Document Fragment View

Matching Fragments

M/s. A.M. Services & Ors. 03/11/2023 partnership firm which is engaged in business of civil contract work, including and not limited to transportation, maintenance work etc. The complainant approached the opposite party No.2 for transportation of five trucks in question, purchased from opposite party No.3 in online bidding in auction, for the said partnership firm. Purchase of goods or hiring of services in the course of normal business activity would certainly entail a profit motive at its core and thus would generally be covered by the exception disqualifying one from taking benefit of this Act. However, in spite of purchasing goods or availing services for a profit motive, if the person is able to satisfy 3 criteria laid down in the exclusion to the exception one will still be entitled to take the benefit of the Act i.e. goods or services are to be used by the person; exclusively for the purpose of earning livelihood and by way of self-employment. In the instant case the complainant purchased five trucks for the purpose of expanding their business of transportation and construction, with the motive of maximizing their profit. He has relied upon judgement of Hon‟ble Apex Court in Cheema Engineering Services Vs. Rajan Singh, (1997) 1 SCC 131 and averred that the purpose of purchase of trucks in the instant case was not self-employment as defined in the Act as well as in the above landmark judgement. Hence, the complainant does not come under the purview of definition of „consumer‟ as defined under the Act therefore this complaint is not maintainable before this Commission. In this regard the opposite party No.2 has also referred the averment of the complainant in paragraph No.2 of their legal notice dated 05.12.2019 and averred that purchase of five trucks in the business clearly shows that it was for profit motive and it being a commercial transaction, this complaint is out of the ambit and jurisdiction of the Act.

11. The first and foremost question which arises for consideration is whether the complainant comes under the purview of definition of „consumer‟ and this complaint filed by her is maintainable before this Commission or not ?

12. To determine this issue the definition of „consumer‟ as given under section 2 (7) of the Act is quite relevant and significant to reproduce here, which is as under : -

M/s. A.M. Services & Ors. 03/11/2023 purchasing the goods or services is for a profit motive and this fact is evident from record, such purchaser would not fall within the four corners of the definition of 'consumer'. On the other hand, if the answer is in the negative, namely if such person purchases the goods or services is not for any commercial purpose and for one's own use, it cannot be gainsaid even in such circumstances the transaction would be for a commercial purpose attributing profit motive and thereby excluding such person from the definition of 'consumer'. When there is an assertion in the complaint filed before the Consumer Court or Commission that such goods are purchased for earning livelihood, such complaint cannot be nipped at the bud and dismissed. Evidence tendered by parties will have to be 27 evaluated on the basis of pleadings and thereafter conclusion be arrived at. Primarily it has to be seen as to whether the averments made in the complaint would suffice to examine the same on merits and in the event of answer being in the affirmative, it ought to proceed further. On the contrary, if the answer is the negative, such complaint can be dismissed at the threshold. Thus, it would depend on facts and circumstances of each case. There cannot be any defined formula with mathematical precision to examine the claims for non-suiting the complainant on account of such complaint not falling within the definition of the expression 'consumer' as defined under Section 2(1)(d)."

M/s. A.M. Services & Ors. 03/11/2023 partnership firm for the purpose of earning livelihood by means of self- employment and it is not a restriction that only one truck can be used by them for transporting. They can use one, two, four, five or more trucks altogether as per their need and which can be driven by appointed drivers. It is not necessary for a self-employment person that his truck is driven by himself, it may be driven by his driver and he can take assistance of other helpers/ persons too. Looking to the fact that in our country women are now in growing stage in business and they are doing their own businesses and they can hire or appoint drivers to assist them in running their transport business. Therefore, we are of the considered view that the complainant comes under the purview of definition of „consumer‟ as defined under Section 2(7) of the Act and this complaint is very well maintainable before this Commission.