H.C.L, Limited and Others vs C.L.Verma

A very short controversy on an important point is to be decided in this appeal. The facts giving rise to this appeal are that the respondent, who is a

retired official purchased an Electrostat Machine with the hope that he will be able to supplement his income. The money he had received at the

time of his retirement was invested in purchasing an Electrostat Machine from the present appellants. The purchase was made by him on 4th

November, 1992 with a guarantee for three months. Before the Commission, the complainant alleged that from the very date, the machine was

purchased, it developed technical defects and failed to perform satisfactorily. He requested the appellants to look into the matter but nothing was

done, the respondents thereafter made, written complaint to the appellants, who directed the Engineer concerned to visit the place and examine the

machine. The Engineer deputed by the appellants examined the machine but was not able to make the machine work. Then an offer was made by

the appellants to the respondent that the machine shall be replaced. Neither the machine was made workable nor any machine was sent as a

replacement, therefore, the respondent requested the appellants that the money given by him as the cost of the machine be refunded to him as he

was no more interested in getting the replacement of the machine. A letter was sent to appellants and the refund was sought before 20th June,

1993. On 13th July, 1993, the appellants refused to make the payment and the complainant filed a complaint before the Jammu and Kashmir State

Consumers Protection Commission on 12th August, 1993. The matter was contested by the present appellant and on 28th February, 1994, the

complaint was decided by the commission, who directed that an amount of Rs. 63,000/ being the cost of Machine and also Rs. 5,000/ as

compensation be paid to the complaint. Against this order, an appeal has been filed.

I have heard the learned counsel for the parties and gone through the record.

Only one ground has been taken to challenge the order of the Commission. According to the counsel for the appellants, the machine has been

purchased by the complainant for commercial purpose, therefore, the complaint was not maintainable in view of the fact that the complainant was

not consumer within the meaning of Jammu and Kashmir Consumer Protection Act, 1987. The consumer has been defined in section 2 (d) of the

Act, it means :

Consumer"" means any person who,

(i) Buys any goods for a consideration which h s been or promised or partly paid and partly promised or under any system of deferred payment

and includes any user of such goods other than the person who buys such goods for consideration paid or promised partly paid or partly promised

or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains

such goods for resale or for any commercial purpose.

The definition of consumer as given in the State Act was almost same as in Central Act and the word ""for any commercial purpose"" created the

confusion throughout the country and ultimately the Central Act was amended and sub section was added to Section 2 (d) of the Central Act

1993. The explanation excludes certain purposes from the purview of the expression ""commercial purpose"". Such an amendment has not been

carried out in this State.

From the bare perusal of section 2 (d) of the Act it becomes clear that the person who buys goods is a consumer and that a person who uses such

goods with the approval of the person but buys such goods for consideration is also a consumer, but it will not include a person who buys goods

for resale or commercial purpose.

As far as resale is concerned there is no confusion. The controversy and confusion, however, arises with the meaning of ""other commercial

purpose"" in common parlance, the commercial would mean, pertaining to commerce, The Concise Oxford Dictionary gives meaning of

Commerce"" as ""financial transaction especially buying and selling of merchandise, on a large scale"", with a view to come to definite conclusion with

regard to the meaning of the word ""Commercial purpose"" in section 2 (d) of the, it Act. it is necessary to see the subject of the enactment of the

Act. In this case, there is a lucid judgment of the Hon'ble Supreme Court reported in AIR 1995 SC P. 1428, by this judgment, the events have

been traced which led to the passing of Central Act. Since the Central Act is not applicable to the State of Jammu and Kashmir, the State Jammu

and Kashmir enacted its own Act which is almost a copy of the Central Act, therefore, the reasons which were before the Parliament for enacting

the law were same which were before the Legislature of the State for enacting the State Act The basic aim and object of passing of the Act was to

provide for better protection of the interests of the consumers. The Central Act has been amended to avoid any confusion but the State Act has

not been amended, there, some confusion with regard to the definition of the Consumer still persists in the State of Jammu and Kashmir, but once it

is kept in mind that the objective and the purpose of enactment was only to protect a consumer, it is not difficult to held that consumer would

include a person who is purchasing an article for this own use, not for a commercial purpose and that too not on a large scale. It can be illustrated

that a transporter purchasing number of vehicles and allowing them to be used by employees employed by him, may not be a consumer within the

meaning of Section 2 (d) of the Act but a person, who purchases one vehicle from the earning of his life and converts it into a taxi, may not be in

the category in which the transporter would be.

Therefore, keeping in view the definition of word 'Consumer' as given in Concise Oxford Dictionary I am of the view that a person who purchases

a machine for his use and derives some income from it would definitely be a consumer within the meaning of the J and K Consumer Protection Act,

1987, and such a person, if purchases an article, it cannot be termed to have been purchased for ""commercial purpose"" within the meaning of the

section 2 (d) of the Act. For giving this interrelation, to the commercial purpose, I have also drawn strength from the Hon'ble Supreme Court

Judgment (Supra)

Since the whole law in the country has been changed because of the confusion and the intention of the Parliament has been made clear by the

amendment, I dot not think the intention of the Legislature of the State would have been different, while framing the Act Coming to the facts of the

case, there was a person who was a Govt. servant and saved some money penny by penny and after his retirement, purchased a machine so that

he could earn his livelihood with dignity, if such person is held to be not a consumer for the purpose of the Act, it will be unjust.

For this reasons. I do not find any merit in this appeal, which is accordingly dismissed,