Sunita Sharma vs U.S. THAKUR

THIS revision is directed against the order passed by the State Consumer Disputes Redressal Commission, Jharkhand in Appeal No. 344 of 2002 dated 23.10.2002 holding that Smt. Sunita Sharma, the complainant was not a consumer under Section 2(1)(d) of the Consumer Protection Act for she purchased a computer for business purposes.

THE case of the petitioner/complainant was that the complainant purchased a computer for educating her son and daughter after completion of education and using the same for business purposes on 17.1.2001 from U.S. Thakur, the respondent for a sum of Rs. 44,544/-. This price also included a gift of Rs. 12,995/- i.e., free speech 2000 with mike of Philips. U.S. Thakur also arranged finances from Bank of Baroda, Dhanbad, the O.P. No. 3. Accordingly, she paid Rs. 5,000/- on 17.1.2001. A Saving Bank A/c No. 12507 was also opened with O.P. No. 3, the Bank of Baroda, Dhanbad on 23.1.2001 with the margin money of Rs. 9,000/-. THE Bank of Baroda on receipt of the quotations sanctioned the loan and paid the same on 25.1.2001 to O.P. No. 1. THE computer was installed at the house of the complainant without sending the free gift items as was agreed to by the O.P. No. 1 at the time of negotiations for purchase of the commodity. Besides, he did not issue warranty or guarantee card nor any bill, challan etc. to the complainant. It was alleged that all these documents were submitted to the Bank of Baroda. After installation, the system did not work and the CPU was sent to the O.P. No. 1 and it was received back on 28.2.2001 instead of changing the same with a new one. A complaint was made to the manufacturer/O.P. No. 2. At the behest of O.P. No. 2, the complainant visited the show room with the computer. THE entire system was checked by O.P. No. 2. It was found to be defective particularly the mother board and hard-disc. THE O.P. No. 2 immediately replaced the hard disc. CPU and mother board on 10.8.2002. THE complainant alleged that the quality of computer supplied was defective and the education of the children suffered and complainant was entitled for compensation. THEre was deficiency in service in not furnishing cash memo and in non-supply of free gifts. Accordingly the complaint was filed. It was contended on behalf of O.P. Nos. 1 and 2 (respondent Nos. 1 and 2) that the CPU has been repaired. Hard disk and mother board were changed. The original bill and cash memo were sent to Bank of the complainant and the duplicate thereof were sent to the complainant for her satisfaction. It was also alleged that the complainant/petitioner had already received speech recognition C.D. on 5th April, 2001 when she purchased the computer for education purposes and not for business purpose and as such she filed a complaint.

District Forum, Dhanbad allowed the complaint and directed the O.P. No. 1 to pay a sum of Rs. 23,000/- with 14% interest thereon, compensation of Rs. 5,000/- for mental agony. O.P. No. 2 was separately directed to pay Rs. 3,000/- and the Bank was directed to pay a sum of Rs. 5,000/- as compensation to the complainant.

ON appeal, the State Commission held that there was no iota of evidence to substantiate that O.P. No. 3, Bank had even colluded with O.P. No. 1 in getting the loan sanctioned in her name. It also held that the appellant was not a ''consumer''. We have heard the learned Counsel for the parties.

IN so far as the deficiency in service on the part of the Bank, Bank of Baroda is concerned, we think that we are not supposed to interfere in this finding of fact, particularly, in view of the conduct of the complainant/petitioner in availing the loan facility by opening a Bank account. However, the view taken by the learned State Commission that the petitioner, Mrs. Sunita Sharma was not a ''consumer'' even in the meaning under Section 2(1)(d) of Consumer Protection Act, we feel that the view taken by the learned State Commission, Jharkhand was not appropriate. It may be mentioned that the complainant/petitioner purchased a computer for the purpose of education of her son and daughter and after their education, for the purpose of business. Thus, the computer was purchased for two purposes and not exclusively for business purposes. Even if it is supposed that it was purchased for the business purpose, it was nobody''s case that the complainant was not a self-employed person. It was neither a company nor an association of persons working for others. The explanation to Section 2(1)(d) exclusively exclude the persons along with explanation: "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 party 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]

The definition of the word ''consumer'' read with explanation does not exclude use by a person who bought or used goods and services availed by him "exclusively for the purpose of livelihood" by means of self-employment for the purpose of this clause within the term "commercial purpose". It may be mentioned that the term ''commercial purpose'' cannot be interpreted in isolation without its context in definition of the term ''consumer''. Intention of the Parliament appear to carve out an exception to the term ''commercial purpose'' - a loose term. The matter has become much more complex by restricting the meaning of the term ''commercial purpose'' by the explanation. The several phrases have been used in the explanation, viz., "uses by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment". The matter has to understood in phases by appreciating "commercial purpose" in the light of contemporary legislation using terms like "business agricultural" pisciculture, industrial and manufacturing purposes etc. Second phase would be to appreciate who could be a self-employed person. Third phase would relate to the point that such person exclusively uses the goods for the purpose of earning his livelihood.

IN Laxmi Engineering Works C.P., II (1995) CPJ 1 (SC), for the purpose of explaining ''commercial purpose'', the Supreme Court observed- "IN the absence of a definition, we have to go by its ordinary meaning. "Commercial" devotes "pertaining to commerce (Chamber''s Twentieth Century Dictionary), it means "connected with, or engaged in commerce, mercantile, having profit as the main aim" (Collins English Dictionary) whereas the word ''commerce'' means financed transaction of buying and selling of merchandise, on large sale" Concise Oxford Diction. The National Commission appears to have taken a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large sale for the purpose of earning profit".

THE Supreme Court in Laxmi Engineering gave few illustrations to explain its import and meaning of this exception to exception clause in following words: "Let us elaborate: a person who buys a typewriter or a car and use them for his personal use is certainly a consumer, but a person who buys a typewriter or a car for typing other work for consideration or for plying the car as taxi can be said to be using the typewriter/car for a commercial purpose''. But, this ''commercial purpose'' may or may not exclude the person who purchases a typewriter or a car for scope of the term of consumer. (Emphases supplied)

In order to further explain the concept, the Supreme Court further illustrated by giving certain examples. A person who purchases a car or a truck or a lathe machine for plying or operating it himself for earning his livelihood would be consumer.

He would continue to be consumer if such a buyer takes the assistance of one or more such persons to assist/help him in operating the machinery.

WHILE considering the definition of term ''person'' in Section 2(m) the Supreme Court observed: "We are also of the opinion that the definition of the expression ''person in Section 2(m) as including a firm (whether registered or not), a Hindu Undivided Family, a Co-operative Society or any other associations of persons (whether registered under the Societies Registration Act, 1980 or not) makes no difference to the interpretation. If a firm purchases the goods, the members of the firm should themselves ply operate or use the goods purchased. Same would be the case of purchase by Hindu undivided Family, Co-operative Society or any other Association of persons.."

Another question is what is ''him''-an individual of flesh or bone or ''extended himself-comprised of himself and would include his family members, and employees. The Supreme Court by giving various illustrations has given a ''him'' an extended wide and liberal meaning that of extended himself-by including not only family members but employees as well who help and assist him may the factory, machine. It has also included members of Society or Association and this further accepted himself meaning as extended himself-extending beyond the limits of the family.

ADMITTEDLY, this computer was not purchased for immediate commercial purpose. It was used for the educating her of the children in the house of the complainant petitioner not in the office. Consequently, it is difficult to accept the proposition on the basis of the reply that firstly it was to be used by her indirectly for exclusively commercial purpose. She would continue to be consumer so long she uses for education of her children. It is nobody''s case that this computer either was for sale nor or conversion into another end-product meant for sale but the computer was bought for the use by the complainant for the purpose of teaching her children primarily and though she stated that she would be using it for office purpose later on. It is not the case of anybody that she had a large business empire trading in such kind of machine and supposing for the sake of arguments if it is accepted that she used the computer exclusively for the purpose of earning her livelihood or for self-employment, it would not be feasible to accept this contention in the light of the meaning of term ''consumer'' as per definition with reference to the explanation to Clause (d) of Section 2 of the Act. Consequently, in the light of the judgment in Laxmi Engineering it is not possible to uphold the view taken by the State Commission. Now, coming to the second aspect relating to the amount of compensation, the brochure Annexure 1 was issued by the complainant. It appears that the sealed computer was installed in House, 14, UG, Urmila Tower, Bank More, Dhanbad on 17.1.2001 and it also indicated advance of Rs. 5,000/-. This brochure Annexure-1 indicated that along with Vintorn the computer, Philips free speech 2000 with mike worth Rs. 12,995/-. Heritage holiday for 2 nights and 3 days, and 3 months unlimited usage internet connection from Satyam, 4-CD Roms; Encyclopedia, bag etc. were also to be provided as free bees. In so far as 4 CD Rom are concerned they are said to be integral parts of the CPU, CD bag had been admittedly received by the petitioner along with UPS. It is not claimed that for three months the petitioner has not used the internet connection. The only thing which has not been given is the free speech with mike which has not been mentioned in the quotation. This statement cannot be accepted for two reasons: Firstly, the brochure was given just a week before from the purchase followed by actual opening Bank A/c and finances by O.P. No. 3. Secondly, the claim of speech recognition C.D. had already been received by the complainant on 5.4.2001. Learned Counsel for U.S. Thakur, the respondent claimed firstly, it was not required to be given and secondly what was to be given was already given. The finding of the District Forum, the stand of the O.P./respondent, does not appear to be reliable in view of contradiction. Accordingly, it would not be accepted. Therefore, the respondent No. 1 is liable to pay Rs. 12,995/- for non-supply of free speech recognition and 7,000/- with mike and is also supposed to Heritage holiday for 2 nights and 3 days. Probably, considering the Heritage holiday for 2 nights and 3 days. District Forum awarded compensation of Rs. 23,000/-. Seeing the entire price of the computer, amount required Rs. 2,500/- towards visit to a place of heritage with it, in all the complainant could claim a sum of Rs. 15,495/-. As regards replacing the computer, the necessary repairs/replacement etc. had already taken place. Secondly, the complainant was entitled to only above amounts from respondent No. 1. However, the complainant/petitioner is also entitled to recover an amount of Rs. 2,000/- compensation for mental agony and harassment for the inconvenience caused due to non-working of the computer. The complainant shall also be entitled to recover interest @ 9% on the above amount with effect from the date of complaint i.e., from 31.1.2001 till the payment. The revision petition is allowed, accordingly. R.P. allowed.