State Consumer Disputes Redressal Commission
Rajesh Kumar vs Punjab State Power Corporation Ltd on 19 April, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.348 of 2012
Date of institution : 22.3.2012
Date of decision : 19.4.2012
Rajesh Kumar S/o Shri Vijay Kumar aged about 46 years, Sole Prop. of M/s
Krishna Rice Mills, Village Ubha, District Mansa.
.......Appellant
Versus
1. Punjab State Power Corporation Ltd., The Mall, Patiala through its
M.D./Chairman.
2. AEE/SDO, Punjab State Power Corporation Ltd., Sub Urban Sub Division,
Maur, District Bathinda.
......Respondents
First Appeal against the order dated 14.2.2012 of
the District Consumer Disputes Redressal Forum,
Bathinda.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mr. B.S. Sekhon, Member.
Present :-
For the appellant : Shri Munish Goel, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
VERSION OF THE APPELLANT:
The appellant was running the Rice Sheller in the name and style of M/s Krishna Rice Mills in Village Ubha, District Mansa. He had taken the electric connection from the respondents. It was a seasonal mill for which the minimum charges were payable for a period of four and a half months. However the respondents had raised the demand of Rs.60,672/- which was illegal. Hence the complaint for deficiency in service.
VERSION OF THE RESPONDENTS:
2. The respondents filed the written reply and contested the case.
PROCEEDINGS BEFORE THE DISTRICT FORUM.
First Appeal No.348 of 2012. 2
3. Parties produced affidavits/documents in support of their respective versions.
4. Learned District Forum dismissed the complaint vide impugned judgment dated 14.2.2012.
5. Hence the appeal.
DISCUSSION:
6. The submission of the learned counsel for the appellant was that the appeal be accepted and the impugned judgment dated 14.2.2012 be set aside. It was also submitted that the demand notice for Rs.60,672/- be also set aside.
7. Record has been perused. Submissions have been considered.
8. The appellant is running the Rice Sheller and the appellant had hired the services of the respondents for the supply of electric energy to the Rice Sheller of the appellant. Obviously therefore the Rice Sheller was being run by the appellant for earning huge profits. It was not a single man's job. Therefore the appellant had hired the services of the respondents for commercial purpose and hence he was not a consumer of the respondents.
9. The word 'consumer' has been defined in Section 2(1)(d) of the Consumer Protection Act (in short "the Act"). It reads as under : -
"2(1)(d) "consumer" means any person who, --
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or First Appeal No.348 of 2012. 3 "(ii) : [hired or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hired or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purposes].
[Explanation - For the purpose of this clause, "commercial purpose' does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]"
10. The words 'commercial purpose' were earlier a part of Section 2(1)(d)(i) in the Consumer Protection Act. These were later on introduced in Section 2(1)(d)(ii) by way of amendment Act No.61 of 2002 which became effective with effect from 15.03.2003.
11. The words 'commercial purpose' have not been defined in the Consumer Protection Act. These words as used in Section 2(1)(d)(i) were interpreted by the Hon'ble Supreme Court in the celebrated judgment reported as "Laxmi Engineering Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)". The Hon'ble Supreme Court was pleased to observe as under : -
"The National Commission appears to have been taking a consistent view that where a person purchases goods 'with a view to using such goods for carrying on any activity on a large scale for the purpose of earning First Appeal No.348 of 2012. 4 profit' he will not be a 'consumer' within the meaning of Section 2(1)(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion - the expression 'large-scale' is not a very precise expression - the Parliament stepped in and added the explanation to Section 2(1)(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression 'commercial purpose' a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for 'commercial purpose would not yet take the purchaser out of the definition of expression 'consumer'. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. The explanation First Appeal No.348 of 2012. 5 reduces the question, what is a 'commercial purpose', to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., 'uses them by himself', 'exclusively for the purpose of earning his livelihood' and 'by means of self- employment' make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer."
12. Although the matter before the Hon'ble Supreme Court related to the provisions of Section 2(1)(d)(i) and at that time, the words 'commercial purpose' were not introduced in Section 2(1)(d)(ii). However the Hon'ble Supreme Court in this judgment had interpreted the meaning of the words 'commercial purpose'. First Appeal No.348 of 2012. 6 These very are the words introduced in Section 2(1)(d)(ii) with effect from 15.3.2003. Therefore, the meaning of words 'commercial purpose' for the purpose of Sections 2(1)(d)(i) and 2(1)(d)(ii) is the same.
13. Therefore, the interpretation of the words "commercial purpose" given by the Hon'ble Supreme Court in Laxmi Engineering Works's case (supra) would also be applicable to the words 'commercial purpose' as used in Section 2(1)(d)(ii).
14. The words 'commercial purpose' were also considered by the Hon'ble National Commission in the judgment reported as "Harsolia Motors v. National Insurance Co. Ltd., 2005 CTJ 141 (CP) (NCDRC)". The Hon'ble National also considered the judgment of the Hon'ble Supreme Court in Laxmi Engineering Works's case (supra). The Hon'ble National Commission held as under : -
"25. Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words 'for any commercial purpose' it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose."
15. The Hon'ble National Commission distinguished the case relating to the insurance services hired/availed by a consumer by holding that the insurance policy is taken only for indemnification of any loss and that was not intended to generate profit. It was held as under : -
"26. In this view of the matter, a person who takes insurance policy to cover the envisaged risk does not take the policy for commercial purpose. Policy is only First Appeal No.348 of 2012. 7 for indemnification and actual loss. It is not intended to generate profit."
16. The Hon'ble National Commission considered a case in the judgment reported as "Mohammad Haseeb Ahmad v. Maharashtra State Electricity Board and others" 2010 CTJ 886 (CP)(NCDRC) where electric connection was taken for running a stone crusher. It was held by the Hon'ble National Commission as under:-
"13. It has been held that buying of goods and services for running commercial activity, stands excluded from the purview of the Act after the amendment of Section 2(1)(d)(ii) with effect from 15.3.2003.
14. Faced with this, learned Counsel for the petitioner contended that the Explanation to Section 2(1)(d)(ii) of the Act, excluded, from the ambit of commercial purposes, any goods purchased by the consumer and used by him exclusively for the purpose of earning his livelihood by means of self-
employment. Such purchase of goods is not a
commercial purpose.
15. Petitioner, in his complaint, had not stated that he had taken the electricity connection for running the stone crusher for the purpose of earning his livelihood by means of self-employment. No evidence had been led to that effect either before the District Forum or before the State Commission. Before us, the petitioner has filed an affidavit along with certain documents to show that he had undertaken the business of running the stone crusher for self-employment by taking the help of First Appeal No.348 of 2012. 8 7 persons, out of which, 4 were temporary and on day- to-day basis. Whether the business was being run for self-employment, is a question of fact, which had to be alleged and proved by the petitioner by leading evidence before the District Forum which was not done."
17. The latest judgment of the Hon'ble Supreme Court defining the limits of the words 'commercial purpose' is reported as "Economic Transport Organization v. Charan Spinning Mills (P) Ltd. & anr. I (2010) CPJ 4 (SC)" in which it was held by the Hon'ble Supreme Court as under : -
"25. We may also notice that Section 2(d) of Act was amended by Amendment Act 62 of 2002 with effect from 15.3.2003, by adding the words "but does not include a person who avails of such services for any commercial purpose" in the definition of 'consumer'. After the said amendment, if the service of the carrier had been availed for any commercial purpose, then the person availing the service will not be a 'consumer' and consequently, complaints will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment."
18. The Hon'ble Supreme Court also considered a similar controversy in Birla Technologies Limited's case (supra). It was held by the Hon'ble Supreme Court as under:-
"7. Shri U.U. Lalit, learned Senior Counsel appearing on behalf of the appellant pointed out that there is a basic error committed by the National Commission inasmuch as it has proceeded on the basis that the complaint was filed on 1.8.2000, which was First Appeal No.348 of 2012. 9 prior to the amendment of Section 2(1)(d)(ii) by the Amendment Act, 2002. Shri Lalit pointed out that the complaint in fact was filed on 26.6.2003 i.e. after the amendment of the said Section, which came on 15.3.2003. The learned Senior Counsel, therefore, submitted that even if there was any service which was hired from the appellant in view of the finding of the National Commission that the goods themselves were purchased from the appellant for commercial purposes, there would be no question of the service being included in Section 2(1)(d)(ii) particularly in view of the amendment. The learned Senior Counsel pointed out that the service offered by the appellant was only for proper working of the Modules which were included in the software and as such was for commercial purpose. He, therefore, pointed out that the order of the National Commission holding the complaint maintainable to the extent of service offered is clearly incorrect, as it proceeds on the wrong assumption that the complaint was filed on 1.8.2000 i.e. before 15.3.2003 when the amendment was made to Section 2(1)(d)(ii).
8. Shri Sidharth Bhatnagar, learned Counsel appearing on behalf of the respondent could not dispute this proposition and fairly accepted that the complaint was in fact filed on 26.6.2003 i.e. much after the amendment to Section 2(1)(d)(ii), by which the following words were added:First Appeal No.348 of 2012. 10
but does not include a person who avails of such services for any commercial purpose."
19. In the present case, the complaint was filed by the appellant on 25.8.2011 i.e. after the amendment in Section 2(1)(d)(ii) had come into force with effect from 15.3.2003. Therefore, it has to be considered in the context of amended provision whether the electric connection was taken by the appellant for commercial purpose and whether the appellant was a consumer of the respondents within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act.
20. Admittedly the appellant is running the Rice Sheller and the appellant had hired the services of the respondents for the supply of electric energy to the Rice Sheller of the appellant. Therefore the appellant had hired the services of the respondents for commercial purposes. Therefore, the appellant is not a consumer of the respondents within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986.
21. In view of the discussion held above, there is no merit in the present appeal and the same is dismissed in limine.
22. However, liberty is granted to the appellant to resort to any other remedy available to him under the law.
23. The time spent by the appellant from the date of filing of the complaint in the District Forum on 25.8.2011 till today shall not be counted towards limitation in view of the judgment of the Hon'ble Supreme Court reported as "Trai Foods Ltd. v. National Insurance Co. and others" (2004) 13 SCC 656.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
April 19, 2012 (BALDEV SINGH SEKHON)
Bansal MEMBER
First Appeal No.348 of 2012. 11