State Consumer Disputes Redressal Commission
M/S. Radhe Shyam Agrawal vs Ambuja Cement Ltd. & Anr. on 8 June, 2016
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miHkksDrk fookn Áfrrks"k.k vk;ksx] iaMjh] jk;iqj
vihy Øekad% FA/2016/101
lafLFkr fnukad: 30.03.2016
esllZ jk/ks';ke vxzoky]
ikVZuj⪫ vxzoky vk- Jh jk/ks';ke vxzoky]
irk&loksZn; uxj] ghjkiqj jksM]
N-x- ifCyd Ldwy ds ikl] VkVhca/k] jk;iqj]
Rkglhy o ftyk&jk;iqj ¼N-x-½ -----------------vihykFkhZ@ifjoknh-
fo:)
1- vacqtk lheasV]
Ikrk&ekr`Nk;k] jfouxj]
jk;iqj ¼N-x-½
2- vacqtk lhesaV fyfeVsM]
gsM vkWfQl] 4th, 5th, 6th ¶yksj]
bafMdkWe ohok fcfYMax] eqfDr oYMZ ds ihNs]
53 , yhyk jk;ljkuh]
dydRrk ¼ia- caxky½ [email protected]
le{k%
ekuuh; U;k;ewfrZ Jh vkj- ,l-'kekZ] v/;{k-
ekuuh;k lqJh fguk BDdj] lnL;k-
ekuuh; Jh Mh- ds- iksn~nkj] lnL;-
ekuuh; Jh ujsanz xqIrk] lnL;-
i{kdkjksa ds vf/koDrk
vihykFkhZ dh vksj ls Jh ds- vkuankuh] vf/koDrkA
mRrjoknhx.k dh vksj ls Jh ,e- ds- O;kl] vf/koDrkA
vkns'k
fnukad% 08@06@2016
}kjk%&ekuuh; U;k;ewfrZ Jh vkj- ,l- 'kekZ] v/;{k
vihykFkhZ@ifjoknh us ;g vihy /kkjk&15 miHkksDrk laj{k.k
vf/kfu;e] 1986] ds varxZr ftyk miHkksDrk fookn izfrrks"k.k Qksje]
jk;iqj ¼N-x-½ ¼ftls vkxs laf{kIr esa **ftyk Qksje** lacksf/kr fd;k
tk,xk½ ds ifjokn izdj.k dzekad&581@2011 esllZ jk/ks';ke vxzoky
// 2 //
ikVZuj lat; vxzoky fo:} vacqtk lhesaV fyfeVsM ,oa ,d vU; esa
ikfjr vkns'k fnukad&05-02-2016 ftlds }kjk vihykFkhZ@ifjoknh ds
ifjokn dks fujLr fd;k x;k gS] ls nqf[kr gksdj izLrqr fd;k gSA
02- ftyk Qksje ds le{k vihykFkhZ@ifjoknh dk ifjokn laf{kIr esa
bl izdkj jgk gS fd vihykFkhZ@ifjoknh ty la'kk/ku foHkkx ,oa yksd
deZ foHkkx dk ,&5 Js.kh dk iathd`r Bsdsnkj gS rFkk vkosnd QeZ dk
ikVZuj lat; vxzoky flfoy bathfu;j gSA vihykFkhZ@ifjoknh mijksDr
laLFkkukas ls izkIr fufonkvksa ds rgr flfoy odZ djrk gS ftlds fy,
vihykFkhZ@ifjoknh dks lhesaV dh vko';drk gksrh gSA
vihykFkhZ@ifjoknh }kjk fnukad&17-01-2011 dks 1000 fefVªd Vu
¼20]000 cSx½ lheasV [kjhnus gsrq [email protected] dks
178@&¼,d lkS vBgRrj :Ik;s½ izfr cSx dh nj ls vkMZj fn;k vkSj bl
gsrq ,Mokal crkSj 20]00]000@&¼chl yk[k :Ik;s½ dk psd
dzekad&961865 fnukad&17-01-2011 dks [email protected] dks
iznku fd;k x;k vkSj 'ks"k jkf'k lhesaV vkiwfrZ ij fn;k tkuk FkkA
vihykFkhZ@ifjoknh dks vius dk;Z gsrq lhesaV dh rRdky vko';drk Fkh
bl dkj.k ;g Li"V dj fn;k x;k Fkk fd lhesaV dh vkiwfrZ fnukad&31-
01-2011 rd gks tkuh pkfg,A vihykFkhZ@ifjoknh }kjk iwoZ esa Hkh
[email protected] ls lhesaV dz; fd;k x;k Fkk vkSj tc Hkh
lhesaV dz; fd;k tkrk Fkk rc vihykFkhZ@ifjoknh }kjk lheasV gsrq
,Mokal jkf'k fn;k tkrk Fkk rFkk [email protected] }kjk lhesaV
dh vkiwfrZ fd;k tkrk FkkA [email protected] }kjk fn, x,
vkMZj fnukad&17-01-2011 ds vuqlkj 23 tuojh 2011 ls 31 tuojh
2011 ds e/; 6]460 cSx lhesaV dh vkiwfrZ vihykFkhZ@ifjoknh dks fd;k
x;kA vihykFkhZ@ifjoknh }kjk 'ks"k 13540 cSx lhesaV vkiwfrZ gsrq
[email protected] ls dbZ ckj ekSf[kd ,oa VsyhQksfud vkxzg
fd;k x;k ijUrq [email protected] }kjk gj ckj flQZ 'kh?kz
// 3 //
vkiwfrZ djus dh ckr dgh tkrh jgh ijUrq lhesaV dh vkiwfrZ ugha dh xbZ]
bl chp lhesaV dh dherksa esa rsth Hkh vk xbZA pwafd
[email protected] }kjk iwoZ esa gh ,Mokal ysdj vkMZj cqd
fd;k x;k Fkk bl dkj.k [email protected] dks vkMZj esa
mYysf[kr nj ls lheasV vkiwfrZ fd;k tkuk Fkk ysfdu
[email protected] }kjk tku&cw>dj O;kolkf;d dnkpj.k
djrs gq, Lo;a dks ykHkkfUor djus ds fy, vkMZj vuqlkj lhesaV dh
vkiwfrZ ugha dh xbZ tcfd vihykFkhZ@ifjoknh dks vius dk;Z gsrq lhesaV
dh l[r vko';drk Fkh vkSj vihykFkhZ@ifjoknh }kjk ftl dk;Z dh
iwfrZ gsrq lhesaV [kjhnk tk jgk Fkk og dk;Z Hkh le; ij lhesaV ds vHkko
esa iw.kZ ugha gks ik;k ftlls vihykFkhZ@ifjoknh dks vR;f/kd vkfFkZd {kfr
dk lkeuk djuk iM+k ,oa Nfo Hkh /kwfey gks xbZ ftlds dkj.k
vihykFkhZ@ifjoknh dks vR;f/kd ekufld ijs'kkfu;ksa dk lkeuk djuk
iM+k ftldh tokcnkjh ,d ek= [email protected] ij gSA
vihykFkhZ@ifjoknh dks le; ij lhesaV vkiwfrZ u fd;s tkus ds dkj.k
vihykFkhZ@ifjoknh }kjk vU; daifu;ksa ls c<+h gqbZ nj ij izfr cSx
230@&¼nks lkS rhl :Ik;s½ dh nj ls lhesaV [kjhndj ,su&dsu&izdkjs.k
vius dk;Z dks iwjk fd;k x;k ftlds dkj.k vihykFkhZ@ifjoknh dks
52@&¼ckou :Ik;s½ izfr cSx vf/kd nj ds fglkc ls 13540 cSx lhesaV
dk 7]04]080@&¼lkr yk[k pkj gtkj vLlh :Ik;s½ dh vkfFkZd gkfu
mBkuh iM+hA [email protected] }kjk vihykFkhZ@ifjoknh dks
'ks"k cph 13540 cSx lheasV dh vkiwfrZ ugha fd;k x;k rc
vihykFkhZ@ifjoknh }kjk [email protected] ls fuosnu fd;k
x;k fd vkids }kjk lheasV dh vkiwfrZ le; ij ugha fd;k x;k rc mDr
gsrq nh xbZ ,Mokal jkf'k esa ls cpr jkf'k okil dj nh tkos] bl gsrq
vusdksa ckj VsyhQksfud ,oa ekSf[kd fuosnu fd;k x;k rFkk bZ&esy Hkh
fd;k x;k ysfdu [email protected] }kjk ,Mokal jkf'k 'kh?kz
okil dj fn, tkus dk vk'oklu fn;k x;k ijUrq okil ugha fd;k x;k
// 4 //
vkSj tku&cw>dj jksddj j[kk x;k ftlls vihykFkhZ@ifjoknh dks
vkfFkZd ,oa ekufld ijs'kkfu;ksa dk lkeuk djuk iM+kA
[email protected] }kjk fnukad&04-05-2011 dks vius jk;iqj
fLFkr dk;kZy; cqykdj cpr ,Mokal jde 8]50]120@&¼vkB yk[k
ipkl gtkj ,d lkS chl :Ik;s½ dk psd vihykFkhZ@ifjoknh ds izfrfuf/k
mes'k vxzoky dks iznku fd;k x;k vkSj mDr psd ij
[email protected] }kjk tku&cw>dj 19-04-2011 dh frfFk
vafdr fd;k x;k vkSj bl laca/k esa tc vihykFkhZ@ifjoknh }kjk iwNk
x;k fd 19-04-2011 dk psd yxHkx 15 fnu ckn fnukad&04-05-2011 dks
D;ksa fn;k tk jgk gS rks [email protected] }kjk bldk
Bhd&Bkd mRrj u nsdj xksy&eksy mRrj fn;k x;k vkSj ;g dgk x;k
fd ugha ysuk gS rks er yksA pwafd vihykFkhZ@ifjoknh]
[email protected] ds d`R;ksa ls ijs'kku Fkk vkSj mls jde dh
vko';drk Fkh bl dkj.k vihykFkhZ@ifjoknh }kjk mDr psd fnukad&04-
05-2011 dks izkIr dj fy;k x;kA bl izdkj [email protected]
}kjk ,Mokal jkf'k ysus ds Ik'pkr~ Hkh lhesaV dh vkiwfrZ u fd;k tkuk
rFkk vihykFkhZ@ifjoknh }kjk iznRr ,Mokal jkf'k okil ekaxus ij okil
u djds vius ikl vuko';d :Ik ls rhu ekg rd jksddj j[kk tkuk
fuf'pr :Ik ls lsok esa deh dh Js.kh esa vkrk gSA vr%
vihykFkhZ@ifjoknh dks ifjokn&i= esa of.kZr vuqlkj vuqrks"k fnykbZ
tkosA
03- [email protected] dh vksj ls ftyk Qksje ds le{k ;g
izkjafHkd vkifRr fd;k x;k gS fd vihykFkhZ@ifjoknh esllZ jk/ks';ke
vxzoky yksd fuekZ.kfoHkkx esa oxZ&5 ,oa ty la'kk/ku foHkkx esa iathd`r
dkaVsªDVj gS rFkk yksd deZ foHkkx vkfn laLFkkvksa ds }kjk tkjh fofHkUu
fuekZ.k laca/kh fufonkvksa dks Hkjdj fuekZ.k dk;Z djrs gSaA
vihykFkhZ@ifjoknh us Li"V rkSj ij ;g dFku fd;k gS fd mls vius
// 5 //
bl O;olk; esa mi;ksx gsrq lhesaV dh vko';drk gksrh gSA
vihykFkhZ@ifjoknh }kjk dz; dh tkus okyh lheasV dk mi;ksx vius
fuekZ.k O;olk; esa fd;k tkrk gSA vihykFkhZ@ifjoknh }kjk fd;s ykus
okys fuekZ.k esa mlds varxZr fofHkUu Jfed ;Fkk feL=h] dqyh] jstk
bR;kfn fu;ksftr fd, tkrs gSaA vihykFkhZ@ifjoknh }kjk cM+h ek=k esa
yxHkx 20]000 cksjh lhesaV mls vius O;olk; vFkkZr~ yksd deZ foHkkx ds
,&5 Js.kh ds iathd`r Bsdsnkj crkSj fd;s tkus okys Hkou fuekZ.k esa
mi;ksx djus gsrq vko';d Fkk ,oa blh mn~ns'; ls vihykFkhZ@ifjoknh
}kjk dz; vkns'k fn;k x;k FkkA bl izdkj [email protected]
ls vius Hkou fuekZ.k O;olk; gsrq lheasV dh vko';drk gksus ij dz;
vkns'k fn;k tkuk vihykFkhZ@ifjoknh ds O;kolkf;d mn~ns'; dh
ifjHkk"kk ds varxZr vkrk gSA [email protected] }kjk
vihykFkhZ@ifjoknh dks /kukns'k dzekad&153908 ,p- Mh- ,Q- lh- cSad
fnukad&19-04-2011 ds }kjk ,Mokal jkf'k 20]00]000@&¼chl yk[k :Ik;s½
esa ls fcfdzr lhesaV dh jkf'k lek;ksftr dj 'ks"k jkf'k&8]50]120@&¼vkB
yk[k ipkl gtkj ,d lkS chl :i;ss½ iznku dj nh xbZ gS rFkk
vihykFkhZ@ifjoknh ds [kkrs esa mDr jkf'k fnukad&05-05-2011 dks tek
Hkh gks pqdh gSA vr% vihykFkhZ@ifjoknh }kjk izLrqr ifjokn **foca/ku ds
fl}kar** ds vk/kkj ij Hkh izpyu ;ksX; ugha gSA vihykFkhZ@ifjoknh }kjk
dz; fd;s tkus okyh lhesaV dk mi;ksx O;kokf;d mn~ns'; ls gksus ds
dkj.k ,oa vihykFkhZ@ifjoknh miHkksDrk dh ifjHkk"kk esa ugha vkrk gS vkSj
bl izdkj ds laO;ogkj esa mRiUu fookn dk {ks=kf/kdkj Qksje dks ugha gSA
[email protected] }kjk ;g vfHkopu fd;k x;k gS fd
vihykFkhZ@ifjoknh ,d iathd`r Bsdsnkj gS rFkk vius fufonkvksa ds rgr
fd; tkus okyk fuekZ.k dk;Z ds fy, [email protected] ls
lhesaV dz; djrk jgk gSA vihykFkhZ@ifjoknh }kjk 1000 ehfVªd Vu
¼20]000 cksjh½ lhesaV [kjhnus gsrq ,d dz; vkns'k fn;k x;k Fkk ftldk
rRdkyhu ewY;&35]60]000@&¼iSarhl yk[k lkB gtkj :Ik;s½ gksrk gS
// 6 //
rFkk bl gsrq 20]00]000@&¼chl yk[k :Ik;s½ dk vfxze Hkqxrku Hkh fd;k
x;k FkkA vihykFkhZ@ifjoknh }kjk mlds mYysf[kr vyx&vyx fuekZ.k
dk;Z LFky [kV~Vh ¼jkfte½ rFkk lkadjk ¼ukxjh½ esa py jgs fuekZ.k esa
vko';drkuqlkj eky dh vyx&vyx ek=k esa rRdky fMyhojh fn,
tkus ckcr~ funsZf'kr fd;k x;k Fkk fdUrq dgha Hkh bl vkns'k esa fdlh Hkh
rjg dh fu/kkZfjr frfFk dk mYys[k ugha fd;k x;k FkkA
[email protected] }kjk dqy 6460 cksjh lhesaV dh vkiwfrZ
Rofjr :Ik ls dj nh xbZ rc vihykFkhZ@ifjoknh }kjk ekSf[kd :Ik ls
;g dgk x;k fd mls mlds }kjk funsZf'kr 02 fofHkUu LFky esa
le;≤ ij lhesaV dh vko';drk gksxh ,oa blh izdkj
vihykFkhZ@ifjoknh dh lqfo/kkuqlkj lhesaV dh vkiwfrZ dh tkos] tks fd
laHko ugha Fkk] ,slk vihykFkhZ@ifjoknh dks crk;k x;kA
[email protected] }kjk fdlh Hkh rjhds dk ekSf[kd ;k fyf[kr
esa ,slh dksbZ lgefr ugha nh xbZ Fkh fd mls iwjs 1000 ehfVªd Vu lhesaV
¼20]000 cSx½ 178@&¼,d lkS vBgRrj :Ik;s½ izfr cSx dh nj ls vkiwfrZ
dh tk,xhA vihykFkhZ@ifjoknh dks vU; daiuh ls fd, x, O;kolkf;d
O;ogkj esa gqbZ ykHk ;k gkfu ds fy, [email protected] fdlh
Hkh izdkj ls ftEesnkj ugha gSaA vihykFkhZ@ifjoknh }kjk dz; fd;k tkus
okyk lhesaV Hkfo"; esa lhesaV dh dherksa esa gksus okyh rsth dks /;ku esa
j[krs gq, fd;k tk jgk Fkk ftlls fd vihykFkhZ@ifjoknh vius Hkou
fuekZ.k O;olk; esa T;knk ls T;knk ykHkktZu dj ldsA 'ks"k lhesaV dh
vkiwfrZ ugha fd;s tkus ij cph gqbZ jde 8]50]120@&¼vkB yk[k ipkl
gtkj ,d lkS chl :i;s½ dk psd dzekad&153908 ,p- Mh- ,Q- lh- cSad
vihykFkhZ@ifjoknh dks okil dj fn;k x;k ftls fd mlds }kjk
Lohdkj dj fy;k x;k] vr% [email protected] dk ;g O;ogkj
mldh O;kikfjd ln~Hkkouk dks iznf'kZr djrk gS rFkk fdlh Hkh izdkj ls
O;kikfjd dnkpkj ugha ekuk tk ldrkA vihykFkhZ@ifjoknh }kjk vf/kd
dher esa lhesaV dz; djuk mldh O;kolkf;d uhfr;ksa ij fuHkZj djrk gS
// 7 //
ftl ij [email protected] dk dksbZ fu;a=.k ugha gSA
vihykFkhZ@ifjoknh }kjk le; ij dk;Z iwjk u gksus ls gqbZ {kfr dks fl}
djus dk Hkkj Lo;a ml ij gS rFkk bl gsrq [email protected]
dks fdlh Hkh izdkj ls ftEesnkj ugha Bgj;k tk ldrkA vr%
ifjokn&i= fujLr fd; tkosA
04- vihykFkhZ@ifjoknh dh vksj ls vius i{k leFkZu eas ftyk Qksje
ds le{k lIykbZ vkMZj fnukad&17-01-2011 (Annexure A-1)] VSDl
buokbZl fnukad&22-01-2011] 23-01-2011] 25-01-2011] 26-01-2011] 27-01-
2011] 28-01-2011] 29-01-2011 (Annexure A-2)] jkf'k fjQ.M ckcr~ i=
fnukad&29-04-2011 (Annexure A-3)] isesaV OgkÅpj (Annexure A-4)] psd
dzekad&153908 fnukad&19-04-2011 (Annexure A-5)] ckykth lsYl dk
fcy fnukad&09-03-2011] 10-03-2011] 11-03-2011] 25-03-2011 ,oa 29-03-
2011 (Annexure A-6) rFkk bZ&esy (Annexure A-7 to A-12) dh QksVks
dkih izLrqr fd;k gSA
05- [email protected] dh vksj ls vius i{k leFkZu easa ftyk
Qksje ds le{k Lis'ky ikWoj vkWQ ,VkWuhZ fnukad&20-11-2006]
vihykFkhZ@ifjoknh }kjk [email protected] dks izsf"kr i= ,oa
fMDysjs'ku fnukad&21-10-2010] vihykFkhZ@ifjoknh }kjk
[email protected] dks izsf"kr i= fnukad&02-12-2010 rFkk
jk/ks';ke vxzoky dk LVsVesaV vkWQ ,dkÅ.V dh QksVks dkih izLrqr fd;k
gSA
06- ftyk Qksje us mHk;{k }kjk izLrqr vfHkopu ,oa nLRkkosth lk{;
ds ifj'khyu ds Ik'pkr~ vihykFkhZ@ifjoknh ds ifjokn dks fujLr fd;k
gS] ftlds fo:}+ ;g vihy gSA
// 8 //
07- vihykFkhZ@ifjoknh dh vksj ls milatkr gksus okys fo}ku
vf/koDrk Jh ds- vkuankuh dk ;g rdZ gS fd ftyk Qksje dk vkns'k
=qfViw.kZ gSA vihykFkhZ@ifjoknh tks fd ,d flfoy bathfu;j gS ,oa ty
lalk/ku foHkkx rFkk yksd deZ foHkkx dk Bsdsnkj gS vkSj vius
thfodksiktZu ds fy, [email protected] ls lhesaV dz; fd;k
FkkA mDr lheasV iqu% fodz; ds fy, ugha Fkk vfirq fuekZ.k dk;Z esa mldk
mi;ksx fd;k tkuk Fkk vkSj ukWu VsªM lhesaV lIykbZ vkMZj fn;k x;k Fkk
vkSj tks fd ukWu VsªsfMax gsrq Fkk vkSj Li"V gS fd vihykFkhZ@ifjoknh }kjk
O;kolkf;d mn~ns'; gsrq lheasV dz; fd;k x;k Fkk ijUrq ftyk Qksje us
=qfViw.kZ :Ik ls ;g fu/kkZfjr djrs gq, fd vihykFkhZ@ifjoknh O;kolkf;d
iz;kstu ds fy, lheasV dz; fd;k gS vkSj vihykFkhZ@ifjoknh dks
miHkksDrk laj{k.k vf/kfu;e] 1986] dh /kkjk&2 ¼1½ ¼Mh½ ds varxZr
**miHkksDrk** u ekudj ifjokn fujLr fd;k gS tks fd iw.kZr% =qfViw.kZ gSA
Bsdsnkjh dk dk;Z vihykFkhZ@ifjoknh dk O;olk; gS u fd O;kikj gS vkSj
mlds thfodksiktZu dk lk/ku gS vkSj ,slh fLFkfr esa vihykFkhZ@ifjoknh
**miHkksDrk** gSA ftyk Qksje dk vkns'k =qfViw.kZ gS vkSj fujLrh ;ksX; gSA
vr% vihykFkhZ@ifjoknh dh vihy Lohdkj fd;k tkos vkSj ftyk Qksje
}kjk ikfjr vkyksP; vkns'k vikLr fd;k tkosA vihykFkhZ@ifjoknh dh
vksj ls bl laca/k esa Skipper Towers Pvt. Ltd. Vs. A. P. Gupta of 2 Ors.
1995 (2) CPR 592 (NC), Rajesh Mahana Vs. M/s. Auto Controls (P) Ltd.
1995 (1) CPR 96 (State Commission New Delhi) rFkk Karnataka Power
Transmission Corpn. & Anr. Vs. Ashok Iron Works Pvt. Ltd. 2009 (1)
CPR 211 (SC) ds U;k; n`"Vkar dk voyacu fy;k gSA
08- [email protected] dh vksj ls milatkr gksus okys fo}ku
vf/koDrk Jh ,e- ds- O;kl dk ;g rdZ gS fd ftyk Qksje dk vkns'k
fof/k lEer vkns'k gS] mlesa fdlh izdkj dh vfu;ferrk ,oa
voS/kkfudrk ugha gSA vihykFkhZ@ifjoknh us 1000 fefVªd Vu ¼yxHkx
// 9 //
20]000 cksjh½ lhesaV [kjhnus dk vkns'k iznku fd;k Fkk vkSj
20]00]000@&¼chl yk[k :Ik;s½ dk Hkqxrku Hkh fd;k FkkA mDr lhesaV
esllZ jk/ks';ke vxzoky dh vksj ls mlds Hkkxhnkj lat; vxzoky }kjk
dz; fd;k x;k Fkk vkSj vR;f/kd rknkn esa lheasV dks dz; djuk bl ckr
dk |ksrd gS fd mls O;kolkf;d mi;ksx ds fy, yk;k tkrkA
vihykFkhZ@ifjoknh ,&5 Js.kh dk iathd`r Bsdsnkj gS vkSj Hkou fuekZ.k
dk dk;Z djrk gS vkSj Hkou fuekZ.k mi;ksx gsrq lhesaV dh vko';drk Fkh
tks fd fuf'pr gh ykHk vftZr djus ds fy, gSA pwafd es- jk/ks';ke
vxzoky ,d Hkkxhnkjh laLFkku gS vkSj ftldk fd lat; vxzoky tks
ifjokn izdj.k dzekad&580@2011 esa ifjoknh gS] bl laLFkku dk
Hkkxhnkj gS vkSj ,&5 Js.kh dk iathd`r Bsdsnkj gS tks bl ckr dk |ksrd
gS fd vihykFkhZ@ifjoknh ykHk vftZr djus ds fy, ,oa Bsdsnkjh dk
dk;Z djus ds fy, lhesaV dz; fd;k Fkk rFkk vihykFkhZ@ifjoknh us dgha
Hkh ;g vfHkopu ugha fd;k gS fd og Lo;a ds thfodksiktZu ds fy,
lhesaV dks dz; fd;k gS vkSj ,slh fLFkfr esa ;g Li"V gS fd
vihykFkhZ@ifjoknh lhesaV dk mi;ksx O;kolkf;d iz;kstu ds fy, djrk
gS vkSj blfy, vihykFkhZ@ifjoknh **miHkksDrk** ugha gS vkSj ftyk Qksje
us tks vkns'k ikfjr fd;k gS og iw.kZr% mfpr gS] mlesa fdlh izdkj ds
gLr{ksi dh vko';drk ugha gSA vr% vihykFkhZ@ifjoknh dh vihy
fujLr fd;k tkosA [email protected] dh vksj ls bl laca/k esa
Puran Murti Education Society Vs. UHBVNL I (2013) CPJ 40 (NC),
Rohit Chemical and Allied Industries Pvt. Ltd. IV (2013) CPJ 87 (NC)
rFkk Biilagi Sugar Mill Ltd. Vs. Kessels Engineering Works (P) Ltd. II
(2010) CPJ 242 (NC) ds U;k; n`"Vkar dk voyacu fy;k gSA
09- geus mHk;i{k ds fo}ku vf/koDrkx.k dk rdZ Jo.k fd;k rFkk
ftyk Qksje ds vfHkys[k ,oa vkyksP; vkns'k dk Hkh ifj'khyu fd;k
x;kA
// 10 //
10- vihykFkhZ@ifjoknh us vius ifjokn&i= dh dafMdk&2 esa ;g
vfHkopu fd;k gS fd **vkosnd ds Hkkxhnkj lat; vxzoky ty lalk/ku
foHkkx ,oa yksd deZ foHkkx dk ,&5 Js.kh dk iathd`r Bsdsnkj gS rFkk
vkosnd QeZ dk ikVZuj lat; vxzoky flfoy bathfu;j gSA vkosnd
mijksDr laLFkkuksa ls izkIr fufonkvksa ds rgr flfoy odZ djrk gS ftlds
fy, vkosnd dks lhesaV dh vko';drk gksrh gSA vkosnd }kjk fofHkUu
daifu;ksa ls rFkk vukosnd daiuh ls Hkh vius dk;Z gsrq lhesaV dz; fd;k
tkrk gSA** vihykFkhZ@ifjoknh us vius ifjokn&i= esa dgha Hkh ;g
vfHkopu ugha fd;k gS fd og Lo;a ds ;k vius ifjokj ds thfodksiktZu
gsrq mDr lhesaV dz; fd;k gS vfirq ifjokn&i= ds ifj'khyu ls Li"V gS
fd vihykFkhZ@ifjoknh esllZ jk/ks';ke vxzoky ,d Hkkxhnkjh laLFkku gS
ftldk fd lat; vxzoky Hkkxhnkj gS vkSj Lo;a bathfu;j gS vkSj fuekZ.k
dk;Z djus ds fy, gh lhesaV dz; djrk gS vkSj tks fuf'pr gh
O;kolkf;d ykHk ds fy, gSA
11- vihykFkhZ@ifjoknh Bsdsnkj gS vkSj Bsdsnkjh dk dk;Z djrk gS vkSj
vihykFkhZ@ifjoknh }kjk tks lhesaV dz; djus dk vkns'k fn;k x;k gS og
O;kolkf;d iz;kstu ds fy, gSA
12- Mrs. Vinodini Bajpai Vs. Rajya Krishak Utpadan Mandi
Parishad, Lucknow 1992 (1) CPR 10 (NC) esa ekuuh; jk"Vªh; vk;ksx }kjk
vkns'k dh dafMdk&3 esa ;g fu/kkZfjr fd;k x;k gS fd%&
"3. .......... The acceptance of a tender undoubtedly creates a
contractual relationship. But the contractor who was undertaken to
perform a work of construction cannot, by any stretch of reasoning, be
regarded as a person who has entered into an arrangement of hiring
of service with the other party merely on the ground that under the
contract there is an obligation on the part of the said party to supply
// 11 //
certain materials such as cement etc. and also to ultimately pay the
charged found due for the execution of the work. We are in full
agreement with the view expressed by the State Commission that the
appellant who was the complainant does not fall within any part of the
definition of 'consumer' contained in clause 2 (1) (d) (i) of the Act. The
complaint preferred by her was there for rightly dismissed on the
ground that it was not maintainable under the Act."
13- Satish Chander Gupta and Sons Vs. Klick Nixon Limited & Anr.
III (2010) CPJ 438 (NC) esa ekuuh; jk"Vªh; vk;ksx }kjk vkns'k dh
dafMdk&12 esa ;g fu/kkZfjr fd;k x;k gS fd%&
"12. In the present case, the petitioner was an Assistant Engineer
with Punjab Irrigation Department and left his job to work as a
Builder. According to him, he was self-employed person and was
earning his livelihood from that profession. He had purchased the
goods for self-employment and not for a commercial purpose. We do
not find any substance in this submission. Petitioner is as a Builder
and has executed. Civil construction works for the last 35 years with
various Government Departments, i.e., Military Engineering Services,
Indian Telephone Industries Limited, etc. He has got the work
executed through mistries and labourers and cannot be termed as self-
employed person who works with his own hands to earn his livelihood
. In the present case, the petitioner was entrusted with the work of
construction of a single seater Hostel of 500 rooms at a cost of Rs. 2.5
crores. Respondent cannot be termed to be a self-employed person
working with his own hands to earn his livelihood and, therefore, could not be held to ba a 'consumer' within the meaning of Section 2 (1) (d) of the Act."
14- Birla Technologies Limited v. Neutral Glass and Allied Industries Limited, (2011) 1 Supreme Court Cases 525, esa ekuuh;
loksZPp U;k;ky; }kjk ;g fu/kkZfjr fd;k x;k gS fd%& // 12 // "7. By its order dated 4.3.2004, the State Commission accepted the appellant's preliminary objection and dismissed the complaint. The respondent complainant, therefore filed First Appeal No.218 of 2004 before the National Commission. By its order dated 17.12.2009, which is impugned here, the National Commission reversed the order of the State Commission and held that the "goods" purchased by the respondent from the appellant were being used by the respondent for a commercial purpose and, therefore, the respondent was not a "consumer" within the meaning of Section 2(1)(d)(i) of the Act. However, the National Commission further held that notwithstanding such findings, the respondent was entitled to maintain a complaint under the Act with respect to the deficiency in service during one-year warranty period with respect to the said goods relying on Section 2(1)(d)(ii) of the Act.
10. Shri Siddharth 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)(ii), by which the following words were added :
"but does not include a person who avails of such services for any commercial purpose".
11. In view of the findings of the National Commission that the goods sold by the appellant to the respondent complainant amounted to "goods" and that such goods were purchased for commercial purpose for earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary.
12. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view it has to be held that the complaint itself was not maintainable, // 13 // firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15-3-2003 by way of the amendment by the same Amendment Act, as it is nobody's case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent's livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto."
15. Rajeev Metal Works and Others v. Mineral & Metal Trading Corporation of India Ltd., (1996) 9 Supreme Court Cases 422, esa ekuuh; loksZPp U;k;ky; }kjk ;g fu/kkZfjr fd;k x;k gS fd%& "6. Having given our anxious and very careful consideration to the respective contentions, the question emerges whether the appellant firm is a consumer. The word 'consumer' has been defined under Section 2(1)(d)(i) and (ii) thus :
"(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 obtain such goods for resale or for any commercial purpose; or // 14 //
(ii) hires 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 hires or avails of the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person."
7. Clause (i) provides that one who 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 promise, 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, is a consumer. The admitted case is that this does not apply. The question, therefore, is whether the service of the respondent availed by the appellants is covered under Section 2(1)(d)(ii)? Whether the transaction in the nature of buying the goods for a consideration which has been paid or promised? Whether the transaction in question excludes the person who obtains such goods for resale or for any commercial purpose from the purview of the Act? It is true as contended for the appellants that the definition requires to be interpreted broadly so as to give effect to the legislative intention envisaged under the Act. But when the legislature having defined the term 'consumer' in broader terms, sought to exclude certain transactions from the purview of the Act what could be the meaning that would be assigned to the exclusionary clause, viz., "but does not include a person who obtains such goods for resale or for any commercial purpose". The intention appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose // 15 // or for resale, the object of the Act appears to be to exclude such commercial transactions from the purview of the Act. Instead, legislature intended to confine the redressal to the services contracted or undertaken between the seller and the 'consumer' defined under the Act. It is seen that the appellants admittedly entered their letters of credit with the respondent. The respondent is a statutory authority to act as canalised agency on behalf of the industries to procure required goods on their behalf from the foreign seller and acts in that behalf in terms of the letter of credit and conditions enumerated thereunder. It is seen that the respondent did not undertake any direct responsibility for supply or liability for non-supply of the goods. On the other hand, the appellants had solicited to have the goods supplied to it through the respondent and opened letter of credit in favour of the respondent. After collecting requirement from various industries in the country admittedly a consolidated demand for supply of the required quantity of the G.P. Sheets was indented with foreign sellers so as to procure the required goods for onward supply to the appellant and others. The goods supplied were required for commercial purpose, i.e., for manufacture and resale as finished goods during the course of their commercial business. Under the circumstances, the appellants intended to purchase these goods for commercial purpose, namely to manufacture the tin sheets for resale. It is true that the word 'resale' used in the exclusionary clause of Section 2(1)(d) (i) was used in connection with the purchase of goods defined in the Sale of Goods Act for commercial purpose The ultimate object of the supply of the goods, namely, G.P. sheets to the appellants was manufacture of finished goods for resale. The goods were intended to be used for commercial purpose. Thus, considered, we are of the opinion that the appellants are not consumers by virtue of the exclusionary clause under Section 2(1)(d)(ii). Therefore, they would not come under Section 2(1)(d)(ii) of the Act. Since the object of the supply and purchase of the goods was commercial purpose, it would certainly come within the // 16 // exclusionary clause of Section 2(1)(d)(ii). Otherwise, if the construction sought to be put up by Mr. Sanghi is given effect to, while foreign sellers are not liable under the Act within the definition of Section 2(1)(d) as they get excluded from the purview of the Act, the canalising agency would be fastened with the liability. Thereby, the definition of the word 'consumer' under Section 2(1)(d)(ii) is not attracted.
8. Consequentially, clause (ii) of Section 2(1)(d) does not apply. Considered from this perspective, we are of the opinion that the appellants are not consumer under Section 2(1)(d)(ii) of the Act. Thereby the complaint would not lie under Section 21 of the Act."
16. Kurji Holy Family Hospital v. Boehringer Mannheim India Ltd. & Ors., III (2007) CPJ 371 (NC), esa ekuuh; jk"Vªh; vk;ksx }kjk ;g fu/kkZfjr fd;k x;k gS fd%& "23. Dealing with the similar terms of the sale agreement, in the case of Indochem Electronic & Anr. v. Additional Collector of Customs, A.P., II (2006) SLT 658 = I (2006) CPJ 1 (SC) = (2006) 3 SCC 721, the Apex Court held as under :-
"22. The deficiencies in EPABX system supplied by the appellants were such as were required to be attended to immediately. If the appellants had not been able to attend thereto immediately, there would be a 'deficiency of services' on the part of the appellants as immediate attention to such complaints was part of the contract.
23. The State Commission as well as the National Commission have arrived at findings of fact as regards nature of deficiencies of service complained of by the respondent in terms of the provisions of the contract. If such breaches of conditions of warranty admittedly had taken place during the // 17 // period of warranty, no exception can be taken to the judgment and order passed by the State Commission as also the National Commission.
24. The appellant had all along been aware that the system installed by it had not been functioning properly. On its own showing, it had been attending to the complaints made by the respondent relating to the functioning of the system. It has categorically been stated by the appellant itself that despite expiry of the period of warranty it had been attending to the complaints as and when made by the respondent which were of serious nature.
24. Similar is the position in the present case. Admittedly, the 'Swelab' was not functioning since the initial stage. Therefore, the respondents replaced it by another 'Swelab'. That also was not functioning despite its being repaired by the respondents' mechanics on a number of occasions. And, in such cases it would be a deficiency in service as defined in Section 2(1)(g) of the Consumer Protection Act, 1986. It is also to be stated that the Swelab Auto Counter AC 920-11 Haematology Analyzer cannot be used by the hospital, if it is defective or not functioning properly, because in such case, the pathological reports will be inaccurate which will have adverse effect on diagnosis and treatment."
17. JCB India Ltd. Vs. Mallappa Sangappa Mantri & Anr., IV (2012) CPJ 220 (NC)., esa ekuuh; jk"Vªh; vk;ksx }kjk ;g fu/kkZfjr fd;k x;k gS fd%& "6. We have no manner of doubt in holding that the aforesaid observations of the State Commission based on which the impugned order was passed were not only contrary to the facts on record but against the settled law in this regard and hence the impugned order // 18 // cannot be sustained. The reliance of the State Commission on the decision rendered by the National Commission in the case of Dr. Vijay Prakash Goyal v. The Network Ltd., IV (2005) CPJ 206 (NC) = 2006 (1) CPR 164 (NC), is ill-placed since the present dispute has arisen after the amendment of Section 2(1)(d)(i) containing definition of a consumer w.e.f. 15.3.2003. Keeping in view the admitted position emanating from the complaint itself and other aspects of this case, we are convinced that the machine was being used by the complainant for earning profits and hence for commercial purposes by employing a number of people and we do not find any denial to these facts buy the complainant anywhere on record. In the circumstances, as already held by this Commission in the cases cited by the Counsel, we are of the considered view that when a customer buys goods for commercial purposes and avails of services attached to the goods in the nature of warranty, he cannot be considered to be consumer even for the purpose 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. In view of this, the complainant / respondent No.1 cannot be held to be a consumer and hence the complaint in question is not maintainable before any Consumer Forum. Consequently, the revision petition stands allowed and the impugned order is set aside and complaint is dismissed with no order as to costs. Liberty, however, is granted to the respondent No.1/complainant to approach appropriate Forum for redressal of his grievance and in case he chooses to do so, he can claim the benefit of Section 14 of the Limitation for the time spent before the Consumer Fora in accordance with the ruling given by the Apex Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583."
// 19 //
18. Kishore Ramchandra Bhide v. Habibat India Agro Development Pvt. Ltd. & Ors., IV (2012) CPJ 706 (NC), esa ekuuh;
jk"Vªh; vk;ksx }kjk ;g fu/kkZfjr fd;k x;k gS fd%& "7. The Supreme Court has discussed the term 'consumer' in the celebrated authority reported in Laxmi Engineering Works v PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 3 SCC 583, wherein it was held :
"The National Commission appears to have been taken 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 profit', he will not be a 'consumer' within the meaning of Section 2(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 - Parliament stepped in and added the explanation to Section 2(1)(d) 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 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 // 20 // 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 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 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".
A person cannot be said to be consumer if he purchases the second house."
19. Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., (Supra) esa ekuuh; jk"Vªh; vk;ksx }kjk ;g fu/kkZfjr fd;k x;k gS fd%& "3. From the facts narrated in the complaint, it is clear that the Turbine (T.G. Set) in question had been purchased by the complainant for commercial purpose and, purchase for commercial purpose is excluded under Section 2(1)(d)(i) of the C.P. Act. Likewise, the services of the warranty for commercial purpose are also excluded for // 21 // commercial purpose under Section 2(1)(d)(ii) w.e.f. 15.3.2003. A Division Bench of this Commission to which one of us (R.K. Batta, J) was a party has after scrutiny of a large number of judgments, which actually pertain to the pre-amendment period i.e. before 15.3.2003, in Meera Industries v. Modern Constructions, R.P. No.1765 of 2007 decided on 22.5.2009, wherein it was held :
"In view of the above, we are of the opinion that whether a customer buys goods for commercial purpose and avails of services attached to the goods in the nature of warranty, he cannot be considered to be a consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(d)(ii) of the Act, which came into force w.e.f. 15.3.2003. In view of this, the complainant cannot be held to be a consumer with reference to the services attached to the warranty and the complaint is not maintainable".
20. Sanjay D. Ghodawat v. R.R.B. Energy Ltd., IV (2010) CPJ 178 (NC), esa ekuuh; jk"Vªh; vk;ksx }kjk ;g fu/kkZfjr fd;k x;k gS fd%& "21. In the complaint it was contended that the complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, since the complainant had engaged and availed the services of OP for providing software. The main prayer in the complaint was seeking directions to the OP to rectify the defects in the services to provide 7 modules (software system). It was only in the alternative that refund of the entire consideration was sought with interest. In the complaint, the complainant had alleged that contract with OP was entered into on 1.6.1998 pursuant to which, the software was to be developed in 15 months from 1st April, 1998 till 30th July, 1999. The complainant had also pleaded that the OP had agreed to provide one year warranty from the final date of installation for one year and annual maintenance. The complainant noted defects in the // 22 // modules as also shortcomings in OP's services during the warranty period in the year 2000. The grievance of the complainant is that the services during the warranty period were not provided and the defects were not rectified. Hence, complaint was filed on 1.8.2000. Prior to the amendment Section 2(1)(d)(ii) by Amendment Act, 2002 a person hiring or availing services for consideration was not excluded even though the services were availed for any commercial purpose. Therefore, in this case, if there was any deficiency in service during the warranty period, the complaint could be maintained before the Consumer Forum for the said purpose. Accordingly, insofar as defects in service during the warranty period are concerned, the case is governed and covered by the judgments of this Commission relating to the pre-amendment period, which has been referred to in Meera Industries, Howrah v. Modern Constructions, Howrah (supra). Therefore, the complaint in F.A. No.218/04 with respect to the deficiency of service during the warranty period is maintainable and appeal to that extent is allowed and the order of the State Commission to that extent is modified with no order as to costs."
21. M/s Rohit Chemical & Allied Industries Pvt. Ltd. National Research Development Corporation (Supra) esa ekuuh; jk"Vªh; vk;ksx }kjk ;g fu/kkZfjr fd;k x;k gS fd%& "22. In Laxmi Engineering Works v. P.S.G. Industrial Institute, AIR 1995 SC 1428, it was held :-
"12. Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the // 23 // approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression 'resale' is clear enough. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. 'Commercial' denotes "pertaining to commerce" (Chamber's Twentieth Century); it means "connected with, or engaged in commerce; mercantile; having profit as the main aim" (Collins English Dictionary) whereas the word 'commerce' means "financial transactions especially buying and selling of merchandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taken 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 profit', he will not be a 'consumer' within the meaning of Section 2(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 - Parliament stepped in and added the explanation to Section 2(1)(d) 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 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 // 24 // 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 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 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. This is necessary limitation flowing from the expressions "used by him" and "by means of self-employment in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words".
// 25 // 22- Cheema Engineering Services vs. Rajan Singh (1997) 1 Supreme Court Cases 131, esa ekuuh; loksZP; U;k;ky; }kjk ;g fu/kkZfjr fd;k x;k gS fd%& "6. In other words, the Explanation excludes from the ambit of commercial purpose in sub-clause (1) of Section 2(1)(d), any goods purchased by a 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. The question, therefore, is whether the respondent has been using the aforesaid machine for self-employment? The word "self- employment" is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self- employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but "merely earning livelihood in commercial business", does not mean that it is not for commercial purpose. Self- employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. 'He' includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self- employment and that, therefore, it is not a commercial purpose. The orders of all Tribunals stand set aside. The matter is remitted back to the District Forum. The District Forum is directed to record the evidence of the parties and dispose of it in accordance with law within a period of six months from the date of the receipt of this order."
// 26 // 23- ifjokn&i= ds ifj'khyu ls Li"V gS fd vihykFkhZ@ifjoknh }kjk tks flfoy odZ ds fy, Bsdk fy;k x;k gS vkSj ftlds rgr fuekZ.k dk;Z fd;k tkrk gS] mlh fuekZ.k gsrq lhesaV dz; djus gsrq [email protected] dks vkns'k fn;k Fkk vkSj jkf'k dk Hkqxrku fd;k Fkk vkSj pwafd vihykFkhZ@ifjoknh ,d Hkkxhnkjh laLFkku gS ftldk fd lat; vxzoky Hkkxhnkj gS vkSj mlds }kjk fuekZ.k dk;Z esa Jfed] feL=h] dqyh] jstk vkfn fu;ksftr fd;s tkrs gksaxs vkSj muds ek/;e ls dk;Z fy;k tkrk gksxk vkSj ,slh fLFkfr esa fuf'pr gh vihykFkhZ@ifjoknh mDr dkexkjksa dks Hkqxrku djrk gksxk vkSj pwafd vihykFkhZ@ifjoknh lat; vxzoky esllZ jk/ks';ke vxzoky tks QeZ gS] dk Hkkxhnkj gS vkSj ml QeZ ds fy, gh lhesaV dz; fd;s tkus dk vkns'k fn;k x;k FkkA bl lc ifjfLFkfr;ksa dks ns[krs gq, ekuk tkosxk fd vihykFkhZ@ifjoknh us O;kolkf;d iz;kstu ds fy, gh [email protected] ls lheasaV dz; djus dk vuqca/k fd;k Fkk vkSj bl izdkj tks vihykFkhZ@ifjoknh vkSj [email protected] ds e/; tks fookn gS] og **miHkksDrk fookn** ugha gS vkSj vihykFkhZ@ifjoknh **miHkksDrk** dh Js.kh esa ugha vkrk gS vkSj pwWafd vihykFkhZ@ifjoknh /kkjk&2 ¼1½ ¼Mh½ miHkksDrk laj{k.k vf/kfu;e] 1986] ds varxZr **miHkksDrk** ugha gSA ,slh fLFkfr esa vihykFkhZ@ifjoknh dk ifjokn la/kkj.kh; ugha gS vkSj vihykFkhZ@ifjoknh us ftu U;k; n`"Vkarksa dk voyacu fy;k gS mlds rF; bl izdj.k ds rF; ls iw.kZr% fHkUu gSa vkSj mldk ykHk bl izdj.k esa vihykFkhZ@ifjoknh dk ugha feyrk gSA 24- ftyk Qksje us tks ;g fu"d"kZ fudkyk gS fd vihykFkhZ@ifjoknh] miHkksDrk laj{k.k vf/kfu;e] 1986] dh /kkjk&2 ¼1½ ¼Mh½ ds varxZr **miHkksDrk** dh Js.kh esa ugha vkrk gS vkSj lhesaV dk **okf.kfT;d iz;kstu** ds fy, dz; fd;k tkuk ik;k tkrk gS] iw.kZr% mfpr gSA ftyk // 27 // Qksje dk mDr fu"d"kZ fdlh izdkj ls =qfViw.kZ ugha gS vkSj mlesa gLr{ksi dh vko';drk ugha gSA 25- vr% vihykFkhZ@ifjoknh dh vksj ls izLrqr vihy lkjghu gksus ls fujLr fd;k tkrk gSA ftyk Qksje }kjk ikfjr vkyksP; vkns'k fnukad&05-02-2016 dh iqf"V dh tkrh gSA izdj.k dh ifjfLFkfr dks ns[krs gq, bl vihy dk O;; i{kdkj viuk&viuk ogu djsaxsA ¼U;k;ewfrZ vkj-,l-'kekZ½ ¼lqJh fguk BDdj½ ¼Mh- ds- iksn~nkj½ ¼ujasnz xqIrk½ v/;{k lnL; lnL; lnL;
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