M.A Case No. MA/32/2023
.Final Order/Judgement
Angshumati Nanda Ld. Member: -
Today is fixed for hearing the petition dt.13.3.23 filed by O.P.No.1 & 2 alleging maintainability of the case against him.
Both parties file hazira through their respective advocates.
The petition for maintainability is taken up for hearing.
Heard the Misc. Case from both sides. Perused the petition and other materials on record. Complt seen the maintainability petition and raised objection. Complt also filed written objection against the said petition.
We have gone through the available materials on record that Complt. is an unemployed youth having no other source of income he engaged himself in excavator business which is his only earning source as his self-employment. To smooth run his business he appointed driver and helper as support to start his business as the complt. do not have possessed driving licence and skill to run the excavator machine. In this case O.P.No.1 & 2 are manufacturer of the Hydraulic excavator and its selling agent. After discussion with the selling agent of O.P.No.1 the complt decided to purchase one DEMO Machine which is good in all respect and less cost and also he will get full warranty from the manufacturer.
Taking loan from the O.P.No.3, YES BANK Complt. paid Rs.35,00,000/- with a discount of Rs.9,00,000/- to the O.P. for purchasing SANY EXCAVATOR MODEL No.SY140C-9 with one year free insurance and one year warranty.
Form the very beginning the machine creating different troubles. O.P.No.1 & 2 repaired and replaced some parts in warranty in warranty period. Complt. suffered huge financial loss due to constant defunct of the machine. Complt. has to bear the cost of driver and helper and to pay the EMI to the O.P.No.3, YES BANK within time.
Having no other alternative the complt. has to come up before this Commission getting necessary reliefs.
In the matter of maintainability both parties have filed affidavit and counter-affidavit in support of their contentions.
The O.P.No.1 & 2 by filing instant petition dt.13.3.23 contended that in consonance with the scope of sec.2(7) of Consumer Protection Act 2019. Here the complt. submits that he had taking huge loan amount from O.P.No.3 bank to purchase the excavator machine. There is no close nexus between the transaction of purchase of the said machine and the alleged large scale activity carried on for earning profit. Since complt. had got no employment and that too without finance. It is a business which will be considered as small venture and not a large scale business where huge profit will be generated. As such his small scale and such nature of business is very much covered under the definition consumer as per Sec.2(7) of C.P. Act 2019.
Contd.3..
-3-
We have gone through consideration to the content of the O.Ps. given cited reference of 1997(1) Sec.131. This appears the ambit of commercial purpose in sub-clause (1) of sec.2(1)(d), any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. Here the complt. used the machine only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workman for trade in the manufacture or sale of bricks, it would be for self employment. Manufacture and sale of bricks is a commercial may also be earned livelihood, but within merely earning livelihood in commercial business does not mean that it not for commercial purpose. Here O.P. submits the complain has already admitted that he did not engaged himself personally in running the machine and the same has done exclusively by two drivers and two helpers. Because he did not know how to operate the machine. So he is carrying out the commercial activity and therefore the complaint petition is not maintainable since the dispute involved is not a consumer dispute within the per view of consumer protection Act,2019.
Complt submits that as per judgement of the Hon’ble Apex Court of India in a case of paramount digital colour lab it has been observed that it is not necessary that a person should be working alone in the commercial activity under taken by him for earning his livelihood and his family members and or few employees can assist him in his commercial venture. Such assistance by his family members or bys a few employees engaged by him does not convert his business or profession into a commercial activity on a large scale for the purpose of making profit and therefore does not exclude him from the preview of the term ‘Consumer’.
The ambits and scopes of the Section of Consumer Protection Act 2019 has been reflected anything to hold that a consumer as per Sec2(7) of the CP Act 2019 don’t have the scope and locus standi to lodge the above mentioned not maintainability petition.
Considering these all we feel inclined to hold that the Commission has jurisdiction to entertain the dispute being the subject matter of the complaint here.
According we feel inclined to hold that this complaint case is well maintainable in its present from.
In this premises the O.Ps petition dtd 13.03.23 discus no positive consideration and the same stands rejected on contest.
Hence, it is
Ordered.
That the misc case No.MA/32/23 be and the same is rejected on contest without giving any order as to cost.
Thus Misc Case No.MA/32/23 is disposed of.
Let a copy of this order be given to the parties free of cost.
