KAILASH SHARMA vs CHAIRMAN, ZEROX MODI CORPORATION LTD. & ORS

This revision petition has been filed by the petitioner against the order dated 2.08.2011passed by the Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench No.3, Jaipur (in short, ''the State Commission'') in Appeal No. 26/2009 - Xerox India Ltd. & Ors. Vs. Kailash

Sharma by which, while allowing appeal, order of District forum allowing complaint was set aside.

Brief facts of the case are that complainant/petitioner had business of typing and photocopy in a shop for earning his livelihood and to maintain his family purchased photocopier machine from OP/respondent. After installation of the machine, it did not work properly, as per capacity shown. Complainant made complaint to OP, but inspite of assurance it was not repaired. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and admitted purchase of machine by complainant, but denied any fault in the machine and further submitted that no complaint regarding fault in machine was ever made by the complainant. It was further submitted that complainant purchased machine for commercial purpose, so, complainant does not fall within purview of consumer and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to refund cost of the machine of Rs.4,07,940/- with 10% per annum interest and further directed to pay Rs.20,000/- as compensation. Both parties preferred appeal before learned State Commission and learned State Commission vide impugned order allowed appeal of OP and dismissed complaint against which, this revision petition has been filed along with application for condonation of delay.

Heard learned Counsel for the parties and perused record.

As there is delay of only 7 days in filing revision petition, delay stands condoned for the reasons mentioned in the application.

Learned Counsel for the petitioner submitted that inspite of pleading and proof of the fact that machine was purchased by complainant for earning his livelihood by self-employment, learned State Commission committed error in allowing appeal and dismissing complaint; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondents submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

Complainant in the complaint submitted that complainant for earning his livelihood carried on business of typing and photocopy in a shop and purchased photocopier from OP for maintenance of his family members. OP resisted complaint and submitted that complainant purchased photocopier for commercial purposes. Learned Counsel for the petitioner submitted that petitioner was carrying on his business with the help of two brothers and four servants; even then, it has to be treated as earning livelihood by self-employment. On the other hand, learned Counsel for the respondent submitted that complainant purchased aforesaid photocopier in the year 2003 in the name of M/s. Neelkamal Commercial Institute, Jaipur which itself shows that Photostat copier was purchased for commercial purposes. He has further drawn my attention towards profit & loss account of the complainant for the year ending 31.3.2004, which reveals that complainant paid salary of Rs.5,88,400/- to its employees and also paid Rs.7,36,815/- for job work expenses. It further reveals that complainant incurred expenses of Rs.64,868.50 for staff welfare and by job work he received Rs.38,55,511.70 and there was profit of Rs.4,95,334.92. When complainant was paying abut Rs.13,00,000/- as salary and job work expenses, it cannot be treated that complainant was operating photocopier for earning his livelihood by self-employment especially on admission by Counsel for the complainant that complainant was running shop with the help of his two brothers and four servants and in such circumstances, learned State Commission has not committed any error in holding that photocopier was purchased for commercial purposes.

Learned Counsel for the respondent placed reliance on judgment of this Commission in R.P. No. 3668 of 2006 - Sapna Photostat Vs. Excel Marketing Corporation & Anr. in which it was observed as under: 10. In the instant case, there is credible and ample evidence to confirm that the Petitioner was carrying out commercial activities for earning her livelihood. In this connection, it is on record that she was operating from her residence and had not hired any other employees to assist her.

Further, there is documentary evidence in the form of meter readings in the invoices produced before the District Forum which indicate that she had a modest business of doing an average of 17 photocopies per day which was about 510 copies per month. In view of these facts we agree with the District Forum that this was not a major commercial venture and was used by the Petitioner to earn her livelihood.

Perusal of aforesaid judgment makes it clear that a person can be said to earn his livelihood by self-employment only when he does not hire services of any employee to assist him. In the case in hand, as complainant was operating his shop with the help of two brothers and four servants and paying huge salary to the staff and for job work, complainant does not fall within purview of consumer.

I do not find any illegality, irregularity and jurisdictional error in the impugned order and revision petition is liable to be dismissed.

Consequently, revision petition filed by the petitioner is dismissed with no order as to costs.