Bhanumati S Chandan vs Sudev Ventures

THE instant complaint has been filed by Mrs. Bhanumati S.Chandan and other alleging deficiency in service on the part of the opposite party in respect of the shop booked by the complainant in the project undertaken by opposite party.

THE contents of the complaint at the outset raise a question whether or not Mrs.Bhanumati has a locus standi to maintain a consumer complaint. In order to find answer to the above question, it is necessary to have a look on the definition of the "Consumer" as envisaged under Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 ( in short, the Act) which is reproduced thus : - 2. (1) (d) "Consumer" means any person who, (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 and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose. ;

{Explanation For the purposes of this clause, "Commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self -employment}.

ON reading of the above, it is clear that a person is a consumer who hires or avails of service for consideration whether present, past or future provided, service has not been hired or availed for commercial purpose. The explanation to the above definition of consumer is carved out in the explanation to section 2 (1) (d), which defines that term commercial purpose does not include the service availed by the person exclusively for the purpose of earning his livelihood by means of self employment. On careful reading of the complaint, it transpires that allegations of deficiency in service are in respect of shop which is a commercial purpose. Thus, it cannot be disputed that the complainants have availed services of the opposite party for commercial purpose. Learned counsel for the complainants have submitted that in view of explanation 2 (1) (d) of the Act, availing of the services of the opposite party cannot be termed as services availed for commercial purpose because the shop in question was booked by the complainants for earning livelihood by means of self employment i.e. running a boutique. In support of this contention, learned counsel for complainants has drawn my attention to the affidavit of the complainant no.1 dated 17.12.2014. Relevant portion of the affidavit reads as under : "Mrs.Bhanumati S.Chandan, age 50 years, Occ. Business, R/o at 204, Gera Chambers, 2nd floor, Plot No.204, Office Boat Club Road, Pune -411001 solemnly affirm as under: I say that the opposite party has agreed to sell an ownership basis a shop No.4 situated on the ground floor admeasuring 2558.75 sq.ft. and 2027.57 mezzanine floor in the building known as "Sudev Axis" on the land bearing Survey No.32, Final Plot No.73, 74, 75, 76 and 77, Sangamwadi, Town Planning Scheme, City Survey No.2, Shivajinagar, District Pune.

The said agreement was executed and register as on 9th April, 2000. The said shop was purchased for the purpose of my livelihood. I am going to start a business of butic. I have knowledge of fashion designing. I am going to develop a business butic. As per the requirement the designing will be stitch on the cloth. This business will be my livelihood. I am not doing any type of business as on today. This type of business is only for the purpose of self -employment.

I further state that the above mentioned contention is not mentioned in the complaint. I hereby state that this affidavit may please be treated as part and parcel of the complaint."

COMPLAINANT no.1 in her affidavit has vaguely averred that she booked the shop for purpose of earning livelihood by starting a business of boutique. This averment is not sufficient to bring the case of the complainants within the explanation to section 2 (1) (d) of the Act for the reason that in the affidavit, it is not categorically stated that shop was booked by the complainants exclusively for earning livelihood by means of self employment. On careful reading of the affidavit, it is seen that complainant no.1 has described her occupation as business. Thus, it is clear that said complainant is already running a business. As such, it cannot be said that shop in question was booked exclusively for the purpose of earning livelihood by way of self employment. Thus, case of complainants is not covered under the explanation to Section 2 (1) (d) of the Act. As the shop in question was booked for commercial purpose, the complainants are not covered under the definition of ''consumer'' as envisaged under section 2 ( 1) (d) of the Act. Thus, they have no locus standi to maintain the consumer complaint.

IN view of the discussion above, complaint is rejected at the outset. It is, however, clarified that this order will not come in the way of the complainants for availing legal remedy by moving appropriate forum on the same cause of action.