IMPORTANT POINT
Machine purchased for earning livelihood, cannot be termed as commercial purpose.

ORDER (ORAL)

V.K. Jain, Presiding Member—The complainant purchased a machine manufactured by the petitioner company from respondent No. 2 who is an authorised dealer of the petitioner, for a consideration of Rs. 15 lacs and took delivery of the machine in October 2006. The machine carried warranty of 3000 hours or one year, whichever was earlier. The case of the complainant is that the machine developed defects from time to time and was taken to the workshop of the respondent No. 2 but the defects were not removed. Lastly the technician of respondent No. 2 visited the complainant in December 2007. He advised overhaul for the machine which the complainant refused since he wanted only the replacement of the machine. Being aggrieved on account of the alleged defects in the machine the complainant approached the concerned District Forum by way of a consumer complaint.

2. The complaint was resisted by the petitioner as well as by respondent No. 2 who denied any manufacturing defect in the machine. A preliminary objection was taken that the complainant was not a ‘consumer’ he having purchased the machine for a commercial purpose. It was also stated in the written version that the machine was handled by an unskilled person and that had resulted in the machine developing defects. Vide its order dated 12.05.2009 District Forum directed the petitioner to replace the machine with fresh warranty and directed the complainant to return the old machine to petitioner. A compensation of Rs. 1 lacs and costs quantified at Rs 2,000 was also awarded. The complaint was dismissed against the respondent No. 2 who had sold the machine.

3. Aggrieved from the order passed by the District Forum both the petitioner company as well as the complainant preferred separate appeals before the concerned State Commission. Vide impugned order dated 14.10.2014 the State Commission directed the replacement of the machine with a fresh warranty against return of the old engine. Rest of the order passed by the District Forum was confirmed.

4. As regards the preliminary objection the Ld. Counsel for respondent No. 2 has pointed out that in paragraph 8 of the complaint the complainant himself has alleged that he was paying heavy salary to the persons who were operating the machine and this by itself would show that the machine was purchased for a commercial purpose. The case of the complainant, on the other hand, is that the machine was purchased by him for the purpose of earning his livelihood he being a petty contractor. In reply to a questionnaire served upon him the complainant maintained that he was a small-time civil contractor and had employed only two persons. Thus, what stands established is that the complainant had employed two persons who were operating the machine for him and he was earning his livelihood through use of the machine.

5. The issue involved herein recently came up for the consideration of the Hon’ble Supreme Court in Paramount Digital Colour Lab & Ors. Vs. Agfa India Private Limited & Ors. wherein the appellants who were unemployed graduates decided to start photography business in partnership for self-employment and for their livelihood they purchased a Mini Lab machine for developing the photographs by use of Digital Technology for a consideration of Rs. 62.00 lacs. Alleging defect in the said machine, they filed a consumer complaint before the State Commission. The complaint was partly allowed by the State Commission. The appeal preferred by the opposite party before this Commission having been allowed, the complainants approached the Hon’ble Supreme Court by way of an appeal by Special Leave. Dealing with the question as to whether the appellants were consumers as defined in Section 2(1)(d) of the Act, the Hon’ble Supreme Court inter-alia observed and held as under:

“11. In this case, since the appellants have purchased the machine, Section 2(1)(d) of the Act is applicable. “Consumer” as defined under Section 2(1)(d) of the Act does not include