MAHESH KUMAR vs M/S. SHUBHANKAR MARKETING PVT. LTD. & 3 ORS.

This revision is directed against the judgment dated 01.12.2015 of the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (''the State Commission'') in First Appeal no. FA/15/02.

The brief facts of the case as per the petitioner/ complainant are that the petitioner was engaged in the business of drilling/digging bore-wells, which was the only source of his livelihood. The petitioner purchased on February, 2012 a Compressor against the Tax Invoice dated 04.02.2013 quoting the price as Rs.16,25,000/- only and the respondents were responsible. The compressor showed snags in the very beginning itself and despite repeated complaints and reminders thereto during the period gone by the respondents did not remove the defects, the machine could not function, the machine seemed to be beyond repairs. Finding the present machine irreparable and the respondents response bearing no fruit, the petitioner sent them a notice through his lawyer on 16.09.2013, but the respondents did not redress his grievance. The petitioner has been prevented, due to deficient service of the respondents from earning his livelihood despite making on the compressor such a huge expenditure of Rs.16,25,000/- the amount which he had borrowed from the Bank.

The respondents filed their joint written statement and averred that the petitioner was engaged in the business of drilling/digging bore-wells and he purchased the compressor and drilling machine for using the same in his business and he was using the same for commercial purpose, therefore, he was not consumer under the Consumer Protection Act, 1986. The present complaint does not come within the jurisdiction of the District Forum and is prima facie liable to be dismissed as not maintainable. The petitioner purchased a Compressor Model No.P.A.230H, Serial No.2011230194 from the respondents (OPs) at the cost of Rs.,16,25,000/- (including tax) on 04.02.2012 and the on that day itself the respondent No.1 Tax Invoice No.S.M.P.L./9023 dated 04.02.2012. The compressor was sold by the respondents to the petitioner was for digging bore-wells in its full capacity from 04.02.2012 till date. The reply of the notice sent by the petitioner was sent by the respondents to the petitioner. The respondents inspected the machine which was sold by them to the petitioner from time to time, as per the general warranty. As and when the respondents received any complaint from the petitioner they immediately removed his grievance without taking any charges. The respondents have also provided instructions to the petitioner regarding maintenance of the machine at the time of inspection, especially the quality of diesel to be used in the machine and also gave instructions to clean the air filter, fuel filter, water separator, and diesel filter. The petitioner was not using pure and clean diesel in the engine and also not cleaning the air filter, fuel filter, diesel filter. Further, the petitioner was not replacing the filters after the specified period and therefore, the machine was frequently stopping and this malfunction did not occur due to any technical or manufacturing defect but this problem was occurring because the petitioner was not using pure diesel and also not cleaning the filter in time. After purchasing the machine the petitioner had used the machine for 242 hours till 07.04.2012. The petitioner called his own technician in his village and reports were prepared as per the desire of the petitioner. The respondents have not committed any deficiency in service therefore, the complaint is liable to be dismissed.

The District Consumer Disputes Redressal Forum, Durg, Chhattisgarh (''the District Forum'') vide order dated 01.12.2014, while dismissing the complaint observed as under:

"In the above-mentioned situation, this argument of the non-applicants cannot be ignored that the complainant has utilised the said compressor in the digging of tube wells for 1343 hours and according to the reading established in the meter fixed with the said machine it has functioned for about 1585 hours. The aforesaid figures have not been objected to or refuted by the complainant. Therefore, it cannot be held that the complainant had received from the non-applicants such a defective compressor machine which could not be repaired/ corrected or the said compressor was a manufacturing defective machine. Therefore, we do not find any appropriate ground to accept the claim of the complainant; although the non-applicants have advanced an argument that the alleged compressor was purchased for commercial purpose, but it is an argument of the complainant that the said compressor was the source of his earning livelihood. Therefore, in such a situation, we do not find this objection of the non-applicants acceptable to the effect that the complainant had purchased the said compressor for commercial purposes.

Resultantly, we cannot grant benefit to the non-applicants of the following ruling so cited: V K Balan vs Trasiba Electronics - III (2001) CPJ page 189 (Tamil Nadu State Commission)

Vimal Filaments and Others vs Popular Enterprises and Others - II (2003) CPJ 643 (Tamil Nadu State Commission)

N S Ram Krishnan Nayyar vs Star Engineering Industries and Others - III (2005) CPJ 500 (Kerala State Commission).

Resultantly, according to the above-mentioned critical appreciation we do not find any appropriate ground to accept the claim of the complainant and dismiss the claim. Looking to the facts and circumstances of the matter, the parties shall bear their own expenses".

Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission vide order dated 01.12.2015 while dismissing the appeal held that: 20. On the basis of above facts, it appears that the Compressor was not purchased by the appellant (complainant) for his personal use or livelihood, but it was purchased for commercial purpose, therefore, the appellant (complainant) did not come within purview of "consumer" as defined in Section 2(1)(d) of the Consumer Protection Act, 1986.

In view of above discussions, we are of the firm view that the appellant (complainant) purchased the Compressor for commercial purpose, therefore, the finding recorded by the District Forum regarding "consumer", is erroneous and is not sustainable in the eye of law. So far as rest part of the impugned order is concerned, it is just and proper and we find that the District Forum, is not exceeded it''s jurisdiction.

Therefore, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal".

Hence, the petitioner has filed the present revision petition before us.

We have heard the learned counsel for the petitioner and have gone through the record. The Counsel for the petitioner has contended that the impugned order should be set aside as is contrary to law. The compressor was purchased for drilling/ digging bore-wells for the petitioner''s livelihood. The order passed by the Fora below hence, is not sustainable.

Before adverting to the matter, it would be useful to have a look at section 2 (1) (d) of the Consumer Protection Act, 1986, wherein Section 2 (1) (d) of the Act defines the term "Consumer" as under: (i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or 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; or

(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}.

Though the petitioner in his affidavit has made a bald statement that he was engaged in the business of drilling/ digging bore-wells which was the only source of livelihood, he has nowhere stated in this compliant that he was carrying out the said business for means of self-employment. In fact, the counsel for the petitioner has admitted that the petitioner had employed few persons to assist him in carrying out his business.

The Apex Court in the matter of Laxmi Engineering Works Vs. P S G Industrial Institute - (1995) 3 SCC 583 had an occasion to analyse the scheme of the Act wherein Hon''ble Supreme Court while interpreting the Explanation to Section 2 (1) (d) (ii) has observed as under: "The explanation excludes certain purposes from the purview of the expression "commercial purpose" - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others''

work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition of expression "consumer". If the commercial use is by the purchaser himself for the purpose of earing his livelihood by means of self-employment, such purchaser of goods is yet a "consumer". In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self- employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasis what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words."

In Cheema Engineering Services V Rajan Singh - (1997) 1 SCC 131 Hon''ble Supreme Court has explained the term self-employment by observing thus: "Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture..... by employing himself in working out or producing the goods for earning his livelihood. ''He'' includes the members of his family."

The issue came up before the Coordinate Bench in the matter of Shakti Engineering Works Vs. Sri Krishna Coir Rope Industries - 2000 (3) CPJ 13 (NC), wherein coordinate bench has held that in order to have protection of Explanation to Section 2 (1) (d) (ii), one must establish that he himself was engaged in the activity which generates livelihood. Acting in supervising capacity would not satisfy the requirement of explanation.

From the above judgments, it is clear that complainant in order to avail shelter of Explanation to Section 2 (1) (d) (ii) is required to establish that he availed of the services exclusively for earning livelihood by way of self-employment.

The Hon''ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 has observed: "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

In view of the above, we find no merit in the revision petition warranting our interference in exercise of powers under Section 21 (b) of the Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is dismissed.