5 However, as per the contention of the opposite party, the website was developed by the opposite party as per specifications of the complainant and the same was operational but the complainant has not made certain payments and the complainant has filed a complaint u/s 138 of Negotiable Instruments Act against the opposite party and in the said complaint all the material facts which are not in dispute before this Forum were also highlighted.
6 From the contents of the present complaint as well as criminal complaint No.1095 AG of 2013 which was filed by the complainant it emerges that the transaction between the parties was of commercial nature. Even there is no whisper in the complaint that the complainant availed the services of the opposite party for developing of website for earning his livelihood.
Now, the question for adjudication is as to whether the complainant was consumer under the Consumer Protection Act as defined in Section 2(1)(d) of the Act , reads as under:
(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 for 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 re-sale 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 whom (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 first mentioned person;
Explanation : For the purples of sub clause(i) Commercial purpose, does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self employment
7 However there is nothing in the complaint itself that the complainant had got developed the site from the opposite party for his livelihood exclusively meant of self employment so as to come within the definition explanation attached to section 2(1) (d) of the Consumer Protection Act.
8. Therefore, in the absence of any such allegations in the complaint and in view of the law laid down by the Hon’ble National Commission in case Monstera Estate Pvt.Ltd. Versus ARDEE INFRASTRUCTURE PVT.LTD. Vol. IV (2010)CPJ 299(NC) page 299 it has to be held that transaction between the parties was for commercial purpose.
The Hon’ble Supreme Court of India in Civil Appeal No.4193 of 1995 decided on 4.4.1995 titled Laxmi Engineering Works Vs. P.S.G. Industrial Institute has laid the latest law as to whether the complainant falls within the definition of Consumer as below
“Appeal against Order of National Commission that complaint not maintainable on ground of appellant was not consumer. –As per Act person who buys goods and use himself exclusively for purchase of earning livelihood by means of self employment is within the definition of expression “Consumer”-considering nature and character of machine goods which appellant purchased for use by himself not exclusively for purpose of earning his livelihood by means of self employment- machinery in question purchased for commercial purpose- appellant not entitled to regarded as consumer- No infirmity in Order passed by the National Commission- appeal dismissed.”
9 The Hon’ble National Commission has recently laid down law regarding the definition of Consumer in case Consumer Complaint No.117 of 2014 on 7.5.2014 titled Shailaja Finance Ltd. Versus GTM Buildlers and Promoters etc.
10. Similarly reliance has been placed on the law laid down in case
Travel India Bureau Pvt. Ltd. Vs. HUDA & Ors. II(2008) CPJ 329(NC) as well as Birla Technologies Ltd Vs Neutal Glass and Allied Industries Ltd (2011) 1 SCC 525 (SC).
11 In view of our above discussion and in view of the various legal precedents, it has also to be held that the transaction between the parties was for commercial purposes and thus, the complainant was not a “Consumer” and the complaint under the Consumer Protection Act was not maintainable and is dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the records after due compliance.
Announced (Subhash Goyal)
07.08.2015 President,
District Consumer Disputes
Redressal Forum, Gurgaon
(Jyoti Siwach) (Surender Singh Balyan)
Member Member
