GANGA DATT GUPTA vs KEWAL KRISHAN CHHABRA

THIS appeal has been filed by the appellant against the order of the District Forum No. 2 dated 4th August, 92 by which the complaint has been dismissed.

BRIEFLY the facts of the case are that the complainant entered into an agreement with the respondent to purchase machinery at a total cost of Rs.40,000/ - at Delhi. In pursuance of the agreement we gave an advance of Rs. 2,500/- to the respondent. The balance amount of Rs.3,750/- was to be paid by him at the time of the delivery of the machinery. It is further pleaded that the complainant alongwith a machanic went to the factory of the respondent at Barara to test the machinery. It was found that it was not working properly and that the respondent was unable to rectify the defects. Consequently, it is alleged, that he requested the respondent to refund the amount of Rs. 2,500/- paid as advance. The respondent did not refund the amount. He filed a complaint before the District Forum for recovery of the said amount. Respondent did not appear there and was proceeded against ex parte. However, the complaint was dismissed by the Forum. He was come up in appeal against the order of the District Forum to the Commission.

The first question that arises for determination is, whether the complainant is a consumer as defined in Sec. 2(1)(d) of the Consumer Protection Act. It is stated by the complainant that he purchased the machinery for self employment in order to earn livelihood after his retirement from service. It has been observed by the National Commission that if machinery is purchased by a person for self employment he should be deemed to be a consumer. An explanation has now been added to the definition of the word consumer by Ordinace No. 24 of 1993 promulgated on 18-6-93,whereby "commercial purpose" has been defined. It reads as follows:- Explantation for the purpose of Sub-clause (i) - ''commercial purpose'' does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelyhood, by means of self-employment." It is thus clear from the definition that the person who purchases any goods for self employment for the purpose of earning his livelihood, such use will not be treated for commercial purpose. It is common knowledge that a person after retirement has to do some work to make both ends meet, as the cost of living has risen very high and pension is meagre. Therefore in our view, the complainant is a consumer.

THE complainant''s case is that respondent failed to provide the machinery in working condition to him. THEre is no denial of that fact by the respondent. In these circumstances, there is no ground to disbelieve the complainant. He is, therefore, entitled to refund of the advance paid by him to the respondent. He is further entitled to interest @ 15% p.a. on the said amount from the date when he visited Barara i.e. 25-10-90 to 12-7-93 which comes to Rs.1017.00. Consequently, we accept the appeal with costs and direct the respondent to payee an amount of Rs. 3517/- with interest of @ 15% p.a from 12-7-93 to the date of payment to the appellant within a period of three months from the date of the order, failing which action shall be taken against him under Section 27 of the Consumer Protection Act. Costs Rs. 500/-. Appeal allowed with costs.