Heard learned counsel for both sides.

2.      Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.   The case of the complainant in nutshell is that complainant being Proprietor of M/s Mahadev Motors has got business of spare parts. It is alleged inter alia that he has got that business for maintaining his livelihood. It is alleged inter alia that the complainant was procuring the spare parts from OP No.2 but he found that OP No. 2 was charging higher price than the quoted price by OP No.1. So the complainant alleged about deficiency of service on the part of the OPs. Since the matter could not be solved, complaint was filed.

4.      OP Nos.1 and 2 also filed written version challenging the maintainability of the complaint by stating that the complainant is having business for commercial purpose because he is the owner of JCB machine. He also deals with spare parts by giving the earthmoving machine on rent basis. Therefore, they submitted that the complaint is not maintainable u/s 2(d)(i) of the Act.

5.      Learned District Forum after hearing both parties passed the following impugned order:-

                             “xxx   xxx   xxx

Hence, the present dispute cannot be held to be a consumer dispute rather it is a dispute between the business concerns, constituting civil disputes. Hence, preliminary objection made by OP No.1 raising maintainability of the complaint cannot be ignored. We, therefore, held that the complainant is not a consumer in view of section 2(d)(i) of the Act as the goods (spare parts) purchased to be fitted to the machines meant for commercial  purposes and not for maintaining livelihood by self employment. When we have already hold the complainant not to be a consumer the complaint filed by him is not maintainable, liable to be dismissed. When the complaint itself is not maintainable, there is no need to enter into the merits of the case.

Accordingly, the complaint is dismissed and disposed of.”

6.      Learned counsel for the appellant submitted that the learned District Forum has committed error in law by passing the impugned order without going through the complaint properly because it has been averred that the complainant started this business to maintain his livelihood. According to him, the complainant used to maintain his livelihood by earning money from the business by renting the earthmoving machine and selling the spare parts by procuring same from the OPs. Learned District Forum ought to have considered this fact by evidence which complainant was ready to produce.

7.      Learned counsel for the appellant submitted that the learned District Forum committed error in law by not going through the materials produced by the complainant to prove that he has got case on merit. Learned District Forum passed the impugned order without raising any issue or discussing any evidence on record. Therefore, he submitted to set aside the impugned order by allowing the appeal.

8.      Learned counsel for the respondents submitted that the learned District Forum has rightly dismissed the complaint because the complainant is involved in commercial purpose of selling spare parts. There is no any material produced by the complainant to show that he is having this business for maintaining his livelihood. Therefore, they support the impugned order.

9.      Considered the submissions of learned counsel for  the respective parties and perused the DFR including the impugned order.

10.    It is well settled that the complainant is to prove the deficiency of service on the part of the OPs including the fact that the complaint is maintainable.

11.    Section 2(d)(i) of the Act is as follows:-

“xxx   xxx   xxx

(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”

12.    It is clear in the section itself that clause will not include a person to obtain any goods for resale or for any commercial purpose but the explanation to 2(d) is very clear to explain the meaning of commercial purpose which is as follows:-

                   “xxx   xxx   xxx

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.”

13.    In view of the above explanation, it  appears that the person who avails or uses any goods by the  purpose of earning his livelihood by means of self employment is a ‘consumer’. In the instant case, learned District Forum  without framing any issue whether the complainant has purchased the goods for maintaining livelihood or not, decided that the complainant is  involved in procuring such machine for commercial purpose but not for maintaining his livelihood. Unless the complaint is allowed to lead any evidence, the conclusion arrived by the learned District Forum is hypothetical and  only based on surmises. In such situation, there is no other option than to observe that the observation of the learned District Forum is liable to be set aside and it is set aside.

14.    So far maintainability of the complaint is concerned,  learned District Forum is to discuss the evidence produced by both parties and then come to a conclusion whether it is maintainable or not. Therefore, the appeal is allowed with a direction to remand the matter to the learned District Forum to frame issue on the maintainability and merit of the case and dispose of the case in accordance with law after hearing both the parties afresh. It is made clear that this Commission has not opined anything on the merit of the case and it is for the learned District Forum to take decision on the materials produced before it and dispose of the matter within 60 days from the date of receipt of this order. Therefore, both parties are directed to download this order of this Commission from Confonet or Website of this Commission and produce the same before the learned District Forum on 24.8.2021 to receive further instruction from it. No cost awarded.

        DFR be sent back forthwith.