P Jagadeesan vs TAMIL NADU ELECTRICITY BOARD

THIS is an appeal against an order No. 28 dated 16.1.1997 in C.D.F. Case No. 11 of 1994 passed by the Birbhum District Consumer Disputes Redressal Forum at Suri. The appellant is a dealer in HMT tractor and is the proprietor of M/s. Krishi Pragati at Berhampore, Murshidabad. The respondent No. 1 purchased an HMT tractor from the appellant''s shop on 30.6.92 with Bank loan and with free service warranty of one year. The opposite party No. 1, two years after the purchase of the tractor, filed a complaint case in the Forum below against the appellant praying for several reliefs and alleging that the said tractor was defective. The appellant as opposite party entering appearance in the said complaint case in the Forum below filed a petition challenging the maintainability of the case on a preliminary point of law that the O.P. No. 1 was not a consumer as he had purchased and used the tractor for commercial purpose for earning profits therefrom. Both parties adduced documentary evidence before the Forum which heard the preliminary point of law on contest.

AFTER hearing both the parties the Forum passed the impugned order dated 16.2.1997 holding that the purchase was not for commercial purpose and that the case was maintainable before the Forum. Against the said order the opposite party No. 1 as appellant has preferred this appeal before this Commission challenging the propriety of the order. The only short point to be considered by the Commission is whether the purchase of the tractor by the respondent No. 1 was for commercial purpose and is the finding of the Forum is correct. As both parties have produced copies of the papers filed by them before the District Forum. we have taken up the hearing on the basis disposed of the question mainly on three points. Firstly, no evidence has been adduced. Secondly, it transpires from the complaint petition that the tractor was defective and thirdly, the respondent No. 1 (opposite party No. 1) has not admitted that he has let out the tractor for earning money.

WE have considered the above points with reference to the documents produced before us. Under Section 2(1)(b) of the Consumer Protection Act, 1986, a consumer means inter - alia any person buying any good for consideration paid or promised but, does not include a person who obtained such goods for resale or for a commercial purpose. The goods in this case mean movable goods. Undoubtedly, the respondent No. I/opposite party No. 1 purchased movable goods (tractor) from the appellant which he alleged to be defective. The question is if this tractor was purchased for commercial purpose ? The appellant produces a certificate issued by the financing Bank i.e. S.B.I. Sahara Branch (SAB) dated 19.6.1992 in which the respondent No. 1 admitted that he would repay the loan amount taken for purchase of the said tractor in question by letting out the same on hire against profits. He also produces receipts is ued by several hirers namely Sri Prem Chand Bagat dated

7.1992, SRI Debendra Nath Upadhayay dated 5.12.1992, SRI Anil Kr. Chatterjee dated 20.1.1993, M/s. S.S.S. Black Stone Products dated 4.9.1993 and 25.11.1993, showing that the tractor in question was let out on hire to them against money. The appellant also prod uces free service coupons showing that the tractor was used by one SRI Ajit Pramanik on 30.8.92 and 2.9.92. The appellant also produces a series of communications and correspondences with the financing Bank and the respondent No. 1/opposite party No. 1 in which the appellant categorically stated that the respondent No. 1 was not only using the tractor in question for commercial purpose, but was also using the same in a rash and negligent manner, repairing from local roadside garrages by unskilled workmen. 5. The legal controversy has arisen relating to the explanation appended to Section 2(1)(d) of the Consumer Protection Act, 1986 in which it has been explained that for the purpose of Sub - Clause(i) - "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the earning of his livelihood by means of self -employment sum of said goods. It is clear that obtaining the advantage of the explanation a consumer must use the purchased goods exclusively for the purpose of earning of his livelihood by means of self -employment. Applying these tests to the problem raised here can it be said that the complainant -respondent No. 1 purchased the tractor exclusively for the purpose of earning his livelihood by means of self -employment ? It is clear that the machine was not used for self -employment alone. The machine was let out on hire to various persons against money. Prima -facie it is not a case of self - employment. Moreover, there is no evidence of any kind to show that the machine was purchased and used for the purpose of eaming his livelihood by the purcasher. In this connection, the appellant relies on two decisions of the Apex Court reported in 1995 (3) Supreme Court Cases 583 (Laxmi Engineering Works v. P.S.G. Industrial Institute), and 1997 (1) Supreme Court Cases 131 (Cheema Engineering Services v. Rajan Singh). The Supreme Court has given illustration in 1995 (3) SCC 583 that a purchaser of a truck who purchased for plying it as public carrier means a consumer, but a person who purchased an auto -rickshaw, a car or a lathe machine or other machines to be plied or operated exclusively by another person would not be a consumer. In this case it is clear that the purpose of using the tractor was not for earning his livelihood but to make commercial gain out of it. It is needless to mention that all such cases should be decided on merits. In 1997 (1) Supreme Court Cases 131, the Supreme Court has observed that "merely earning livelihood in commercial business does not mean that it is not for commercial purpose". According to the Supreme Court the burden of proving that the purchase of the goods was not for commercial purpose lies on the person who states that he purchased the same not for commercial purpose. Here the onus lies on the respondent No. I/ opposite party No. 1. But he has failed to prove that he purchased the tractor in question not for commercial purpose. If, however, the motive is found to be both for commercial purpose and for earning livelihood, the purchaser is to show that it was for earning livelihood only. Prom the facts of this case, proved by the documents produced by the appellant we are of the opinion that the complainant in the Lower Court has failed to prove that he purcashed the tractor only for his earning livelihood and we also hold that the purchase was for commercial purpose as the complainant/respondent No. I/opposite party No. 1 in this appeal has also failed to prove his case rather the appellant has emphatically proved through document ary evidence that the purchase of the said tractor was for commerical purpose only. In our opinion, the complainant/ respondent No. 1 SRI Tuisi Pramanik was not a consumer and the decision of the District Forum in C.D.F. Case No. 11 of 1994, passed by the Birbhum District Consumer Disputes Redressal Forum, Suri is not correct.

THIS appeal is, therefore, allowed on contest. The impugned order dated 16.1.1997 passed by the Forum below in C.D.F Case No. 11 of 1994 is hereby set aside.

ACCORDINGLY , the complaint case of the respondent No. 1 Sri Tuisi Pramanik being C.D.F. Case No. 11 /94 of the Birbhum District Consumer Disputes Redressal Forum, Suri is hereby dismissed as not maintainable. Parties to bear their own costs. Appeal allowed.