National Consumer Disputes Redressal
Brajbhushan Painkra vs Director, First House on 16 November, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 132 OF 2017 (Against the Order dated 07/10/2016 in Appeal No. 352/2016 of the State Commission Chhattisgarh) 1. BRAJBHUSHAN PAINKRA S/O. SHRI JAISINGH PAINKRA,R/O. SALES TAX COLONY, RAIPUR DISTRICT-RAIPUR CHHATTISGARH ...........Petitioner(s) Versus 1. DIRECTOR, FIRST HOUSE 25-A, BHANPURI INDUSTRIAL AREA, RAIPUR, DISTRICT-RAIPUR CHHATTISGARH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,PRESIDING MEMBER
FOR THE PETITIONER : MD. ANIS UR REHMAN, ADVOCATE FOR THE RESPONDENT : NEMO
Dated : 16 November 2023 ORDER
1. This revision petition has been filed under Section 21 (b) of the Act 1986 in challenge to the Order dated 07.10.2016 in Appeal No. 352 of 2016 of the State Commission Chhattisgarh arising out of Order dated 20.05.2016 of the District Commission in Complaint no. 06 of 2013.
2. Learned counsel for the petitioner is present.
None appears for the respondent even though it is duly represented by counsel. The petition is pending since 2017. There is no adjournment slip sent on behalf of the respondent nor anybody has appeared on behalf of the respondent. There does not appear any justification for further procrastinating the matter and it is deemed expedient to decide the matter on the basis of record.
3. The present petition has been filed with reported delay of 1 day. Considering the reasons mentioned in the application seeking condonation of delay and in order to decide the matter on its merits rather than dismissing it on the threshold of limitation, the said delay is condoned.
4. Heard the learned counsel appearing for the petitioner and perused the record including inter alia the Order dated 20.05.2016 of the District Commission, the impugned Order dated 07.10.2016 of the State Commission and the memo. of petition.
5. It has been argued by learned counsel that the appeal has been dismissed on the ground of maintainability alone and the merits of the case have not been considered, as learned State Commission was of the view that the transaction in question that took place between the petitioner and the respondent was for commercial purpose and hence the petitioner was not a consumer and the complaint did not relate to a consumer dispute. Learned counsel has drawn the attention of the Bench to the contents of the complaint wherein the purpose of purchase of the machine has been clearly mentioned that it was for self-employment. The submission is that even in matters where the purpose may be commercial but if the same is for the purpose of earning the livelihood by means of self-employment the same will be treated as an exception and the disability attached with the transaction relating to its commercial purpose shall not operate to consumer's detriment. Submission is that though the adverse finding has been recorded by the State Commission but the same finding is not well-substantiated by any convincing reasoning nor the same is based on any substantial factual basis. Contention is that, therefore, the impugned Order is not sustainable either on facts or on law. It has been argued that the matter, therefore, be remanded back to be decided on merits. It has been emphasized that there is nothing on record which may go to indicate that the enterprise in which the complainant was involved was not for self-employment or that it was not in order to earn his livelihood. It has also been emphasized that the contents of the complaint would amply demonstrate that the activity done by the complainant is on a very modest scale and it is by no means a large scale enterprise which may be said to have transgressed the bounds of activity for the purpose of self-employment in order to earn one's livelihood or which may not reasonably fall in the category of self-employment activity for the purpose of earning livelihood.
6. It may be relevant to mention, as is apparent form the reading of the Order passed by the District Commission that none had appeared on behalf of the respondent / opposite party before the District Commission and no written statement was filed in reply. The opposite party was, therefore, proceeded ex parte. The appeal has been primarily decided on the basis of arguments that were raised on behalf of counsel for opposite party.
7. In order to decide the controversy involved in the matter it would be apposite to quote the relevant portion of the complaint made by the petitioner:-
"2. That the complainant for his self employment has purchased one machine of bricks press machine on 05-01-2011 for the amount of Rs.1012620/- and after paying the payment delivery was taken on the same day by bill number 10-11/63 and delivery number was FH/10-11/68.
4. That the complainant has installed the said bricks press machine at his working place Gram Birkoni District Mahasamund Chhattisgarh.
5. That the complainant has installed the said bricks machine and has appointed five labour and one technical person for conducting the machine."
The complaint is part of the record and does not need to be quoted in extenso as the other part of it relates to the deficient conduct of the opposite party in rendering service and for adopting unfair trade practice.
8. In the matter at hand the question to be seen is whether the goods bought and used or the services availed by the complainant were exclusively meant for the purpose of earning his livelihood by means of his self-employment or not. There are a catena of decisions now available on this aspect and the issue is no more res integra. It may be initially said that if the purpose of the purchase of the goods or of availing the service in question is commercial the aggrieved complainant shall cease to be a consumer under the Act as per the definition of Section 2(1)(d) of the Consumer Protection Act, 1986, but it is equally important to see and remain cognizant of the fact that an exception has been carved out in the explanation that has been spelled out along with the section and which provides that if the transaction in question was exclusively for the purpose of earning livelihood by means of self-employment the prohibitive legal mischief shall not operate and the aggrieved person shall fall within the definition of being a consumer, notwithstanding its commercial purpose. It will then remain a consumer dispute if in a given such case allegations of deficiency in rendering service or unfair trade practice have been alleged. Actually, even more important question appears to be to see as to which kind of activity or transaction is for commercial purpose, and if the same is for a commercial purpose then to determine as to which kind of activity can be said to be for the purpose of earning the livelihood by means of self-employment. Obviously, there cannot be any rigid law on this point as it is essentially a question of fact and the deductive inference shall vary from case to case according to the evidence that may be available in this regard in each case. One has to be circumspect in evaluating the specificities of the material available and see for itself whether it is an activity in order to arrange the livelihood by means of self-employment or whether the activity exceeds or transgresses the reasonable arena or ambit or confines within which or the extent up to which a commercial activity may be said to be of the nature of self-employment. It may be relevant to quote some important observations made by the Apex Court in CIVIL APPEAL NO. 12322 OF 2016 Lilavati Kirtilal Mehta Medical Trust vs M/S Unique Shanti Developers, Order dated 14 November, 2019:-
In Laxmi Engineering (supra), which is one of the leading authorities on this point, a two-Judge Bench of this Court elucidated upon the meaning of 'commercial purpose' as follows:
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The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for"business-to-consumer' disputes and not for "business-to-business" disputes. This scheme of the Act, in our
opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal.
11. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It isalso 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 Dictionary); 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 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 profit" he will not be a "consumer" within themeaning of Section 2(d)(i) 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."
9. While proceeding further Hon'ble Apex Court again referred to the case of Laxmi Engineering wherein the case of the Synco Textiles Pvt. Ltd. v. Greaves Cotton and Company Limited, (1991) 1 CPJ 499 was also referred to. The relevant extract of the Apex Court decision given in Lilavati's case may again be usefully quoted, which reads as follows:-
In the aforementioned discussion in Laxmi Engineering, this Court elied upon Synco Textiles Pvt. Ltd. v. Greaves Cotton and Company Limited, (1991) 1 CPJ 499. In Synco Textiles, a 4 Member-Bench of the National Commission headed by V.Balakrishna Eradi J., expounded upon the meaning of the term'commercial purpose', prior to the insertion of the Explanationclause to Section 2(1)(d) of the 1986 Act:
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4. Going by the plain dictionary meaning of the words used in the definition section the intention of Parliament must be understood to be to exclude from the scope of the expression 'consumer' any person who
buys goods for the purpose of their being used in any activity engaged on a large scale for the purpose of making profit. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large scale manufacturing or processing activity carried on for profit. In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the large scale activity carried on for earning profit.
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10. It may be re-emphasized here that in order to determine the nature of particular transaction or its category no straight-jacket formula of universal application can the laid down. It may be apt again to quote the observation made by Hon'ble Apex Court in case of Paramount Digital Colour Lab v. Agfa India Private Limited, (2018) 14 SCC 81 which reads as follows:
"12...It is therefore clear, that despite "commercial activity", whether a person would fall within the definition of "consumer" or not would be a question of fact in every case. Such question of fact ought to be decided in the facts and circumstances of each case.
17. Since there is nothing on record to show that they wanted the machine to be installed for a commercial purpose and not exclusively for the purposes of earning their livelihood by means of self-employment, the National Commission was not justified in concluding that the appellants have utilised the services of an operator or a helper to run a commercial venture. One machine does not need many operators or helpers to complete the work entrusted. Since the appellants were two partners, they must have been doing the work on their own, of course, may be with the aid of a helper or an operator. The machine would not have been used in a large-scale profit-making activity but, on the contrary, the appellants purchased the machine for their own utility, personal handling and for their small venture which they had embarked upon to make a livelihood. The same is distinct from large-scale manufacturing or processing activity carried on for huge profits. There is
no close nexus between the transaction of purchase of the machine and the alleged large-scale activity carried on for earning profit.
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11. Reverting back to the Apex Court's decision given in Lilavati's case it would be apposite to refer some pithy observations made therein which read as follows:-
5. It is true that the aforementioned decisions were rendered in the context of deciding whether the goods or services availed of in the facts of those cases were for a commercial purpose or exclusively for the purpose of self-employment. This does not mean, however, that in every case a negative test has to be adopted wherein any activity that does not fall within the ambit of 'earning livelihood by means of self-employment' would necessarily be for a commercial purpose. We reject Respondent No. 1's argument in this regard.
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12. Now reverting back to the facts of the case. It has been clearly averred in the complaint itself that the activity that was being run by the complainant did not require anything more than just one skilled labour and five other labourers. Though no straightjacket formula of universal application may be laid down in this regard regarding the limit or the number of employees which will keep an activity limited to purposes of self-employment and beyond which limit the activity shall or should be deemed to be a commercial one not meant for self employment, but in the totality of facts and circumstances of the case as they evince out from the bare perusal of the complaint (which has not been rebutted by way of filing any written statement or evidence) the enterprise does not appear to be such a large-scale commercial activity having such nature that may not be meant for self-employment in order to earn livelihood. When this bench has perused the relevant part of the impugned Order in order to see the reasoning on the basis of which it arrived at the conclusion that it was not a consumer dispute and the complainant was not a consumer it finds that nothing worth the name of reasoning has been given for drawing such an inference. There may be many such commercial activities which though may be meant exclusively for the purpose of earning livelihood by means of self-employment but which may require the assistance of a certain number of persons to run the same. Such aids may be called assistants or labourers or persons with some other designation. One cannot say with reason that the activity will cease to be for the purpose of earning the livelihood by means of self-employment the moment it is being performed by more than one person. A self-employment activity does not need to be performed single-handedly always. The learned State Commission has referred to certain case laws but all the case laws relied upon have expatiated upon the law on the point, and as has already been observed there is no dispute on the point of law in this regard. The issue at hand involves only a question of fact which can be decided and determined only on the basis of material or evidence available on record. The perusal of the State Commission's Order would show that it has been observed therein that:
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Though the appellant (complainant) has pleaded that he purchased the bricks press machine for earning his livelihood, but it appears that the above machine was installed in his commercial place and the same was operated by labours. The appellant (complainant) employed labours for operating the machine. The appellant (Complainant) has employed labours to assist him in carrying out his business. The appellant (complainant) has failed to establish that he availed services of the respondent (O.P.) exclusively for earning his livelihood by way of self employment.
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25. On the basis of above facts, it appears that the bricks press machine was not purchased by the appellant (complainant) for his personal use or livelihood, but it was purchased for commercial purpose, therefore, the appellant (complainant) does not come within the purview of "consumer" as defined in Section 2(1)(d) of the Consumer Protection Act, 1986.
26. In view of above discussions, we are of the firm view that the appellant (complainant) is not a "consumer" and the complaint is not maintainable before the District Forum. Therefore, without going into the merits of the case, the complaint of the appellant(complainant) is liable to be dismissed on the sole ground that the appellant (complainant) is not a consumer and the dispute between the parties is not a "consumer dispute."
13. From the perusal of the above observations it appears that learned State Commission has taken a rather constricted or stringent view and has also not arrived at the findings on the basis of any such convincing reasoning or factual basis which may exclude the activity of the complainant from being a consumers activity under the Act or which may take away the grievance of the complainant from being a consumer dispute or which may divest the complainant from his status of being a 'consumer' under the Act.
14. In view of the above it appears just and appropriate to set aside the impugned Order and remit the case back to the State Commission with the request to decide the same on merits after providing opportunity to both the sides, holding the complainant to be consumer under the Act and the grievance as alleged by him to be a consumer dispute.
15. Parties are directed to appear before the State Commission on 19.12.2023.
16. The principal onus of informing the respondent of this instant Order shall be of the petitioner. It shall do so within two weeks from today, without fail, and file proof thereof before the State Commission on or before the next date of hearing before it.
However, if for whatever reason, the respondent does not appear before the State Commission on the date of hearing, the State Commission shall issue notice for requiring its presence in order to proceed in accordance with law in the matter, as directed by this Commission. The State Commission in such a situation may also require the petitioner to take adequate steps in order to facilitate service on the respondent.
17. The Registry is requested to send a copy each of this Order to all parties in the petition and to their learned counsel. The stenographer is requested to upload this Order on the website of this Commission immediately.
..................................................J KARUNA NAND BAJPAYEE PRESIDING MEMBER