Vinod Jain vs MANAGER, RAVI FROSTREFRIGERATION INDUSTRIES

THIS appeal is concluded in favour of the appellant by the recent order of this Commission in Complaint Case No. 94 of 1992 ''Dr. Mrs. Kusum Bakhshi Ahlawat v. Mr. G.P. Singh, Manager, Administration & Others'' , II (1993) CPJ 1135 decided on 11th of May, 1993.

FOR the limited purpose of remanding the case for a trial on its merits, it suffices to mention that the appellant has been non-suited on the threshold ground of being not a consumer within the meaning of its definition under the Act. The basic and the unrebutted plea of the complainant-appellant was that he was running a small shop of cold drinks, pan, cigarette and confectionary situated at Railway Road, Narwana. On the canvassing of the respondent-concern, he purchased a refrigerator cooling machine for soft drinks etc. from the respondents at a price of Rs. 12,000/- odd which was alleged to be somewhat excessive. It was the case that the said equipment was out-dated machine and wholly defective and despite repeated complaints to the supplier, the same was neither replaced nor repaired, thus causing a loss of Rs. 30,000/- to the appellant. N Notice beiNg issued, the respoNdeNts iN their reply took up a prelimiNary objectioN to the effect that the appellaNt was Not a coNsumer because the purchase has beeN made for a commercial purpose. Other pleas were takeN oN merits as well, but thereafter the respoNdeNts chose to treat the proceediNgs cavalierly aNd refused to put iN further appearaNce aNd were coNsequeNtly proceeded agaiNst ex-parte.

He District Forum noticed tHe firm plea of tHe appellant that He was a petty shop-keeper virtually running a booth for cold drinks, pan and cigarettes for eaking out a livelihood tHerefrom and was in no way a large scale business which could be brought within tHe label of a commercial purpose. However, without adverting to tHe matter in depth, tHe District Forum came to tHe summary conclusion that by virtue of tHe definition under Section 2(1)(d), tHe appellant was not a consumer and tHe complaint was consequently not maintainable and dismissed tHe same.

R. C.L. ShaRma, the leaRned Counsel foR the appellant has Rightly highlighted that the pRoceedings against the Respondent having been viRtually not defended, theRe was nothing whatsoeveR to Rebut the fiRm stand that the appellant was a small time booth owneR who was eaRning his livelihood by selling cold dRinks, pans and cigaRette etc. in a small town like NaRwana. Without citing any pRecedent, on pRinciple it was submitted that a peRson of the appellant categoRy cannot come within the exclusion clause of a puRchase foR a commeRcial puRpose. The submission aforesaid is now patently meritoreous. The identical question had come up for consideration even in the larger perspective before us in ''Dr. Kusum Bakhshi Ahlawat v. Mr. G.P. Singh, Manager, Administration & Others'' (supra). Therein the subject matter of purchase was an ultra-sound diagnostic scanner of the value of Rs. 2,80,000/- purchased for professional purposes and an identical objection that the same was for a commercial purpose was raised by the opposite party. On an indepth consideration of the matter and noticing a distinct shift in approach by the National Commission in its recent precedent, it was held as follows :- " To conclude, the answer to the question posed at the outset is rendered in the negative and it is held that a self-employed medical professional purchasing equipment for his clinical requirements would not come in the exclusion clause of a purchase for a commercial purpose.

IT would be somewhat manifest that the aforesaid ratio is doubly attracted in the context of a small booth owner earning his livelihood by selling soft drinks, pans and cigarettes etc. This apart, there is equally the binding precedent of the National Commission in I (1992) CPJ 140 (NC), ''The Secretary Consumer Guidance & Research Society of India v. Mis BPL India Limited'' wherein Mr. V. Balakrishna Eradi, J. speaking forthe Commission has observed as under:- "In the case now before us it is clearly established by the materials on record that the purpose of the purchase of the paper copier by Mrs. Shanta Manuel was only to enable to eam her livelihood by the process of self employment. Suchbeing the factual position Mrs. Shanta Manuel caimot be said to have purchased the machine for a ''commercial purpose'' in as much as the basic prerequisite of large scale trading or business activity for purpose of making profit is totally absent." Applying the aforesaid ratio, it is manifest that the appellant herein would fall squarely within the ambit of the definition of a consumer, and the District Forum was in error in non-suiting him on the ground of non-maintainability of his complaint. We are consequently, constrained to set aside the order of the District Forum with the direction that the case may now be tried on its merits after affording a full opportunity to the appellant to establish his pleas. Order set aside.