delay also in executing the works for which the machine was purchased. As a result, he was forced to hire similar machine from outside to maintain the schedule of his project. He further stated that he lodged a criminal case against the petitioner against which the petitioner had moved the Hon'ble High Court at Kolkata, which directed the Forum to hear the case on merit as per law. He also contended that the complaint had been filed within two years from the date of expiry of the warranty period. He again contended that since the defect had arisen during the warranty period and he had brought it to the notice of the petitioners, his status as a Consumer cannot be disputed. He has, therefore, come up with the prayer to dismiss the Revision Petition which is intended to delay the process of law