Instant complaint has been filed jointly by Kamal Kumar Jain and Sunita Jain alleging deficiency in service on the part of the opposite party builder/developer in respect of office space booked by them in the project undertaken by the opposite party at 15, Shivaji Marg, Najafgarh, West Delhi. In the body of the complaint it is alleged by the complainant that the said office space has been booked exclusively for the purpose of earning livelihood by means of self-employment. Section 2 (1) (d) of the Consumer Protection Act, 1986 defines the term consumer which reads 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 includes 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 purposes; 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; On reading of the above, it is clear that consumer is a person who buys goods or hires or avails of services for consideration. However, the section itself carves out an exception by providing that if the goods have been purchased for commercial purpose or the services have bene hired/availed for commercial purpose, the person concerned would not be consumer for the purpose of Consumer Protection Act, 1986. It is pertinent to note that explanation to the section gives a restricted meaning to the term “commercial purpose” which provides that if the goods have been purchased or services have been hired or availed exclusively for the purpose of earning livelihood by means of self-employment, then the purpose for purchasing of goods of hiring of services would not be treated as commercial purpose. During the course of arguments, on our query learned counsel for the complainants had stated at bar that complainants are in the business of finance and they had booked the office space with the intention to set up their finance office. It is also stated at the bar by learned counsel for the complainants that for the purpose of their finance business the complainants have hired ten employees. Hon’ble Supreme Court has dealt with the interpretation and scope of explanation to Section 2 (1) (d) of the Act in the matter of Lakshmi Engineering Works vs. P.S. G. Industrial Institute (1995) 3 SCC 583. Relevant portion of the judgment is reproduced as under: - “The explanation excludes certain purposes from the purview of the expression "commercial purpose" - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition o expression "consumer". If the commercial use is by the purchaser himself for the purpose of earing his livelihood by means of self-employment, such purchaser of goods is yet a "consumer". In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self- employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illus- trations would serve to emphasis what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words. On reading of the above, it is clear that had the complainants entered into builder-buyer agreement for commercial space with the intention to use the same for earning their livelihood by running financial office on their own or with the help of one or two persons, they would have been covered under the explanation but in the instant case as per the facts stated by learned counsel for the complainants at the bar the complainants presently are running their finance business with the help of 10 hired employees. Therefore, it is not a case of using skelton staff for running a financial business. Therefore, I am of the considered view that this is a clear case in which the services of the opposite parties have been hired by the complainants for commercial purpose. The complainants, therefore, do not fall within the definition of a consumer. As a consequence, the complainants have no locus standi to maintain the consumer complaint. Complaint is accordingly rejected. This, however, shall not prevent the complainants from availing their rights by approaching the Civil Court on the same cause of action. |
