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16.    According to the explanation appended to Section 2(1)(d)(ii), "commercial purpose"

does not include use by a consumer of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment. In paragraph number 2 of the complaint, in, clear-cut terms, it was stated by the complainant, that he was running Deep Clinical Laboratory and ECG Centre, being its sole proprietor, at Mohali, Punjab, for earning his livelihood, by way of self-employment. He further clarified that for running this small enterprise, he also gets assistance of his father, Sh. Pawan Kumar Jindal, who is a retired Senior Laboratory Technologist, from General Hospital, Sector 16, Chandigarh, and has got vast experience, in Clinical Laboratory Technology. He further clarified that he is also getting help and assistance, in running the said Laboratory, of his younger brother Mr. Vikas Kumar Jindal, who holds B.Sc. Degree (Medical) and one year Diploma in Medical Laboratory Technology, from Govt. Rajendra Medical College and Hospital, Patiala. The averments contained, in paragraph number 2 of the complaint, were duly supported by the complainant, in his detailed affidavit, filed by him, by way of evidence. It is, thus, proved that the complainant has been running Deep Clinical Laboratory and ECG Centre, at Mohali, Punjab, with the help of his father and brother, referred to above, for the purpose of earning his livelihood, by way of self-employment. The mere fact, that he has been taking assistance of his father and brother, who are experts, in the line, and are his family members, does not go to prove that he has been running the Laboratory, as a commercial venture, with a view to earn huge profits. No cogent and convincing evidence was also produced by the Opposite Parties, that the complainant was carrying some other commercial activity, as a result whereof, he was earning huge profits. Even, no cogent and convincing evidence was produced by the Opposite Parties, to prove that the Clinical Laboratory, being run by the complainant, with the help of his family members, is a large commercial venture, solely for the purpose of earning huge profits, and not for earning his livelihood, by way of self-employment. In Haryana Urban Development Authority Vs. Usha Vohra, IV (2009) CPJ 305 (NC), the complainant was allotted a booth in Sector 10, Panchkula, on 15.10.1991, for which she had paid a total consideration of Rs.8,29,354.50, till 31.12.1996. There was no averment, in the complaint, that the same was purchased by the complainant, for earning her livelihood, by way of self employment. The complaint was decided, in favour of the complainant, by the District Forum, directing the Opposite Parties, to refund the excess amount charged, and an appeal was preferred, before the State Consumer Disputes Redressal Commission, which was also dismissed. Feeling aggrieved, a Revision Petition was filed by the Haryana Urban Development Authority. During the course of Revision Petition, an argument was advanced, that since the complainant was allotted booth, which was obviously for commercial purpose, she did not fall within the definition of a consumer. The National Consumer Disputes Redressal Commission, in the aforesaid case, held that the mere fact that the respondent/complainant, had been allotted a booth site, no conclusive finding, could be recorded about the same (booth) having been allotted for commercial consideration, and, not for earning livelihood, as that would require a lot of consideration to unsuit her. In Remington Rand of India Ltd., & Ors. Vs. Pioneer Typewriter Co. I (1996) CPJ 317 (NC), a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, New Delhi, the complainant purchased a Paper Copier Machine, from the Opposite Party, which did not give satisfactory service. No averment, was made, in the complaint, that the Paper Copier Machine, had been purchased by the complainant, for earning livelihood, by way of self employment. Ultimately, the machine became defective, and the complaint for replacement of the same, was filed. The State Consumer Disputes Redressal Commission, decided the complaint, in favour of the complainant. Feeling aggrieved, an appeal was filed by the Opposite Party/appellant, which took up the plea, that the complainant/respondent, did not fall within the definition of a consumer, as the machine was purchased by it, for running the business, on a large scale, for earning huge profits. In these circumstances, the National Consumer Disputes Redressal Commission held that the firm of the complainant, was indeed a small unit, and just because it was a partnership firm, it could not be concluded that it was engaged, in a large scale commercial activity, for earning huge profits. It was further held that since loan was obtained by the complainant/respondent, from the Bank, for purchasing the machine, which fact, in itself, clearly proved that the complainant was to run a small venture, to earn its livelihood, by way of self employment. In Techno Mukund Constructions Vs. Mercedes Benz India Limited & Anr., 2011 (2) CLT, 362, a motor car was purchased by the Firm, for the use of its Managing Partner, for his going and coming to his place of work and home, and it was for his use for the activities of the Firm. A plea was raised, by the Opposite Parties, that the car was sold by them, to the complainant, which was a commercial Company, and it was being used for a commercial purpose, and, as such, it was not a consumer, and did not fall within the definition of a consumer, as defined under Section 2(1)(d) of the Act. The National Consumer Disputes Redressal Commission, New Delhi, however, held that the buyers of goods or services for self consumption, in economic activities, in which they are engaged, would be consumers, as defined by the Act. It was further held that the purchase of car, in question, by the complainant, could not be held to be a case of purchase for commercial purpose. In Dr. Santosh Kumar Khanna Vs. Wipro Ge Medical System Ltd., and Ors., IV (2005) CPJ 666, a case decided by Uttaranchal State Consumer Disputes Redressal Commission, Dehradun, the complainant, being a retired Senior Physician, purchased machinery for self-employment and to effectively diagnose disease. The machine became defective and he filed a consumer complaint. An objection was taken by the Opposite Parties, that the same had been purchased by the complainant, for commercial purpose, and, as such, he did not fall within the definition of a consumer, as defined under Section 2(1)(d), of the Act. The State Consumer Disputes Redressal Commission, Dehradun, however, held that the commercial purpose was not involved and the complainant fell within the definition of a consumer. In Halda Office Systems Pvt. Ltd. Vs. Bapuji Institute of Engineering and Technology, II (2012) CPJ 359 (NC), chairs were purchased for the use of students, in educational institution. There was no evidence that the said chairs were purchased, on behalf of the institution, for commercial purpose. Some of the chairs were got replaced, as the same were defective.

Under these circumstances, it was held that it could not be said that the complainant did not fell within the definition of a consumer. In Shind Engineering Industries Vs. J.S. Birdi & Sons, III (2002) CPJ 277 (NC), machines were purchased by the complainant, which were being used for earning livelihood by way of self employment. During the warranty period, the machines were not functioning satisfactorily. The machines were, ultimately, got repaired. The State Consumer Disputes Redressal Commission held that the complainant was not a consumer, though it was stated that the machines were being operated, by the complainant, and his son and they did not employ any other staff. In the First Appeal filed by the appellant/complainant, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the machines were being used by the complainant, for his self employment, and, as such, the complainant fell within the definition of a consumer. In Jindal Oil and Ginning Factory Vs Punjab Small Industries & Export Corporation (2009)CPJ26(Pb), a case decided by the Punjab State Consumer Disputes Redressal Commission, Chandigarh, an application for allotment of an industrial plot, was made by the complainant, but no averment was made, in the complaint, by the complainant, that it was purchased with a view to earn livelihood, by way of self employment. However, the Punjab State Consumer Disputes Redressal Commission, at Chandigarh, held that when the industrial plot was not allotted to the complainant, it sought refund, and, under these circumstances, it fell within the definition of a consumer.

and "by means of self-employment" make the intention of the 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 emphasis that 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 a buyer, takes the assistance of one or two persons, to assist/help him, in operating the vehicle or machinery, he does not cease to be a consumer. As against this, a person who purchases an auto-rickshaw, a car or a lathe machine, or other machine, to be plied or operated exclusively by another person, would not be a consumer. This is the necessary limitation, flowing from the expressions "used by him", and "by means of self-employment" in the explanation. Similar principle of law was laid down in Laxmi Engineering Works Vs P.S.G. Industrial Institute, 1995(2) Consumer Law Today 474(SC). In M/s Cheema Engineering Services Vs Rajan Singh 1996(2)Consumer Law Today 397, a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, the complainant, purchased a brick manufacturing machine, to operate himself, for earning his livelihood, by taking assistance of one or two persons. Under these circumstances, it was held that he fell within the definition of a consumer. The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. Since, in the instant case, the machine/instrument was purchased by the complainant, sole proprietor of Deep Clinical Laboratory and ECG Centre, Mohali, Punjab, for earning his livelihood, by way of self-employment, by taking help of his father and brother, qualified technicians, and, as such, it being a small venture, it could be very well said that he fell within the definition of a consumer. The District Forum was also right, in coming to the conclusion, that the complainant fell within the definition of consumer. The findings of the District Forum, in this regard, being correct, are affirmed.

19.    The Counsel for the appellants/Opposite Parties, however, placed reliance on Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd., 2011 (1) SCC 525, Kalpavrusksha Charitable Trust Vs. Toshniwal Brothers (Bombay) Pvt. Ltd. and another, 1999(3) PLR 707 (SC), Eicher Motors Ltd. Vs. Dilip Chandra Kant Vaidya and others, 2007(1)CLT 502 and Shashi Bhushan Shori Vs. The Chairman-cum-Managing Director, Indian Overseas Bank and Ors., First Appeal No.230 of 2012, decided on 04.10.2012, this Commission, in support of his contention that the complainant, having purchased the machine/instrument, in question, for commercial purpose, to earn huge profits, and, as such, he did not fall within the definition of a consumer, as defined under Section 2(1)(d) of the Act. In Birla Technologies Ltd.`s case (supra), the appellant was to develop a software, which was to take care of financial accounting, production, marketing, purchase, stores/inventory, fixed assets, pay roll and personnel system of the respondent/complainant, a Limited Company. The cost of the said software installed was Rs.36 lacs. The system was not properly working. When the grievance of the complainant, was not redressed, it filed a complaint. The State Consumer Disputes Redressal Commission, dismissed the complaint, holding that the complainant did not fall within the definition of a consumer. Feeling aggrieved, an appeal was filed, before the National Consumer Disputes Redressal Commission. The National Consumer Disputes Redressal Commission, held that the complainant fell within the definition of a consumer. Ultimately, the Opposite Party/ appellant, filed Civil Appeal No.10650 of 2010, before the Supreme Court of India. The Hon`ble Supreme Court held that the complainant did not fall within the definition of a consumer, on the ground, that the goods were bought, and the services were hired by it, for commercial purpose, to earn huge profits. In Kalpavrusksha Charitable Trust`s case (supra) the trust purchased machinery/equipment, for CT Scanning to be used by Diagnostic Centre. The fee was being charged by the Centre from the patients. It was not the case of the trust, that the machine had been purchased and used for earning livelihood, by way of self employment. Under these circumstances, it was held by the Supreme Court, that the complainant was indulging in profit making activity, on a large scale, and, as such, it did not fall with the definition of a consumer. In Eicher Motors Ltd.`s case (supra) the complainant was a transport operator, and, he was wholly engaged in the transportation of passengers. He purchased two more buses. It was held that it could not be said that he could drive both the buses, without employing drivers. Under these circumstances, it was held that the complainant could not be said to be a consumer, nor the buses were purchased by him, for self employment, so as to exclude the same, from the phrase of commercial purpose. In Shashi Bhushan Shori`s case (supra), the complainant availed of credit facility of Rs.245.00 lacs from the bank, for the purpose of his business. No averment was made, in the complaint, that he was running the business, for earning his livelihood, by way of self employment. It was, thus, held by this Commission, that the complainant was running business, on a large scale, with the motive of earning huge profits, and, thus, he did not fall within the definition of a consumer. The facts of the cases, relied upon by the Counsel for the appellants/Opposite Parties No.1 and 2, cited in this paragraph, being completely and entirely distinguishable, from the facts of the instant case, no help can be drawn by him, therefrom. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.