BY - SRI.SAURAV CHANDRA, MEMBER

1. Brief facts of the Complainant’s case are that the Opposite Party No.1 is a Telecom Service Provider and the Opposite Party No.2 is an Authorized Representative/Zonal Distributor of the Opposite Party No.1 through whom the Complainant as a Retailer pre-booked 40 Jio Phone Vouchers for 40 Jio Mobile Handsets with paying Rs.20,000.00 vide NEFT on 23.08.2017. The Vouchers were supposed to be issued to the customers against payment/recovery of Rs.500.00 and the respective customers were to redeem the same against payment of balance amount at the time of delivery of hand set.

2. The Complainant initially sold all the vouchers to its customers but unable to complete the deal due to unavailability of handsets with the Ops and therefore bound to refund the amount to the respective customers.
3. The Complainant also further states, he has made several representation before the Ops but, the Ops neither refunded the pre-booked amount of Rs.20,000.00 nor made available of the Mobile Handset. Therefore, the Complainant filed the instant case before this Commission.

4. The Complainant has cited one reportable judgment of the Hon’ble Supreme Court of India in its favour in the case of :-

1. M/s.Nandan Biomatrix Ltd. – Vs. – S. Ambika Devi & Others. [Civil Appeal No.7537-7376 of 2010] – which justifies, the question regarding whether the purpose for which goods have been bought or services rendered is a “commercial purpose” is to be answered on the facts of each case, a person buying goods and using them himself exclusively for the purpose of earning a livelihood by means of self-employment would be covered by the definition of “consumer” within the 1986 Act, even if such use is commercial use.

5. The cause of action of this case arose on and from 23.08.2017 when the Complainant booked 40 Jio Vouchers for 40 Mobile Handsets with the Ops.

The Complainant, therefore, prays for :-

1. To full Refund the pre-booked amount of Rs.20,000.00 by OPs with Interest @18% p.a. since 23.08.2017.
2. To pay Compensation for loss of prestige and damage of reputation in the market amounting to Rs.2,00,000.00.
3. To pay Compensation of Rs.40,000.00 for Mental Agony and Harassment.
4. To pay Litigation Cost of Rs.20,000.00 to the Complainant for conducting the case.
5. Any other reliefs.
   6. The Ops being represented by its’ Learned Advocate has contested the case by filing Written Version against the complaint. While resisting the claim of the Complainant, the Op in its’ Written Version stated inter alia that this complaint is not maintainable in its present form and in law because the Complainant is not at all a consumer within the meaning of the Consumer Protection Act, 1986 and the remedy (if any) lies before the competent Civil Court as the dispute is entirely civil in nature. Moreover, the connection of the Complainant with the Op No.2 vis-à-vis Op No.1 is in absolutely a business and commercial relationship and dealings. The complaint is not maintainable because the transaction was purely commercial in nature. As such the Complainant ceased to be consumer and is not entitled to claim any relief as consumer. Therefore, the petition is bad in law and is liable to be dismissed and rejected.

7. The Ops has also cited two judgments of the Hon’ble Supreme Court of India in it’s favour in the cases of :-

1. Paramount Digital Colour Lab & Others – Vs. – AGFA India Pvt. Ltd. & Others [Civil Appeal Nos.2109-2110 of 2018, dictated on 15.02.2018, III (2018) CPJ 12 (SC)] – which justifies, if person buys and uses machines exclusively for purpose of earning his livelihood by means of ‘self-employment’, he definitely comes within definition of ‘consumer’. Initial burden is on appellants to prove that they fall within definition of “consumer”.

In the instant case, the Complainant purchased the goods for the use of others that too in lieu of money which certainly speaks that he is not a consumer considering the commerciality. This is obviously in conformity with the above remarkable judgment.

ii) Lilavati Kirtilal Mehta Medical Trust – Vs. – Unique Shanti Developers & Others [Civil Appeal No.12322 of 2016, dictated on 14.112019, IV (2019) CPJ 65 (SC)] – which justifies, whether dominant intention or dominant purpose for transaction was to facilitate some kind of profit generation for purchaser and/or their beneficiary. If it is found that dominant purpose behind purchasing goods or service was for personal use and consumption of purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, question of whether such a purchase was for purpose of ‘generating livelihood by means of self-employment’ need not be looked into.

8. Under the above circumstances, the Op has prayed for dismissal of the present case.
9. Points for determination are:

1. Is the case maintainable in its present form and in law? 
2. Is the Complainant entitled to the relief(s) as sought for?

10. Decision with reasons

1. Both the points I and II, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.

2. We have carefully perused the Affidavit and Examination-in-Chief, Evidence, Questionnaires, Replies, Written Argument of the Complainant; Written Version, Evidence, Questionnaires, Replies, Brief Notes on Argument etc. along with all papers and other documents filed by Ops.

3. Having regards had to the facts and circumstances of the case in the light of evidence, it is evident that the Complainant is engaged in business with the multiple Mobile Operators including the Op No.1 & 2 by not merely for Sale – Purchase activities of Mobile Handsets for the purpose of earning her livelihood but, also engaged in business promotional/marketing activities like redemption of vouchers, offered by the Opposite Parties as a strategy of business. It is evident from the letter dated: 15.05.2018 issued by the Op No.1, one of the vouchers has been redeemed by the customer of the Complainant. Therefore, the Commission is in view, the Complainant is not at all a consumer within the meaning of the Consumer Protection Act, 1986 and the remedy if any lies before the competent Civil Court as the dispute is entirely civil in nature. The connection of the Complainant with the Op No.2 vis-à-vis Op No.1 is in absolutely a business with the terms and conditions of commercial relationship and dealings. The complaint is not maintainable due to the transaction was not Business to Consumers but, purely a Business to Business in nature having close and direct nexus with a profit generating activity. In the instant case, the Complainant purchased the goods for the use of others against monetary consideration which certainly speaks that she is not a consumer considering the commerciality.  Moreover, the complainant has not made out any averment in his complaint that he run the business for personal use and consumption of purchaser and/or his beneficiary, or is otherwise not linked to any commercial activity and it was for purpose of ‘generating livelihood by means of self-employment’ As such the Complainant ceased to be consumer and is not entitled to claim any relief as consumer. Therefore, the petition is not only bad in law but void-ab-initio which is liable to be quashed by this Commission.

4. Hence, it is clearly transpires, there are no disputes,  elements of negligence, unfair trade practice and gross deficiency in service but, the Complainant unnecessary dragged her Civil disputes which is purely Commercial in nature with filing the instant case by wasting the valuable time of this Commission for which the Complainant is totally disentitled for any indemnification of the claim. Thus the instant complaint is not maintainable in its present form in law.

5. Therefore, the Complainant is not entitled to any relief as prayed for.
6. Accordingly, both the points are decided against the Complainant.
7.  Thus, the complaint case fails.

Hence, it is

          O R D E R E D

That the CC-335 of 2018 be and the same is dismissed on contest.

Let a copy of this judgment be provided to all the parties free   of cost. The judgment be uploaded forthwith on the website of  the Commission for the perusal of the parties.

File be consigned to record section along with a copy of this judgment.