KORES INDIA LTD vs Samir Purkayastha

THIS revision petition is against the order of the State Commission, Tripura, in Appeal No. CDRSC -13/94 dated 17,11.94. M/s. Kores (India) Ltd. and Anr. are the petitioners and Shri Samir Purkayastha, Proprietor, M/s. Automatic Photo State Centre, Office Road, Kailashahar Town (P.O.), District North Tripura, Tripura are the respondents. The brief facts of the case are that the respondent Shri Samir Purkayastha purchased a copier machine - Kores -72 SR 5765 90 -08 from the petitioner through their authorised dealer, who is petitioner No. 2 herein, on a payment of Rs. 39,000/ - and also paid Rs. 4,000/ - as installation charges. There was a warranty issued by the Company valid for six months from the date of installation or till the printing of 30,000 copies whichever was earlier. According to the respondent the machine never gave satisfactory results and in fact, it went out of order soon after the installation. Thereafter, it continued to be out of order although the petitioner Company removed the defects from time to time.

THE State Commission, Tripura, after going through the facts as well as hearing the Counsel for both the parties confirmed the order of the District Forum holding that the machine was defective at the time of its purchase by the complainant. The main ground of the petitioners is that this copier machine was purchased for commercial purpose and, therefore, the respondent cannot claim any relief under the Consumer Protection Act, 1986. In support of their argument, the petitioners have stated that though the defects in the working of the machine came to notice only after the warranty period was over, they did service the machine keeping in view the location of the office of the respondent herein which was not connected by any air link. The State Commission considered the main objection of the petitioners herein as regards the purpose for which the machine was purchased by the respondents. Stating that the machine was not purchased for resale and quoting from the dictionary meaning of ''commerce'' ''trade'', ''industry'' etc., the State Commission came to a view that there is a difference in the connotation of the term commerce and industry although the element of trade is contained in both the terms. The State Commission held that the machine was used for industrial purpose, which is distinct from commercial purpose, and therefore, upheld the order of the District Forum directing the petitioners to replace the machine and also pay a sum of Rs. 20,000/ - as compensation. We are not convinced by the reasoning of the State Commission in determining the purpose of the purchase of this machine on the basis of dictionary meaning of the words ''commerce, ''trade, ''industry, etc. In fact, the word ''commercial purpose has a wide connotation and the determination of purpose in a consumer case should be done by taking into account a number of factors viz., the scale of business, the investment involved, the motive and intention behind the business whether in the nature of earning a livelihood or earning substantial profits, currently as well as in future etc. We find that in this case the respondent herein was using this machine for producing photocopies which were supplied for consideration. But, that itself may not give a complete picture of the nature of business. It is to be ascertained as to whether the business was by way of keeping oneself occupied and earn a livelihood or as a regular activity to earn profits and not merely livelihood. The State Commission has observed that the aspect of selling the product of machine, namely, the photocopies, for consideration should not be taken as an essential feature of the transaction between the appellant and the respondent. The State Commission has further observed that the essential feature of business in this case is industrial which has not been prohibited by the Consumer Protection Act, implying that an industrial activity is not of a commercial nature. We are not able to persuade ourselves to accept this approach for determining the nature of a business or the purpose for which a particular investment is made. In the present case, it is obvious that the respondents herein are using this machine for running a regular business and thus ''commercial purpose'' and it has also not been established that this business is purely in the nature of self -employment to earn livelihood. We, therefore, allow this appeal and set, aside the orders of the State Commission, District Forum and dismiss the complaint. There will be no order as to costs.