This First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”) is directed against order dated 8.2.2013 passed by the State Consumer Disputes Redressal Commission, Maharashtra (for short “the State Commission”) whereby the complaint filed by the complainant, the appellant herein, has been dismissed on the ground that he is not a “consumer” within the meaning of Section 2(1)(d)(ii) of the Act. The complainant, a sole proprietary concern, was engaged in the business of export of readymade garments. On 6.3.1998, they booked a consignment of 288 cartons of readymade garments packed in 6 containers through M/s Continental Carriers Ltd. (Respondent No.1), to be air-lifted by M/s Iran Airlines (Respondent No.2) to Milan, Italy. Since the Cargo did not reach the destination on time and some of the containers were found to be damaged, alleging deficiency in service, complaint under the Act was filed against both the said respondents before the State Commission, claiming compensation of a sum of Rs.15 lakh. The complaint was resisted by the respondents on several grounds. It appears that on the date of final hearing before the State Commission, the complainant was not present. After hearing learned counsel for the respondents, as noted above, the State Commission dismissed the complaint on the ground that since the complainant had availed of the services of the respondents for a commercial purpose, because of amendment in Section 2(1)(d)(ii) by Act 50 of 1993 with retrospective effect from 18.6.1993, excluding a person who avails of such services for any commercial purpose, unless it is established that the services were availed by him exclusively for earning his livelihood by means of self-employment, he is excluded from the ambit of the Act. Hence, the present appeal. Having heard the complainant, who appears in person, and learned counsel for the respondent, we are of the opinion that the impugned order cannot be sustained. Section 2(1)(d) defines “consumer”. Sub-clause (ii) of Clause (d), relevant for our purpose, reads as follows : (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 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 purposes of earning his livelihood, by means of self-employment.] The amendment in the first bracketed portion was carried out by Act of 50 of 1993 w.e.f. 18.6.1993, with which we are not concerned. However, the second bracketed portion, along with ‘explanation’ was inserted by Act 62 of 2002 with effect from 15.3.2003, whereby a person who avails of services mentioned in the sub-section, for any commercial purpose has been excluded from the ambit of the Act. Unlike the amendment of 1993, the said amendment was not given retrospective effect and would therefore, be applicable w.e.f. 15.3.2003. Admittedly, in the present case, the consignment in question was booked on 6.3.1993 and therefore the cause of action had arisen much prior to the said amendment with effect from 15.3.2003. At this stage, it is vehemently submitted by learned counsel appearing for Respondent No.2 that the claim of the complainant was based on forged documents and therefore, the complaint deserves to be dismissed on that short ground. It is also urged by learned counsel appearing for Respondent No.1 that there was no privity of contract between the complainant and the said respondent. We are of the opinion that since the State Commission has not gone into the merits of the complaint, it would not be proper to make any observation which may impinge upon the merits of the case. All these issues will be gone into by the State Commission when the complaint is taken up for consideration on merits. Consequently, the appeal is allowed, the impugned order is set aside and the case is remitted back to the State Commission for disposal on merits. There shall be no order as to costs. Parties/counsel are directed to appear before the State Commission on 9.1.2014 for further proceedings. | 
