JCB INDIA LTD Vs. MALLAPPA SANGAPPA MANTRI

JUDGEMENT

(1.) Shri Mallapa Sangappa Mantri who is respondent No.1 herein was the original complainant. He purchased a JCB machine manufactured by the petitioner company/OP No.2 from M/s Aishwarya Earthmovers, Hubli, Karnataka who was OP No.1. The said JCB machine was used for excavation work but it is alleged that the machine could not work properly to excavate the earth and while doing the excavation, its teeth were broken and even after welding the same it could not work properly. The problem was intimated to OP No.1 who did not take any steps nor replace the spare parts. According to the complainant, there was oil leakage, slow function of hydraulic pump, improper setting of rear bucket in the dipper nose and few other defects in the machine. The said defects were noticed during the warranty period and, therefore, the OPs/petitioners were liable to carry out the repairs free of cost. However, when in spite of repeated requests and demands, the same were not attended to by the OPs, a consumer complaint came to be filed before the District Forum , Belgaum alleging deficiency in service. On notice, the OPs filed their written statement before the District Forum denying all the averments made in the complaint while admitting the purchase of the machine by the complainant from the dealer/OP-1 for Rs.19 lacs with warranty of one year or 2000 hours whichever occurs earlier. They vehemently opposed the status of the complainant as a consumer under the Consumer Protection Act and maintainability of the complaint before the Consumer

(2.) The main question which has been raised before us by the petitioners is as to whether the complainant who had purchased the JCB machine for Rs. 19 lacs and was using it for earning profits by renting it out for excavation proposes can be regarded as a consumer even for the purposes of services during the warranty period in view of the amendment to section 2(1)(d)(i) of the Act which came into force w.e.f. 15.3.2003.

(3.) We have heard Mr. Sanjeev K. Singh, Advocate, learned counsel for the petitioners. None has appeared on behalf of respondent No.1 and respondent No.2 was directed to be proceeded ex parte. It is contended by learned counsel for the petitioners that besides opposing the claim on the ground of jurisdiction as well as absence of any deficiency in service on their part, the petitioners right from initial stages of the complaint have been vehemently opposing its maintainability on the ground that the complainant / respondent No.1 is not a consumer because he was using the machine for commercial purposes by renting it out for excavation and earning profits. He submitted that by his own admission in the complaint, the complainant has alleged that he was forced to lose rental income of more than Rs. 7 lacs and hence has been put to heavy loss on account of alleged non-performance of the machine. In view of this and also the fact that the petitioners in their written statement before the District Forum as also in the appeal before the State Commission had raised this aspect but this important question was ignored and brushed aside without any cogent reason being recorded by the Fora below, he submitted that both the District Forum and the State Commission gravely erred in dealing with the complaint of the complainant who cannot be considered a consumer within the meaning of section 2(1)(d)(i) of the Act as amended w.e.f. 15.3.2003. In this context, he relied on the two cases decided by the National Commission on 20.4.2010 (Biilagi Sugar Mill Ltd. Vs. Kessels Engineering Works (P) Ltd. [ciple in the case of M/s Laxmi Engineering Works Vs. PSG Industrial Institute, 1995 2 CPJ 1 that where the complainant purchased the machinery for business activity for making profits, the purchase of machinery was for commercial purpose and the complainant cannot be regarded as a consumer for the purpose of Consumer Protection Act. Same principles is also highlighted in the various other decisions of the Hon'ble National Commission and other Hon'ble Commission listed below: