For Karnataka Industrial Ms Kiran Suri, Sr Advocate with Mr S J Development Board Amith, Advocate For Karnashree High Tek Mr Gurudatta Ankolekar and Mr Nihant Ecowood Panicker, Advocates ORDER PER MR SUBHASH CHANDRA 1. This appeal under section 19 of the Consumer Protection Act, 1986 (in short, the ‘Act’) challenges the order dated 31.05.2017 of the State Consumer Dispute Redressal Commission, Karnataka, Bangalore (in short, the ‘State Commission’) in consumer complaint no. 3/2012. This order will also dispose of FA No. 1915 of 2018 filed by the respondent herein against the same order. As the facts of the case are similar, FA 264 of 2018 is taken as the lead case. For the reasons stated in the application for the condonation of delay of 60 days by the appellant, the same is condoned in the interest of justice. 2. The relevant facts of the case, in brief, are that the respondent who is an unemployed engineer, applied to the Single Window Clearnce Committee of the State Government of Karnataka, viz., Karnataka Udyog Mitra, for allotment of 01 acre of land on 12.10.2009 to establish a small scale industry to earn his livelihood by setting up a small and medium enterprise. Appellant allotted Plot No. 165 in Harohalli Industrial Area, 2nd Phase measuring 01 acre on lease cum sale basis for Rs 60,00,000/- which amount was paid in instalments of Rs 12,00,000 on 27.11.2010 and Rs 48,00,000/- on 27.04.2010 whereafter a registered agreement was executed on 11.05.2010 and possession handed over on 09.07.2010. Respondent raised a loan of Rs 5,00,00,000/- for construction of a building and working capital. He also undertook construction work including sinking of a borewell, construction of a sump, earth filling, main shed construction, etc. On 05.01.2012 the respondent approached the State Commission through a consumer complaint contending that the Appellant had failed to provide the basic amenities such as road and electricity connectivity to the unit and prayed for: (a) Directing the 1st Opposite Party to provide amenities like approach road, electricity, water, etc., to the Complainant’s industrial unit forthwith (b) Directing the 1st Opposite Party to pay a sum of Rs 90 lakhs to the complainant for the loss caused to the complainant for the delay on the part of 1st Opposite Party in providing power supply (c) Directing the 1st Opposite Party to pay a compensation of Rs 5,00,00,000/- for the mental agony and hardship undergone by the complainant (d) Passing such other orders deemed fit and proper in the circumstances of the case. This complaint was decided on contest, by way of the impugned order which ordered as under: Complaint is partly allowed. OP No. 1 is directed to provide approach road, permanent electricity connection and also water supply to the industrial shed of complainant namely plot no. 165 Bidadi/Haraholi Industrial Area, Ramnagar District and further directed OP No. 1 to pay compensation of Rs 20,00,000/- with interest @ 8% per annum to the complainant from the date of complaint till realization. OP No. 1 is directed to comply the said order within 8 weeks from the date of receipt of copy of this order. This order is impugned before us with the prayer to allow the First Appeal with costs, dismiss CC/03/2012 filed by the Respondent before the State Commission and to pass such order(s) as deemed fit and proper in the facts and circumstances of the case. 3. We have heard the learned counsels for the parties and carefully considered the material on the record. 4. Learned counsel for the Appellant contended that the impugned order erred in holding that the Respondent was a ‘consumer’ under Section 2(1)(d) of the Act since it was evident that the respondent had been allotted land for the purpose of an industry and was therefore for a commercial purpose and that the impugned order had erroneously fastened liability on the Appellant by ignoring this contention. It was argued that the complaint was not maintainable under Section 2(1)(d) of the Act. It was submitted that the liability of the Appellant was to provide basic amenities of road connectivity, electricity, etc. to the vicinity of the industrial hub which had been done as several industries were in operation there. Appellant 1 was not liable for electricity connection to individual units which was the responsibility of Respondent no. 2 for which purpose Respondent no. 1 was to approach them. Respondent contends that the claim of Rs.90 lakhs as loss and Rs 20 lakhs as compensation by the Respondent No. 1 indicated that his nature of activity was commercial. Reliance was placed on the Hon’ble Supreme Court in Laxmi Engineering Works Vs. PSG Industrial Institute, 1995 SCC (3) 583 to argue that while the purchase of a commercial machine for the purpose of livelihood, even if operated through assistance of one or two persons would not amount to ‘commercial’ use, since in the present case the work force was admittedly 75 strong and the land allotted was4046.87 sq mts, the purpose was evidently commercial which fact had been ignored by the State Commission. The Hon’ble Supreme Court in K. Sagar, Managing Director, Kiran Chit Fund, Musheerabad Vs. A. Bala Reddy & Anr., 2008 (7) SCC 166 had also laid down that persons getting service for a commercial purpose be excluded from the ambit of the Act. It was contended that the Appellant had already provided road connectivity in March 2010 and in mid-2012 electricity connection had also been provided. It was therefore prayed that the impugned order be set aside. 5. Per contra, learned counsel for the Respondent submitted that it was a partnership firm which had developed a technology of manufacturing artificial wood from bio-mass polymer compounds and road waste. It was stated that the functions of the Appellant, in view of an amendment in 1997, had been clarified to providing of land with necessary and essential infrastructural amenities and the constitution of the Karnataka Udyog Mitra was to facilitate industrial activities. It was contended that as per the New Industrial Policy of the State, all industrial units were to be provided the necessary infrastructural facilities of water, electricity, approach roads, etc. in addition to the land. The allotment of land to the Respondent who was a first generation entrepreneur, was based on a license dated 12.05.2010 from the Directorate of Industries and Commerce which categorized his enterprise as “Small/Manufacture”. He obtained a term loan from Canara Bank for Rs 4.50 cr and credit facility of Rs 50,00,000/- and purchased machinery from China worth Rs 3 crores. An expenditure of Rs 1,19,54,000/- was incurred on bore well, generator, shed, toilet, etc. apart from executing a lease cum sale agreement for Rs 52,78,155/-. The Respondent’s case is that the State Commission failed to consider awarding the compensation claimed and to take note of the fact that loss of Rs 12,00,000/- was being incurred amounting to Rs 90 lakhs due to deficiency in service by the Appellant due to the liability of the loan and the inability to commence production due to lack of facilities as a consequence of which there was delay in commercializing the unit and loss of export obligations. Reliance was placed on the judgments of the Hon’ble Supreme Court in Paramount Digital Colour Lab & Ors. Vs. Agfa India Private Limited & Ors., (2018) 14 SCC 81 and Rohit Chaudhary & Anr. Vs. Vipul Ltd., 2023 SCC OnLine SC 1131 to argue that purchase of machinery for purposes of earning livelihood by self-employment did not disentitle the Respondent as a ‘consumer’ under the Act and that each case had to be decided on its own facts. 6. The issues which fall for our consideration are whether the Respondent is a ‘consumer’ under the provisions of Section 2(1)(d) of the Act and whether the State Commission erred in awarding the compensation of Rs 20 lakhs against the claim of Rs 95 lakhs by the Respondent. 7. The Appellant has contended that the complaint before the State Commission was not maintainable since the Respondent was not a ‘consumer’ under Section 2(1)(d) of the Act since the purpose of obtaining the flat was commercial in view of the fact that 75 employees were hired by the Respondent and the compensation claimed. Section 2(1)(d) reads as below: “ 2(1)(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 curt 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 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.” While “commercial purpose” itself has not been defined in the Act, the Hon’ble Supreme Court in its judgment in Laxmi Engineering (supra) has held that in view of the Explanation to Section 2(1)(d) that 11. 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 applying 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, purchaser of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning 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 by 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…. 21. We must, therefore, hold that: (i) xxxx (ii) Whether the purpose for which a person has bought goods is a “commercial purpose” within the meaning of the definition of expression ‘consumer’ in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case. (iii0 A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood, by means of self-employment is within the definition of the expression ‘consumer’. In the instant case, the averment of the Respondent/complainant before the State Commission was that the industrial plot was applied for by him for the purpose of self-employment. The allotment of the plot is under the category of “Small Scale/Manufacture”. It is not in dispute that the development of infrastructure of shed, borewell and installation of generator was undertaken by the Respondent and the required machinery procured after obtaining a loan and credit facilities from Canara Bank. It is also not the Appellant’s case that the Respondent that the plot was for the purpose of resale. Rather, it is that the purpose of allotment was for “commercial purpose”. The justification for the same provided by the Appellant cannot be accepted merely in view of the fact that the claim of damages was large and that a large number of employees were proposed to be employees. The averment of the Appellant that the State Commission erred in considering the Respondent to be a ‘consumer’ under the Act therefore does not sustain. 8. It is also evident from the foregoing that the Respondent was allotted an industrial plot under the category of “Small Scale/Manufacture” by the Appellant which was to be handed over with the requisite infrastructure facilities of approach road, electricity and water connection. In Lucknow Development Authority Vs. M.K. Gupta, (1994) 1 SCC 243 the Hon’ble Supreme Court laid down that a public authority engaged in constructing and selling houses rendered a ‘service’. There is no dispute the Appellant as a public authority was obliged to provide the services of approach road, water and electricity for which the Respondent paid the price fixed within time and the lease-cum-sale deed was duly executed. It cannot shirk from its liability at this stage. According to the Appellant, an approach road was provided in March 2010 and electricity connection was also provided by 18/19.04.2012. This is not controverted by the respondent. It is therefore manifest that the Appellant was deficient in providing the infrastructure promised at the time of allotment based on which assurance the Respondent progressed his development and utilization of the industrial plot. 9. The State Commission has awarded the Respondent compensation of Rs 20 lakhs for the deficiency in service on part of the Appellant in not providing the industrial plot with the promised amenities. It is apparent that the Respondent would not have been able to access his plot without the provision of the road and other facilities to undertake the development which has admittedly been undertaken by the Respondent. The claim of the Respondent for liability on account of servicing the loan and the inability to commence production due to lack of facilities and resultant delay in commercializing the unit and loss of export obligations has been considered. It has been held by the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd., vs D S Dhanda in CA nos. 4910-4941 of 2019 decided on 10.05.2019 has laid down that award of multiple compensations for a singular default of deficiency in service is not justified. 10. The fact that the Appellant had provided the access road and electricity connection by 18/19.04.2012 to the Respondent’s plot has not been disputed. Compensation for loss on account of delay in commercialization and exports as claimed by the Respondent cannot be considered also in view of the fact that these are hypothetical figures which are not supported by any documentary basis on record. The claim of compensation under multiple heads therefore does not sustain. Appellant placed reliance on the judgment of the Hon’ble Supreme Court in Karnataka Industrial Areas Development Board Vs. Nandi Cold Storage Pvt. Ltd., (2007) 10 SCC 481 in Civil Appeal No. 5542 of 2004 decided on 11.07.2007 to contend that the quantum compensation awarded be reduced. However, the ratio of this judgment is of no avail to the Appellant as the facts of that case are entirely different and involve cancellation of the plot and loan which was held to be a deficiency in service. 11. The Appellant’s contention that the claim of the Respondent be rejected on the ground that he is not covered as a ‘consumer’ under the Act has been considered above and found to not be tenable. The State Commission has considered a compensation of Rs 20,00,000/- as fair and reasonable in the facts and circumstances of the case. The Appellant’s contention that the approach road was provided in March 2010 and the electricity connection was provided by 18/19/04/2012 has been considered. In view of the fact that these assertions of the appellants have not been controverted by the Respondent, it is clear that the Appellant had provided the facilities of access to road, and electricity without water connection by April 2012. Since the allotment of an industrial plot had to be done with the objective of promoting industrialization and the Respondent is admittedly a small and medium enterprise, this allotment of land could not be utilized by him for want of these facilities. The Appellant’s contention that the Respondent was not eligible under the Consumer Protection Act on the grounds that he was not a ‘consumer’ does not sustain in the light of the discussion above. We therefore do not find any reason to disturb this finding in view of the foregoing discussion. 12. As a consequence of the discussion above, we do not find merit in the appeal. The same is therefore disallowed. The order of the State Commission is affirmed. 13. In view of the order in FA 264 of 2018 above, FA 1915 of 2018 preferred by the Respondent seeking enhancement of compensation awarded by the State Commission is also dismissed. 14. Parties shall bear their own costs. Pending IAs, if any, stand disposed of with this order. | 
