Ashoke Khan vs ATISH KUMAR SAHA

THIS is an appeal against an order No. 19 dated 16.1.1997 in CDF Case No. 8 of 1995 passed by the Birbhum District Consumer Disputes Redressal Forum at Suri. The appellant is a dealer in HMT tractor and is the proprietor of M/ s. Krishi Pragati at Berhampore, Murshidabad. The respondent Nos. 1 and 2 purchased a HMT tractor from the appellant''s shop on 23.4.1992 with Bank loan and with free service of warranty of one year. The opposite parties No. 1 and 2, three years after the purchase of the tractor, filed a complaint case in the Forum below against the appellant praying for several reliefs and alleging that the said tractor was defective. The appellant as opposite party entering appearance in said complaint case in the Forum below filed a petition challenging maintainability of the said complaint case on a preliminary point of law that the opposite party Nos. 1 & 2 was not a consumers as they had purchased and used the tractor for commercial purpose for earning profits there from. Both parties adduced documentary evidence before the Forum, which heard the preliminary point of law on contest.

AFTER hearing both the parties the Forum passed the impugned order dated 16.1.1997 holding that the purchase was not for commercial purpose and that the case was maintainable before the Forum. Against the said order the oppo site party No. 1 of the said case has preferred this appeal as appellant before this Commission challenging the propriety of the order. The only short point to be considered by the Commission is whether the purchase of the tractor by the respondent Nos. 1 & 2 was for commercial purpose and is the finding of the Forum correct. As the contesting parties have produced copies of the papers filed by them before the District Forum, we have taken up the hearing on the basis of these papers. It appears that the Forum disposed of the question mainly on three points. Firstly, no evidence has been adduced, secondly, it transpires from the complaint petition that the tractor was defective and thirdly, the respondent Nos. l and 2 have not admitted that they have let out the tractor for earning money.

We have considered the above points with reference to the documents produced before us. Under Section 2 (1)(d) of the Consumer Protection Act, 1986 a consumer means interalia any person buying any goods for consideration paid or promised but does not include a person who obtained such goods for resale or for commercial purpose. The goods in this case mean moveable goods. Undoubtedly, the respondent Nos. 1 and 2 purchased moveable goods (tractor) from the appellant, which they alleged to be defective. The question is whether this tractor was purchased for commercial purpose? The appellant produce a certificate issued by the financing Bank i.e. Rampurhat Co-operative Agricultural and Rural Development Bank Ltd. in which the respondent Nos. 1 and 2 admitted that they would repay the loan amount taken for purchase of the said tractor in question by letting out the same on hire against profits. He also produces receipts issued by several hirers namely Sri Shib Sadan Das dated 12.3.1994, Sri Sagar Dey dated 7.11.1992 and 18.7.1993 showing that the tractor in question was let out on hire to them against money.

THE legal controversy has arisen relating to the Explanation appended to Section 2 (1)(d) of the Consumer Protection Act, 1986 in which it has been explained that for the purpose of Sub-clause (i) "commercial purpose" does not include used by a consumer of goods bought and used by him exclusively for the earning of his livelihood by means of self employment from the said goods. It is clear that obtaining the advantage of the explanation a consumer must use the purchased goods exclusively for the purpose of earning of his livelihood by means of self employment. Applying these tests to the problem raised here can it be said that the complainants/respondent Nos. 1 and 2 purchased the tractor exclusively for the purpose of earning their livelihood for self employment? It is clear that the machine was not used for self employment alone. THE machine was let out on hire to various persons against money. Prima facie it is not the case of self employment. Moreover, there is no evidence of any kind to show that the machine was purchased and used for the purpose of earning their livelihood by the purchasers. In this connection, the appellant relies on two decisions of the Apex Court reported in II (1995) CPJ 1 (SC)=(1995) 3 Supreme Court Cases page 583 (Laxmi Engineering Works v. P.S.G. Industrial Institute) and (1997) 1 Supreme Court Cases page 131 (Cheema Engineering Services v. Rajan Singh). THE Supreme Court has given illustration in (1995) 3 S.C.C. page 583 that a purchaser of a truck who purchased for plying it as public carrier means a consumer, but a person who purchased an autorickshaw, a car or a lathe machine or other machines to be plied or operated exclusively by another persons would not be a consumer. In this case it is clear that the purpose of using the tractor was not for earning his livelihood but to make Commercial gain out of it. It is needless to mention that all such cases should be decided on merits. In (1997) 1 Supreme Court Cases 131, the Supreme Court has observed that "merely earning livelihood in commercial business does not mean that it is not for commercial purpose". According to the Supreme Court the burden of proving that the purchase of the goods was not for commercial purpose lie on the person who states that he purchased the same not for commercial purpose. Here the onus lies on the respondent Nos. 1 and 2 opposite party Nos. 1 and 2 but they have failed to prove that they purchased the tractor in question not for commercial purpose. If, however, the motive is found to be both for commercial purpose and for earning livelihood, the purchaser is to show that it was for earning livelihood only. From the facts of this case, proved by the documents produced by the appellants we are of the opinion that the complainants in the lower Court failed to prove that they purchased the tractor only for earning their livelihood and we also hold that the purchase was for commercial purpose as the complainants/respondent Nos. 1 and 2 in this appeal have failed to prove their case, rather the appellant has emphatically proved through documentary evidence that the purchase of the said tractor was for commercial purpose only. In our opinion, the complainants/respondent Nos. 1 and 2 Sri Atish Kumar Saha and Sri Dandeshwar Saha were not consumers and the decision of the District Forum in C.D.F. Case No. 8 of 1995 passed by the Birbhum District Consumers Disputes Redressal Forum, Suri is not correct.

THIS appeal is therefore allowed on contest. The impugned order dated 16.1.1997passed by the Forum below in C.D.F. Case No. 8 of 1995 is hereby set aside. Accordingly, the complaint case of the respondent Nos. 1 and 2, Sri Atish Kumar Saha and Sri Dandeshwar Saha, being CDF Case No. 8/95 of the Birbhum District Consumer Disputes Redressal Forum, Suri is hereby dismissed as not maintainable. Parties to bear their own cost. Appeal allowed.