Advocate Vaishali Kulkarni for the complainant
Opponent exparte
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 10th April 2013
[1] This complaint is filed by consumer against the Whole-seller dealer of Hosiery and fabric material. The complainant has placed order of 240 T-Shirts worth Rs.31,248/-. When the material is received it was disclosed that the T-Shirts which were ordered and which were received by the complainant were of different type of material. Hence the complainant approached to the Opponent and requested for replacement of the material. In the alternative complainant asked refund of Rs.31,248/-. Opponent refused to return the money as well as replacement of goods. Hence complainant filed present complaint for recovery of Rs.31,248/- alongwith 18 % interest and compensation of Rs.50,000/- for mental and physical torture. Complainant has also asked Rs.5000/- by way of costs of proceeding.
[2] Opponent though duly served remained absent. Hence complaint proceeded exparte against the opponent.
[3] Complainant has filed affidavit in support of its contention as well as five documents i.e. bill, office copy of notice, the record from postal authority, reply of post office and written argument. The Opponent has failed to contest the matter hence proceeding is decided on merit after considering the documents as well as affidavit of the complainant. On careful scrutiny of the documents and affidavit as well as after hearing the argument of learned Advocate for the complainant following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant is consumer as defined u/s 2(1)(d) of Consumer Protection Act, 1986 ? | In the negative |
2 | What order ? | Complaint is dismissed |
REASONS-
The learned Advocate for the complainant argued before me that eventhough the complainant has purchased 240 T-Shirts worth Rs.31,248/- the complainant is consumer as the business of selling and purchasing fabric material and T-Shirts is only source of income for the complainant. Hence it should be treated that the said business is carried for livelihood and not for making profits. It is not in much dispute that commercial transactions are excluded from the jurisdiction of the Consumer Forum. The explanation of section 2 is clearly explaining that “commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment”. That means all other transactions must be treated as transactions for commercial purpose. It is true that if any hawker had purchased certain article for resale that profession does not amount to business and that is absolutely not carried for getting more and more profit but that amounts to earn livelihood by hard, toil and giving sweat and blood, it cannot be said to be commerce or commercial purpose. If any handicapped person who is doing certain profession of repairing radio or other electric material and for that purpose he had purchased implements then that transaction cannot be said to be for commercial purpose. Similarly if a wood cutter who earns his livelihood by cutting and selling woods purchases axe then axe cannot be said to be for commercial purpose. If the pleadings of present complaint minutely perused it reveals that complainant is a registered partnership firm and dealing in the business of large scale for printing and selling of T-Shirt. Complainant had purchased 240 T-Shirt worth Rs.31,248/-. It further reveals from the office copy of notice which was addressed to the opponent by the complainant that the said order was passed for purchasing plaint T-Shirt and the complainant was intending to sell those shirts after printing some material on the said plaint T-Shirt. In these circumstances it is very difficult to accept the argument of the learned Advocate for the complainant that the said transaction is carried for the purpose of earning his livelihood. Selling of 240 T-Shirts by a registered partnership firm cannot be said a small scale business and it cannot be excluded from the definition of commercial purpose. In my opinion the transaction between the complainant and the opponent is transaction for commercial purpose hence this Forum has no jurisdiction to entertain try and decide the present complaint. The complainant is at liberty to avail appropriate remedy from appropriate Forum for recovery of the amount from the opponent. I answer points accordingly and pass the following order-
:- ORDER :-
1. Complaint is dismissed.
2. As per peculiar circumstances no order as to costs.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 10/04/2013
