Pawan Vs. Maman Chand                    189/2018

Present:         Sh. Anil Sharma, Advocate  for the complainant.

                        Sh. A. Sardana, Advocate for  OP no.1.

                        OP no.2 exparte.

ORDER

            Vide this order, we shall dispose of an application dt. 14.08.2020 of applicant/OP no.1 seeking dismissal of the complaint being not maintainable as complainant is not consumer of the OPs.

           Notice to the application was given to the complainant who opposed the same by filing reply.

          As per counsel for the applicant, it is the case of complainant that he had purchased the welding set for commercial purpose i.e. for welding work in his factory, Giriraj Polymer, Loharu Road, Bhiwani and not for personal use. Therefore, complainant does not come with the definition of consumer. Hence, complaint deserves to be dismissed.

          Whereas in reply to the application complainant has nowhere denied the averment that welding set was not purchased for welding work for his factory, though prayed for dismissal of the application stating  that complainant is consumer of  the OP no.1.

           Complainant/applicant has filed this complaint on 19.12.2018 stating that he is proprietor of Giriraj Polymer, Loharu Road, Bhiwani and for the purpose o welding work in the said factory he has purchased a welding set of HD Brand for a sum of Rs.7500/- on 22.05.2018 who had given a six month warranty of the welding set but welding set was not working properly since started and ultimately it totally stopped the work and becomes a useless product for complainant.

          That matter was reported to the OPs and requested to repair or to replace th welding set but despite repeated request OPs did not pay any heed.

          Complainant did not mention in complaint on which date the welding set not found working properly, photocopy of welding set is placed on record which reveals that the warranty of the welding set was given for 6 months from the date of its purchase, but the question here is not limitation but as to whether complainant is consumer of the OPs or not.

Definition of consumer is prescribed in Section 2 (i) (d) of the Consumer Protection Act, 1986 which is reproduced here 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 included 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 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;

                    From  a bare reading of the above language of consumer, it is clear that person(s) availing services for commercial purpose do not fall within the meaning  of “consumer” and cannot be a complainant for the purpose of filing a complaint before the consumer forum.

                        Complainant has taken a plea in his complaint that the said welding set was purchased for welding work in his factory. There is no averment of the complainant that the welding set was being used by him to earn his livelihood and not for commercial purpose. As per Section 2(1)(d) it is clear that  if the product is purchased for resale or for commercial purpose then the said buyer does not fall within the definition  of consumer.

                        Thus, it is clear that the welding set was purchased for commercial purpose not for personal use to earn his livelihood by complainant. Thus complainant is not a consumer as defined in Section 2(1)(d) of the Act.

                        The very objection of the Consumer Protection Act, 1986 is to protect the interest of consumer from service provider/seller or to promote protect and enforce their rights from unfair trad practices and not to protect the interests of businessmen.

                        As the act of complaint do not fall within the meaning of  “complaint” as described in Section 2(1)(c) of the Act and therefore complaint against OP is not maintainable before this Forum/Commission, hence complaint stands dismissed being not maintainable and application of applicant stands allowed. However, complainant is at liberty to avail remedy if available him under the law. File be consigned to the record room after due compliance.

          Member                            Member                  President,

                                                                                  DCDRC, Bhiwani.

                                                                                                24.08.2022