Dated 30.04.2024

As per Sanjay Kumar, President.

O r d e r

1. Present appeal has been filed on behalf of appellant/complainant for setting aside the judgment and order dated 29.03.2017 passed in complaint case no. 61 of 2015 passed by learned District Consumer Forum, Gopalganj whereby and whereunder complaint case has been dismissed.
2. Briefly stated the facts of the case as disclosed in complaint petition is that complainant purchased Tata Magic on payment of Rs. 2,58,000/- from opposite party no. 1 which was financed by opposite party no. 2.
3. The loan amount was to be repaid in 35 monthly installments and complainant paid all the monthly installment. Complainant on 30.07.2013 paid Rs. 53,000/- as last installment. Complainant paid total amount of Rs. 3,74,500/-.
4. Opposite parties assured complainant that NOC with respect to vehicle would be send by post but NOC was never send. Complainant thereafter send legal notice but no response was received from opposite parties as such complainant filed consumer complaint case for grant of NOC as well as payment of compensation of Rs. 1 lac for physical and mental harassment and pecuniary loss upon which notices were issued to opposite parties.
5. Opposite party no. 1 appeared and filed its written statement stating therein that he is authorized dealer of Tata Motors and there is no complaint made against him.
6. Opposite party no. 2/finance company did not appear even after valid service of notice.
7. The District Consumer forum after hearing the parties and considering the materials available on record held that complainant had purchased vehicle for commercial purpose and as such he does not come within the definition of consumer and dismissed the complaint case as not maintainable. Aggrieved by which present appeal has been filed on behalf of complainant.
8. Heard Ld. counsel for the appellant as well as Ld. counsels for the respondent no. 1 and respondent no. 2.
9. It is submitted on behalf of appellant that appellant is a consumer under the Consumer Protection Act as he had purchased the vehicle for purpose of earning his livelihood by means of self employment.
10. The only issue to be decided in this appeal is whether appellant is a consumer and complaint case was maintainable before the District Consumer Commission or not.
11. It is now well settled law that if commercial use is by purchaser for the purpose of earning his livelihood by means of self employment such purchaser of goods would be a consumer.
12. There has to be assertion made in complaint petition that although vehicle was purchased for commercial purpose but was purchased for earning livelihood by means of self employment. However, there is no such averment made in the entire complaint petition. There is specific finding of District Consumer Forum that there is no evidence or material placed on record by complainant that vehicle was purchased by him for earning his livelihood by means of self employment.
13. Apex court in case of Rohit Chaudhary Vs. M/s Vipul Ltd. 2024 (1) SCC-8 has held that pleadings in complaint petition to the effect that purchase made was to earn livelihood by way of self employment is necessary being question of fact to be decided by Commission on the basis of evidence and pleading of parties. Relevant paragraph no. 12 is reproduced below:-

12.     The expression 'commercial purpose' has not been defined under the Act. In the absence thereof we have to go by its ordinary meaning. 'Commercial' denotes "pertaining to commerce" (chambers 20th Century dictionary); it means 'connected' with or engaged in commerce; mercantile; "having profit as the main aim" (Collin's English Dictionary); relate to or is connected with trade and traffic or commerce in general, is occupied with business and commerce.

The Explanation (added by Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance of 24 of 1993 w.e.f. 18.06.1993) excludes certain purposes from the purview of the expression 'commercial purpose'- a case of explanation to an exception to amplify this definition by way of an illustration would certainly clear the clouds surrounding such interpretation. For instance, a person who buys a car for his personal use would certainly be a consumer, but if purchased for plying the car for commercial purposes namely as a taxi, it can be said that it is for a commercial purpose.

However, the Explanation clarifies that even purchases in certain situations for 'commercial purposes' would not take within its sweep the purchaser out of the definition of expression 'consumer'. In other words, if the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods would continue to be a 'consumer'. This court in the case of Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers (supra), has held that a straight jacket formula cannot be adopted in every case and the broad principles which can be curled out for determining whether an activity or transaction is for a commercial purpose would depend on facts and circumstances of each case.

Thus, if the dominant purpose of purchasing the goods or services is for a profit motive and this fact is evident from record, such purchaser would not fall within the four corners of the definition of 'consumer'. On the other hand, if the answer is in the negative, namely if such person purchases the goods or services is not for any commercial purpose and for one's own use, it cannot be gainsaid even in such circumstances the transaction would be for a commercial purpose attributing profit motive and thereby excluding such person from the definition of 'consumer'.

When there is an assertion in the complaint filed before the Consumer Court or Commission that such goods are purchased for earning livelihood, such complaint cannot be nipped at the bud and dismissed. Evidence tendered by parties will have to be evaluated on the basis of pleadings and thereafter conclusion be arrived at. Primarily it has to be seen as to whether the averments made in the complaint would suffice to examine the same on merits and in the event of answer being in the affirmative, it ought to proceed further.

On the contrary, if the answer is the negative, such complaint can be dismissed at the threshold. Thus, it would depend on facts and circumstances of each case. There cannot be any defined formula with mathematical precision to examine the claims for non-suiting the complainant on account of such complaint not falling within the definition of the expression 'consumer' as defined under Section 2(1)(d).

14. In said view of the matter, appeal lacks merit and is accordingly dismissed.  

         (Ram Prawesh Das)                                                                               (Sanjay Kumar,J)

                Member                                                                                                President

Md. Fariduzzama