IMPORTANT POINT
National Commission has to exercise jurisdiction vested in it only if the State Commission or the District Forum has failed to exercise their jurisdiction.

ORDER

The present revision petition has been filed against the order dated 28.6.2016 whereby the appeal of the petitioner against the order of the District Forum dated 2.2.2016 was partly allowed.

2. The brief facts of the case are that the respondent/complainant (hereinafter called “the complainant”) purchased Mini Mobile Batching machine for a sum of Rs.4.5 lacs inclusive of all taxes from the petitioner. The product was under warranty for a period of one year. The product, however, developed snags and was not running properly. Therefore, the petitioner was informed by the complainant. The petitioner did the repair work twice but still the product could not run properly. Even some parts of the product were replaced, despite that the machine did not run properly. The complainant had purchased the said machine for his business which he was doing for his livelihood and he was using said machine in that business. Aggrieved by the fact that the machine was not working properly, the complainant filed the complaint.

3. The petitioner took the plea that the complainant was not a consumer since he was using the machine for commercial purpose and that the motor and other electronic parts were not under warranty. All the other contentions were admitted.

4. Parties led their evidences before the District Forum. The District Forum after going through the evidences on record reached to the conclusion, relying on the judgment of tis Commission in Viewtech Imaging Equipment Pvt. Ltd. & Anr. vs. CMC Ltd. & Anr., 2008 (2) CPJ 240, that the complainant is a consumer within the meaning of Consumer Protection Act, 1986. It also reached to the conclusion on the basis of evidences on record that the machine was defective from the very beginning and the fact that even the petitioner could not repair it properly despite repairing it twice, goes to show that there was some serious defect in the machine and concluded that there was deficiency in service on the part of the petitioner. Following directions were issued by the District Forum: -

“i. To refund Rs.4,10,000/- being the price of the machine in question to the complainant.

ii. To pay Rs.25,000/- as compensation for mental agony and harassment.

iii. To pay Rs.5,500/- as costs of litigation.”

5. This order is impugned before the State Commission by the petitioner. The similar contentions were raised before the State Commission. The State Commission also relying on the judgment of Hon’ble Supreme Court in the case of Lakshmi Engineering Works vs. P.S.G. Industrial Institute, 1995 AIR 1428, 1995 SCC (3) 583 reached to the conclusion that the complainant is a consumer. It also, after re-appreciating and reassessing the evidences on record reached to the conclusion that since the machine was defective from the very beginning as it could not run properly and the defects were reported immediately within a short span of few days of purchase, a defective good was supplied and therefore there was deficiency in service on the part of the petitioner. It also rejected the contention of the petitioner that the machine had developed faults because it was being used by unskilled persons, on the ground that no evidence to this effect has been led by the petitioner. After going through the evidences on record and re-appreciating it, the State Commission concluded that there was a deficiency in service and issued the following directions: -

“i. The relief qua refund of amount of Rs.4,10,000/- being price of the machine in question, and also Rs.5,000/- towards litigation expenses, granted by the Forum, shall remain intact.

ii. The relief qua compensation to the tune of Rs.25,000/- for mental agony and physical harassment, is set aside.

iii. This order shall be complied with by the appellant, within a period of 45 days, from the date of receipt of a certified copy of the same, failing which the amounts mentioned at sr. no. (i) above shall carry interest @ 9% p.a. from the date of filing the consumer complaint,