M/S. V.T. SWITCHGEARS & TRANSFORMERS vs M/S. RNS AUTOMOBILES

This revision is directed against the order of the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, "the State Commission) dated 15.2.2012 in appeal No.36/2012 whereby the State Commission dismissed the appeal preferred by the petitioner/opposite party at the stage of admission.

Briefly put, facts relevant for the disposal of the revision petition are that the respondent/complainant filed a consumer complaint against the petitioner alleging deficiency in service in respect of transformer purchased by him from the opposite party which developed defect immediately after commissioning. According to the respondent the opposite party has failed to rectify the defect or refund the consideration amount alongwith other expenses incurred for installation of transformer and repair of the same.

The petitioner/opposite party resisted the complaint by filing written statement. Besides denying the plea of the complainant on merits, the petitioner took preliminary objection that the complaint itself is not maintainable because the respondent is not a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 ( in short, the Act).

Learned District forum on appraisal of the pleadings and the evidence allowed the complaint and directed thus: - "The OP is directed to refund a sum of Rs.1,81,526/- received under invoice No.149, dt. 22/11/2010 towards the cost of transformer and to pay a sum of Rs.85,000/- towards the expenses incurred by the complainant at the hands of OP and a sum of Rs.300/- as compensation alongwith a sum of Rs.1,000/- towards the cost of the litigation within one month from the date of receipt of copy of this order. Failing to comply the order, the OP shall pay an interest @ 6% p.a. on the amount of Rs.2,66,526/- (Rs.1,81,526/- + Rs.85,000/-) from the date of this order till realization."

Being aggrieved of the order of the District Forum, the petitioner preferred an appeal before the State Commission and the State Commission vide impugned order dismissed the appeal in limine . This has led to filing of the revision petition.

Learned counsel for the petitioner has assailed the impugned order on the ground that the Foras below have committed grave error in failing to appreciate that the transformer in question was admittedly purchased by the respondent in relation to a commercial purpose i.e. for installation at his commercial unit and as such he is not a consumer as defined under Section 2 (1) (d) of the Act. It is contended that on this count alone the impugned order is liable to be set aside.

Learned counsel for the petitioner on the contrary has argued in support of the impugned order.

In order to appreciate the contention of learned counsel for the petitioner, it would be useful to have a look on the definition of the consumer as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986, which reads as under: - "(d) "consumer" means any person who-

(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 purposes ; 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.

On reading of the above, it is clear that consumer is a person who purchases goods for consideration but does not include the person who buys the goods for commercial purpose. The explanation to the section carves out an exception by providing that if the goods are purchased for earning livelihood by way of self-employment, it shall not be treated as the commercial purpose.

The petitioner complainant has neither pleaded nor led any evidence to show that he had purchased the subject transformer exclusively for the purpose of earning his livelihood by means of self employment. The sole question which needs answer in this revision petition is whether or not the transformer was purchased for commercial purpose? If the answer to this question is in the affirmative, then of-course, the petitioner is not a consumer for the purpose of the Act and the consumer complaint filed by him is not maintainable.

Learned counsel for the petitioner has contended that State Commission has committed a grave error in failing to appreciate that the subject transformer was purchased in order to fulfill the requirement of the electricity supply company for getting electricity connection for the unit of the complainant. It is contended that the State Commission failed to appreciate that the District Forum rightly held that there was no direct nexus between the purchase of transformer and earning profit by running a unit. Thus, it is urged that the impugned order of the State Commission be set aside and the order of the District Forum be restored.

We do not find merit in the contention. Admittedly, complainant had purchased the transformer to ensure power supply to his new service station as per the electricity company norms. Thus, it is clear that the transformer was purchased in relation to commercial purpose i.e. providing the electricity to the unit which was essential component to run the service station. Thus, in view of the exception provided in Section 2 (1) (d) (i) & (ii), the respondent is not a consumer particularly when it is not the case of the complainant that he falls within the exception to Section 2 (1) (d) which gives restricted definition to the term "commercial purpose."

In view of the discussion above, there is no doubt in our mind that the respondent is not covered under the definition of consumer. Since he is not a consumer, he could not have maintained the consumer complaint. Therefore, the impugned orders cannot be sustained.

In the result, revision petition is allowed, orders of the foras below are set aside and complaint is dismissed.