1.          Being aggrieved by the judgement and order of Additional  District Consumer Redressal Commission ,Nagpur  in Consumer Complaint No. 182/2020 dated 09/07/2021,the appellant Ranjan Ramesh Deolasi  has filed this appeal.The appellant is the Complainant  in the Consumer Complaint and the respondent Kamdhenu Agro Machinery is the opponent.    The parties are herein after referred to as per their status in the Consumer complaint and the District Consumer Dispute Redressal Commission is referred to as District Commission for the sake of convenience.

2.          It is the case of complaint that he is resident of Ladpura, Itwari area in Nagpur city. He holds agriculture land in Gat number 356 in village Khursapar (Rithi ) in Kalameshwar Tahsil of Nagpur District,at distance of 48 kilometres from Nagpur city. In the said land there are 350 trees of Charoli. The land is irrigated one having irrigation facility through well and two bores. There are four rooms and shade for the labourers and storing the agriculture produce. The Complainant inquired with the opponent for decorticating machine for processing charoli obtainable from his plantation and proposed purchasing of  charoli from other farmers. The opponent, manufacturer of machine, gave quotation of Rs 1.36 lakhs forp the decorticating machine with 3 HP motor with grader.He paid Rs 25,000/- on 11/05/ 2018 and Rs 1.0 lakh on 11/06/2018.Opponent supplied the machine to the Complainant on 11/06/2018 and it was tested , however the machine was not performing properly and it gave the  broken and crushed charoli.Therefore, the Complainant  returned the machine to the opponent in July 2018.The opponent assured of the repairs of the machine, however neglected to do so.The Complainant sent him two  notices on 24/12/ 2019 and on 13/01/ 2020 asking the opponent to refund the amount of Rs. 1.25 lakhs with 24% interest.It is contended by the Complainant that he was required  to file the Consumer complaint as the opponent did not give response to the said notices. Complainant filed Consumer complaint seeking the directions from the District Commission  for payment of Rs 1.25 lakhs with 24% interest by keeping the machine with the opponent with 2 lakhs for compensation  and Rs. 25,000/- towards cost of litigation and directions to pay Rs 200 per day if order of District commission is not complied  by  the opponent within 30 days.

3.       The opponent Kamdhenu Agro Machinery  submitted written  statement through proprietor /owner Mahesh Hatwar before the District Forum and denied the rival allegations. However , the opponent admitted purchase of decorticating  machine by the Complainant and payment of Rs.1.25 lakhs to him and supply of machine to the Complainant by him on10/ 06/2018.It is further contended that machine was performing well and demo of operation was given to the servants of the Complainant. It was also contended that the Complainant himself brought the machine to the opponent requesting purchase by the opponent after deduction for the use of the machine by the Complainant .However, the opponent informed the Complainant that after deducting 60% cost of the machine , it be sold out. Complainant has not taken back the machine to his field .It is further contended that the Complainant is not their Consumer and he has also used the machine for one and half years for commercial purpose and there is no deficiency on their part.

4.             The District Commission dismissed the Consumer complaint observing that Complainant is not covered within the definition of Consumer and he has purchased the machine for commercial purpose. It is also observed that Complainant failed to prove that he has purchased the machine for self employment and failed to established that he engaged only one or two labourers.

6       Being aggrieved the Complainant   has filed this appeal.

7.      Ld.Advocate Mishrikotkar appeared for the Complainant/appellant .Ld.Advocate Khaparde appeared for the opponent.

8.      After hearing respective submissions of the parties, following points arose for our determination. We have noted them and answered them  for the reasons to follow.

                           Points                                                                      Answers

(i)Whether the Complainant establish that he is

    the Consumer of the opponent?                                         In affirmative

(ii) Whether there requires interference in the

      order of District forum?                                                      In Affirmative

(iii) What order?                                                                    As per final order

REASONING

Points 1, 2 and 3

REASONING

9          Advocate Shri Mishrikotkar argued for the Complainant that District Commission did not appreciate the facts as to Complainant being Consumer .The Complainant has purchased the machine for processing of charoli from the trees of bis field and by purchasing of raw charoli from others. It is allied agriculture activity only,just to support his agriculture business in the style of supplementary working ( जोडधंदा).Though ,the machine is purchased, it was not performing properly. It was giving broken and crushed product .Hence, it was returned to opponent for repairs. The Complainant could not process any quantity and not earned a single rupee from the working of said machine. The cost of machine is only Rs. 1.25 lakhs, it is not expected that huge income will be received from the machine to Complainant  from the said machine. Therefore, it cannot be said that Complainant has purchased the machine for commercial purpose. The District Commission has erred to arrive to this conclusion that Complainant is not a Consumer. On this count only, the matter requires to be remanded back to the District Commission.

 To support his contention that Complainant is Consumer, the ld. advocate relied upon the following citations.

(i) National Consumer Disputes Redressal Commission in Punjab tractors Limited versus Hamam Singh and another, IV (2005) CPJ 74 NC wherein the Hon National Commission has observed that one has to consider distinction between the different terms, commercial ,industrial, agricultural, etc. which are being simultaneously used in various enactments. Since, it is not meant for resale, it could not be said to be a commercial purpose.

(ii)National Consumer Disputes Commission in Bhupendra Jung Bahadur Gurna Vs the Regional Manager and Others in First Appeal 84 of 1993 decided on 28/04/1995, II (1995)CPJ 139 where in the Hon National Commission has observed that,

    “the primary objective of the Complainant in purchasing the tractor work not to make profits by the tilling the lands of others but was to till  his own lands to maintain his livelihood. It is the consistent view of this Commission that when an activity is carried on a large scale to earn profit only then the purpose can be said to be a commercial purpose.”

(iii)National Consumer Dispute Redressal  Commission in Shree Shakti Foams vs Canara Bank  in First Appeal 756 of 2018, decided on 30/10/2019, reported as 2020 (1)CPJ 193 where in the Hon National Commission has observed that,

 “Even if Complainant has not maintained fact of earning livelihood by means of self employment in complaint but Complainant has also not expressly mention any other purpose for purchasing goods or availing  services in complaint,then inference cannot be drawn that goods were purchased or services were avoid for any commercial purpose”

(iv) National Consumer Dispute Redressal  Commission in Mohd.A.M.Abdel Karil vs University of Delhi, IV 2007 CPJ 300 wherein the Hon National Commission has observed on Maintainability  that, “once complaint is admitted and subjected to reply/ rejoinder/ evidence  has to be decided on merit. Rules/ orders governing pleadings as contemplated under CPC not applicable in proceedings under Consumer Protection Act.”

(v)State Consumer Dispute Redressal Commission,Mumbai ( Nagpur Bench)  in Ku.Vaishali Mohan Khanna versus Bajaj Auto Limited and others in appeal number 162/ 07 decided on 3/8 /2007 where in the Hon. Commission has observed that, the cited case law has not been referred to nor any finding is given whether they are applicable to the facts or not. In view of these facts, we think that this is a fit case for remand.

         It is further argued that, the Complainant has returned the machine to the opponent for repairs immediately in July 2018 only. However, the opponent has not paid any heed for repairing. The Complainant has not returned the machine to the opponent for resale purpose. The opponent is wrongly taking this defence. It is also argued that commissioner was appointed by the District Commission who has submitted his report. The District Commission failed to discuss on the observations of the Commissioner. He concluded to remand the matter to District Commission.

10.            Advocate Khaparde argued for the opponent that Complainant has come for purchase of a special type machine for commercial purpose. The machine was supplied to his site and demonstration was given. He has used the machine for almost one and half years and earned huge profit. He has returned the machine to the opponent when he found that he is not getting expected profit and wanted to resell the machine through opponent. There is no deficiency on the part of opponent. The District forum has rightly appreciated the facts and dismissed the complaint, there requires no interference in the order of District Commission.

11. Discussion

             We have gone through the impugned judgment and order of District Commission. It reveals that the District Commission dismissed the Consumer complaint filed by the Complainant on the ground that Complainant is not a Consumer. District Commission observed that there is defence by the opponent that Complainant is not their Consumer. The District Commission further observed that Complainant is not only processing charoli of his field but also purchasing charoli from others for commercial purpose. District Commission observed that a person taking help of one or two persons for earning livelihood in business can be said to be  self employment. Therefore,  Complainant is under obligation to satisfy on this point. However, he has failed to adduce evidence on this point.

          Thus it reveals that District Commission has dismissed the complaint only on the point that Complainant is not covered under the definition of “Consumer” under the Consumer Protection Act,1986. It reveals that the complaint is filed under the new Consumer Protection Act,2019. However ,the District Commission  applied the definition Consumer from the old Act. Though, there is no material difference between the definitions of Consumer under both the Acts.However, in our opinion, the District Commission  failed to apply the applicable Act at the relevant time.

           It reveals that the cost of machine is only 1.25 lakhs.The Complainant has himself pleaded in the complaint that there are 350 charoli plants in his field and he intended to process the charoli from his field. Apparently, it is also pleaded in the complaint that he wanted to process the charoli by purchasing from other persons also. Purchasing of charoli from other persons and processing it after his own  produce cannot be said to be a commercial purpose. It is just a supplementation to his income. Moreover, the machine appears to be small or of medium range considering the cost of the machine. There is no evidence before the District Commission that the machine was processing certain quantity of charoli in a day and in a season that gives huge earning to Complainant. Though, the opponent contended that the Complainant returned the machine to him for the purpose of resale. However, there is no documentary evidence to establish this contention. the ld. Advocate of the Complainant relied upon certain citations of National Commission as referred in para 9 of this judgement. In view of these citations, we are of the opinion that Complainant is covered under the definition of Consumer under the Consumer Protection Act 2019.Therefore ,the impugned judgement of Additional District Consumer Commission requires interference. In our opinion, when it is  once established that Complainant is Consumer, his complaint needs to be looked into  appreciating the facts and law. Therefore, after allowing the appeal matter needs to be reminded back to District Commission for deciding the Complaints case on merits considering the facts and law . Hence the order..

ORDER

1. Appeal is hereby partly allowed .
2.  Matter is hereby reminded back to the learned Additional District Consumer Commission , Nagpur. learned Additional District Consumer Commission , Nagpur is hereby directed to decide the complaint afresh by giving due opportunity to both the parties and to dispose of the same as per law.
3.  No order as to cost.
4.  Inform parties.