State Consumer Disputes Redressal Commission
Relay Engineering Services vs Hanuman Hardware Store & Anr. on 28 June, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2015/242
Instituted on : 24.07.2015
Relay Engineering Services,
Through : Manager / Authorised Officer,
R/o : Relay House, 91-92, A.J.C. Society, Katol Road,
Nagpur (Maharashtra) ... Appellant.
Vs.
1. Hanuman Hardware Stores,
Proprietor : Jaiprakash Agrawal,
F.C.I. Road, Vyapar Vihar,
Bilaspur, Tehsil and District Bilaspur (C.G.)
2. Shailesh Dwivedi, Authorised Officer,
Relay Engineering Services,
Office : Gali NO.4, Near Children Park, Vinoba Nagar,
Bilaspur (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Jitendra Shrivastava, for the appellant.
Shri D. Dutta & Shri G.V.K. Rao, for the respondent No.1.
None for the respondent No.2.
ORDER
Dated : 28/06/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 02.05.2015, passed by the District Consumer Disputes Redressal Forum, Bilaspur // 2 // (C.G.) (henceforth called "District Forum") in Complaint Case No.CC/2013/49. By the impugned order, the District Forum has rejected the preliminary objection raised by the O.P.No.1 that the complainant purchased the Lift for commercial purpose.
2. The complainant filed consumer complaint before the District Forum seeking reliefs, which are mentioned as below :-
(a) To direct the OPs to pay the principal money
Rs.2,88,000/- to the complainant.
(b) To direct the OPs to pay interest @ 24% p.a. on the
principal money from the date of receipt of the same.
(c) To direct the OPs to pay a sum of Rs.1,00,000/- to the complainant towards compensation for physical, mental agony and financial loss along with interest @ 18% p.a. from the date of filing of the complaint.
(d) To direct OPs to pay cost of litigation to the complainant.
(e) To direct the OPs to pay any other reliefs to the complainant, which this Commission deems fit.
2. The O.P. No.1 filed preliminary objection and averred that the Lift was purchased by the complainant for installation of the same in his commercial premises for commercial purpose, therefore, the complainant does not come within purview of "Consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986 // 3 //
3. Learned District Forum, after having considered dismissed the preliminary objection raised by the O.P.No.1.
4. Shri Jitendra Shrivastava, learned counsel appearing for the appellant (O.P.No.1) has argued that the appellant (complainant) purchased the Lift for commercial purpose for installing it in his commercial space and the respondent No.1 (complainant) himself pleaded that he is Proprietor of Hanuman Hardware Stores, which is being run in his commercial complex. The respondent No.1 (complainant) placed an order to the appellant (O.P.No.1) for supplying lift for his commercial establishment M/s Hanuman Hardware Stores, therefore, the respondent No.1 (complainant) himself admitted that he has purchased the Lift for use of his commercial establishment for commercial purpose, hence the appellant (complainant) is not a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986, but learned District Forum, has erroneously observed that the appellant (complainant) is a consumer. Hence, the appeal may be allowed and impugned order passed by the District Forum is may be set aside.
5. Shri D. Dutta, learned counsel appearing for the respondent No.1 (complainant) has argued that the impugned order passed by the learned District Forum, is just and proper and does not suffer from inherent irregularity or illegality. He further argued that the // 4 // respondent No.1 (complainant) has placed an order for supply of Lift to the appellant (O.P.No.1) for his livelihood. The said Lift was not installed in the premises of the respondent No.1 (complainant). The respondent No.1 (complainant) is consumer and the OPs are service provider. Hence the appeal filed by the appellant (complainant) is liable to be dismissed.
6. None appeared for the respondent No.2 (O.P.No.2) on 24.06.2016 when the case is fixed for final arguments, inspite of service of notice by registered post.
7. We have heard learned counsel appearing for the parties and have also perused the record of the District Forum and the impugned order.
8. Learned District Forum has observed that it is not disputed that the appellant (complainant) wishes to install a Lift in his commercial premises, but merely on the ground that Lift was installed in the commercial premises, it cannot be held that the appellant (complainant) is not a consumer.
9. The respondent No.1 (complainant) pleaded that he is doing business in the name and style Hanuman Hardware Stores and the same is being run from his commercial premises. The appellant (complainant) further pleaded that he placed an order for supply of // 5 // Lift to the appellant (O.P.No.1) for his commercial purpose and to install the same in his commercial establishment i.e. Hanuman Hardware Stores, FCI Road, Vyapar Vihar, Bilaspur (C.G.). It appears that the appellant (complainant) himself pleaded that the Lift was purchased by him for commercial purpose for a commercial place.
10. In Bengal Rowing Club Vs. Kingfisher Elevator Industries Pvt. Ltd. & Anr., I (2016) CPJ 87, Hon'ble National Commission has observed thus :-
"8. The Hon'ble Apex Court in a recently reported authority in Tansingh Chauhan v. Trio Elevators Co. India Ltd., in Special Leave to Appeal (Civil) No.37898 of 2013, decided on 3.1.2014 upheld the order passed by this Commission passed in Revision Petition No.863 of 2013, dated 22.7.2013, wherein the complainant was possessing Hotel Kalinga Palace at Barmer in which three Elevators were to be installed by the opposite party, Trio Elevators Co. India Ltd. It was alleged that there was delay in installation of the Elevators which too, were not working properly, due to which the complainant suffered a loss of Rs.10 lakh. It was held that the complainant did not fall within the purview of the definition "consumer" as defined under the Consumer Protection Act, 1986 and the complaint was dismissed."
11. In Indo Plast Industries & Anr. Vs. Engel India Machines & Tools Ltd., II (2016) CPJ 676 (NC), Hon'ble National Commission has observed thus :-
// 6 // "7. ......It is undisputed that the machine was purchased in the year 1980 and it worked satisfactory for 16 years before giving trouble in 1996. There was no warranty clause applicable in the year 1996. It is also clear that the appellant No.1 is an industry and the machine was purchased for commercial / industrial use. The appellants have not been able to prove that this industry is by way of self -employment.
Thus, appellants do not come under the definition of the 'consumer' as given in the Consumer Protection Act, 1986........"
12. In Birla Technologies Limited v. Neutral Glass and Allied Industries Limited, (2011) 1 Supreme Court Cases 525, Hon'ble Supreme Court has observed thus :-
"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 // 7 // 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, 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."
13. In Rajeev Metal Works and Others v. Mineral & Metal Trading Corporation of India Ltd., (1996) 9 Supreme Court Cases 422, Hon'ble Supreme Court has observed thus :-
// 8 // "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
(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 // 9 // 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 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 // 10 // 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 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."
// 11 //
14. In Kurji Holy Family Hospital v. Boehringer Mannheim India Ltd. & Ors., III (2007) CPJ 371 (NC), the Hon'ble National Commission has observed thus :
"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 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 // 12 // 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."
15. In JCB India Ltd. Vs. Mallappa Sangappa Mantri & Anr., IV (2012) CPJ 220 (NC), Hon'ble National Commission has observed thus :-
"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 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 // 13 // 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."
16. In Kishore Ramchandra Bhide v. Habibat India Agro Development Pvt. Ltd. & Ors., IV (2012) CPJ 706 (NC), Hon'ble National Commission, has observed thus :-
"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 :
// 14 // "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 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 // 15 // 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."
17. In Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC)., Hon'ble National Commission has observed thus :-
"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 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 // 16 // 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".
18. In Sanjay D. Ghodawat v. R.R.B. Energy Ltd., IV (2010) CPJ 178 (NC), Hon'ble National Commission has observed thus :-
"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 modules as also shortcomings in OP's services during the warranty // 17 // 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."
19. In M/s Rohit Chemical & Allied Industries Pvt. Ltd. National Research Development Corporation, IV (2013) CPJ 87 (NC), Hon'ble National Commission has observed thus :
"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 // 18 // 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 // 19 // 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 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".
// 20 //
20. On the basis of above facts, it appears that the respondent No.1 (complainant) is running business in the name of Hanuman Hardware Stores, in commercial space and the lift was purchased for the commercial purpose. The respondent No.1 (complainant) has not been able to prove that the Lift was purchased by the appellant (complainant) for his personal use or livelihood, therefore, it can safely be held that the Lift was purchased by the appellant (complainant) for commercial purpose, therefore, the appellant (complainant) does not come within purview of "consumer" as defined in Section 2(1)(d) of the Consumer Protection Act, 1986.
21. In view of above discussions, we are of the firm view that the appellant (complainant) purchased the Lift for commercial purpose, therefore, the finding recorded by the District Forum that respondent No.1 (complainant) is "consumer", is erroneous and is not sustainable in the eye of law
22. Therefore, the appeal filed by the appellant (O.P.No.1) is allowed and impugned order dated 02.05.2015 passed by the District Forum, is set aside. Consequently, the complaint stands dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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