KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 335/2016

JUDGMENT DATED: 12.01.2023

(Against the Order in C.C. 873/2013 of CDRF, Ernakulam)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN              : PRESIDENT

SRI.RANJIT. R                                                                             : MEMBER

APPELLANT:

Shaji Varghese, Proprietor, Jose Electrical Agencies, Arakunnam P.O., Ernakulam-682 313.

                                       (By Adv. Tom Joseph)

                                                Vs.

RESPONDENTS:

1. M/s Honda Siel Power Products Ltd., 2^nd Floor, Holy Tuesday Complex, Kaloor, Kochi-17

(By Adv. S. Prasanth)

2. M/s Melamparambil Agencies, Opp: Manorama, Sahodaran Ayyappan Road, Kochi-16.

JUDGMENT

SRI.RANJIT. R: MEMBER

Aggrieved by the order of dismissal of his complaint by the Consumer Disputes Redressal Forum, Ernakulam, in short the District Forum, in C.C. No. 873/2013 dated 24.11.2015 the complainant has preferred this appeal.   The District Forum dismissed the complaint holding that the complaint was not maintainable. 

2.  The case of the complainant, in brief, is that complainant is the proprietor of M/s Jose Electrical Agencies, Arakkunnam.  He is engaged in the business of renting out generators for earning his livelihood by means of self employment.  He purchased a Genset 2800 VP Honda EU 30 NIS from the 2^nd opposite party for an amount of Rs. 80,200/- on 07.11.2012.  The machine was provided with one year warranty.  During May 2013 the Genset became faulty.  The matter was brought to the notice of the 1^st opposite party, the manufacturer and as directed by them it was entrusted for repairs on 24.09.2013 to the 2^nd opposite party.  The 2^nd opposite party demanded Rs. 20,000/- towards repairing charges even though the defects occurred within the warranty period and thus it had inherent manufacturing defect.  Due to the defect, the complainant could use it only for 30 hours. Hence he filed the complaint seeking refund of the price of the machine along with interest @ 12% per annum along with compensation of Rs. 50,000/- and the costs of the proceedings. 

3.  The 1^st opposite party filed version raising the following contentions.  The complaint is not maintainable and the complainant is not a consumer within the meaning of Sec. 2(1)(d) of the Consumer Protection Act.  The complainant had availed the services of the opposite party for commercial purpose since it is averred in the complaint that the complainant was doing his business by renting out generators purchased for that purpose.  The complainant is the proprietor of Jose Electrical Agencies, substantially a big commercial establishment.  His major business activity is in dealing with electrical goods.  Renting out generators is not a source of livelihood of the complainant.  The complainant is a sub dealer and not a consumer.  The complainant did not purchase the above said Genset bearing Engine No. 1007701 and Frame No. C 12003956 on 07.11.2012 from the 2^nd opposite party as per the invoice.  The owner of the genset was shown as Canara Bank, Perumbavoor Branch.  No warranty was provided by the 1^st opposite party in respect of the said Genset as claimed by him.  The complainant did not purchase any genset from the opposite party on 29.12.2012 as alleged.  The first free service ought to have been done not later than one month from the date of purchase or 20 operational hours whichever is earlier.  The second free service ought to have been done not later than 90 days from the date of purchase or 50 operational hours whichever is earlier.  The third service has to be done not later than 180 days from the date of purchase or 100 operational hours whichever is earlier.  The genset in question was repaired and serviced by local mechanic and not by a trained person from the opposite party.  The genset was not repaired as per the service instructions and therefore the warranty clause is not applicable.  The genset in question has been in the use of M/s Canara Bank for more than 6 months and it has to be operated for 74 hours.  The genset was serviced on 28.04.2012 by a local mechanic and the second service was done with the opposite party on 10.05.2013 at the premises of the Canara Bank.  The opposite party is not liable for any injury or damage caused to the genset due to lack of proper maintenance and service.  There was no inherent manufacturing defect for the genset supplied by the opposite party.  There is no deficiency in service on the part of the opposite party.  Complainant is not entitled to get any refund or compensation and costs as prayed for.  Hence 1^st opposite party prayed for dismissal of the complaint. 

4.  The 2^nd opposite party did not appear and contest the matter. 

5.  The evidence consists of oral testimony of complainant as PW1 and his documents marked as Exts. A1 & A2.  The authorized representative of the opposite party gave oral evidence as DW1 and their documents were marked as Exts. B1 to B4.  The District Forum on the basis of the evidence adduced and after hearing both parties found that the complainant was not a consumer as defined under Sec. 2(1) (d) of the Consumer Protection Act, since the complainant was performing a commercial activity in renting out the generator set.  The District Forum on the basis of this finding dismissed the complaint as not maintainable.

6.  The learned counsel for the appellant contended that the complainant is running a shop of renting out generator sets for earning his livelihood by means of self employment.  This aspect was not even challenged by the opposite party during cross examination of the complainant.  The complainant has clearly deposed that he was running the shop without any assistance of any employee.  No evidence was adduced by the opposite party by way of oral or documentary to substantiate their contention of commercial activity.  The District Forum erred in finding that the complainant was not a consumer and the transaction was a commercial transaction.  The District Forum mainly relied on Ext. A2 to establish that the complainant was conducting a commercial establishment and was having Sales tax Registration and therefore the business done by the complainant was a commercial activity.  The learned counsel pointed out that Ext. A2 is not that of the complainant.  It was that of the 1^st opposite party and from Ext. A2 document it is clear that it was the 1^st opposite party who had registration of the Sales Tax Authorities.  Therefore, the learned counsel for the appellant contends that the complainant is a consumer and the finding of the District Forum that the complainant was not a consumer is wrong and prayed for allowing the appeal setting aside the order of the District Forum and to remand the matter for fresh disposal in accordance with the merit of the complaint. 

7.  We have considered the arguments canvassed by the learned counsel for the appellant and also perused the records.  The case of the complainant is that the District Forum was not justified in dismissing the complaint holding that the complainant will not come under the purview of ‘consumer’ as defined under Sec. 2(1)(d) of the Consumer protection Act since the complainant is engaged in the business of renting out genset for earning his livelihood by means of self employment.  The learned counsel contended that there was no challenge with regard to this aspect by the 1^st respondent/opposite party during cross examination.     The complainant has clearly deposed that he was running the shop by himself without any assistance and is thus clear that he is earning his livelihood by means of self employment.  Therefore the complainant will come under the purview of ‘consumer’ as defined under the Consumer Protection Act. 

8.  The short question to be decided is whether the service availed by the appellant would fall within the term commercial purpose and whether such service is availed by the appellant for the purpose of earning his livelihood by means of self employment.  To take a decision in the matter a reference to Sec. 2(1)(d) of the Consumer Protection Act is necessary.  The said section reads as under:

Sec. 2 (1) (d) consumer means any person who

1. 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

2.  “[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 payments, 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 purpose of earning his livelihood by means of self- employment;]

9.  In the present case the complainant was admittedly running a business concern under the name and style ‘M/s Jose Electrical Agencies’ and is engaged in the business of renting out generator sets.  The law is well settled that purchasing of goods or availing service for commercial purpose would not attract the definition of a consumer.  In order to file a case before the Consumer Forum, the important ingredients are that the goods purchased or service availed are exclusively for the purpose of his use or for earning livelihood by means of self-employment.  Every business run by an individual or group of business is meant to earn livelihood, but to be a consumer under the Consumer Protection Act one has to prove that he is running the business for earning his livelihood by way of self employment.  In the present case the complainant has no doubt averred that he started the business of renting out generators for the purpose of earning his livelihood but merely by making this bald statement, it cannot be concluded that the purpose of establishing the business by him is not commercial.  Admittedly the complainant has purchased 6 numbers of generators from the 2^nd opposite party.  The complainant is the proprietor of M/s Jose Electrical Agencies, a commercial establishment.  From the name of his concern it can be seen that his business activity is in dealing with electrical goods.  Renting out generators is one of his sources of income.  Perusing Ext. B3 which is an e-mail sent by the 2^nd opposite party to the 1^st opposite party, it is stated that the complainant is a sub-dealer of the 2^nd opposite party and he has purchased six numbers of generators from the 2^nd opposite party.  The sub-dealer cannot be a consumer.

10.  Further, the complainant has deposed that he did not even know the number of generators purchased from the 2^nd opposite party.  He is confused as to the number of gensets purchased from the 2^nd opposite party.  This statement clearly shows that he has other business activities in dealing with other electrical goods and he is not solely depending upon the business of renting out of generator sets.  It is true, as pointed out by the learned counsel for the appellant that Ext. A2 invoice is pertaining to the 2^nd opposite party and not with regard to the complainant.  The complainant is not having any registration with the Sales Tax authorities.  However, the above stated activities undertaken by the complainant clearly indicate that his intention was to generate profit which is the main indication of commercial purpose.  The District Forum therefore found that the purchase of generator set from the 2^nd opposite party by the complainant was for expanding his business and to increase his profit and as such the transaction would clearly come within the ambit of commercial purpose.  It cannot be said that the services were availed exclusively for the purpose of earning his livelihood by means of self-employment.  The complainant is not a consumer within the meaning of the Consumer Protection Act and the complaint filed by him was not maintainable.  The District Forum was fully justified in holding that the complaint was not maintainable as the complainant is not a consumer.  We do not find any error in the order passed by the District Forum. 

In the result, the appeal is dismissed.       

                                                              Sd/-

JUSTICE K. SURENDRA MOHAN  : PRESIDENT                            

                                                           Sd/-

RANJIT. R                : MEMBER

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