For the Complainant : Mr.L.C.Joshi, Advocate
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Per :- Mr. J. L. Deshpande, President Place : Bandra
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::::: JUDGMENT :::::
Facts giving rise to this complaint may be stated, in brief, as follows :
The Opposite party no.1 is Transporter of Air Cargo. The Opposite party no.2 is a Courier Company. The Complainant is Private Limited Company carrying on business of Advertisement. The Complainant had sent some consignments through the Opposite party no.1 to send the same to Moscow (Russia). The consignment was being sent for Exhibition. The Opposite party failed to deliver the consignment in time. The Complainant claims that he has suffered heavy loss due to deficiency in service on the part of the Opposite parties.
2 During the course of hearing on admission Advocate for the Complainant was requested to satisfy us about the maintainability of the complaint. Accordingly, we have heard learned Advocate for the Complainant.
3 Section-2(1)(d) of Consumer Protection Act, 1986 defines the Consumer but a person who has availed services for commercial purpose does not become Consumer. Explanation below section -2(1)(d) of Consumer Protection Act, 1986 is in the form of exception. It applies to such person who has purchased the goods or availed the services for earning livelihood has self-employment.
4 Word “Commercial purpose” has been not defined in the Act. Hon’ble Supreme Court in the case, Cheema Engineering Services Versus Rajan Singh, VI (1998) SLT 20 = (1997) 1 SCC 131. It held that
“The word self-employment is not defined. Therefore, it is matter of evidence. Unless there is evidence and on consideration it is concluded that the machine was used only for self-employment to his livelihood without a sense of commercial purpose by employing on regular basis employees or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacturer and sale of bricks in a commercial way may also be to earn livelihood, but merely earning livelihood in commercial business does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself been working out or producing the goods for earning his livelihood. He includes the members of the family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them”.
5 In the present case, the Complainant has not averred anywhere in the complaint that the Complainant is doing the business for earning his livelihood as self-employment. The Complainant had paid service charge in sum of Rs.1,35,865/- to the Opposite party no.1. The costs of the material was Rs.14,36,172/-. The Complainant has claimed compensation for the same. All these facts show that the Complainant-Company, though Proprietorship is running business for earning profit and it is not being run as self-employment.
6 We have gone through the observations in the commentary produced by the advocate for the Complainant. However, they do not show that the Complainant is running the business not for commercial purpose but as a self-employment and earning livelihood. Hence, we find that the Complainant is not a consumer within the meaning of section-2(1)(d) of Consumer Protection Act, 1986.
Hence, we proceed to pass the following order.
::::: ORDER :::::
1 Complaint stands rejected under Section-12(3) of
Consumer Protection Act, 1986, being not admitted.
2 Certified copy of this order to be furnished to the
Complainant only, free of costs, as per rule.
