Delhi

North East

CC/53/2019

Manish Verma - Complainant(s)

Versus

The Gupta Electronics - Opp.Party(s)

20 May 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 53/19

 

In the matter of:

 

	Sh Manish Verma S/o Surender Kumar Verma R/o 1/9579, Street no. 2,Gali Post Office Pratap Pura West, Rohtash Nagar North East, Shahdara Delhi-110032	Complainant
	Versus
1       2       3       4	The Gupta Electronics 1551/1 West Rohtas Nagar Hanuman Road, Shahdara   M/s Whirlpool of India Ltd. Whirlpool House Plot No. 40 Sector-44, Gurugram   Whirlpool India Limited Plot no. A-4, MIDC Ranjangaon Taluka Shirur, Distt. Pune   K.N. Services Whirlpool Authorities Service Partner 246/20 Street No. 1, Lower Ground Floor, East School Block, Mandawali, Delhi	Opposite Parties

 

                                                                        ORDER PASSED ON:- 20.05.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The complainant has filed the present complaint alleging deficiency of service against the OPs for a selling defective Whirlpool washing machine model no. 30180  which the complainant had purchased from OP1 on 24.09.2018 for a sum of Rs. 12,500/- vide invoice no. 2410 which even despite replacement in December 2018 did not function properly. The said machine was purchased by the complainant for his wife who was in to business of online sale of clothes through ELANIC APP and the non-functioning of the said washing machine ruined the clothes meant for online sale thereby affecting her source of income leading to financial loss. Therefore vide the present complaint, the complainant has prayed for the refund of the price of the washing machine i.e. Rs. 12,500/- alongwith compensation and litigation cost valued at Rs. 25,000/- each.
2. The complainant has attached copy of the invoice of purchase of the washing machine alongwith copy of email correspondence exchange between  complainant‘s wife and OPs in the month of November 2018 regarding defective functionality of the washing machine and copy of legal notice to OPs alongwith postal receipt and track report.
3. Complainant was directed to address arguments on the admissibility of complaint on grounds of him / her being a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act.
4. The complainant argued that the washing machine was purchased for online clothes sale business of complainant’s wife and due to malfunctioning of the same, the business suffered losses and therefore the present complaint was filed.
5. We have heard the counsel for the complainant on the maintainability of the complaint for being admissible under  Section 2 (1) (d) of CPA.

The word ‘consumer’ is the fulcrum of the Consumer Protection Act (the Act) and is defined in Section 2 (1)(d) of the Act meaning any person who

1. buys and 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 that 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
2. 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.

 

The term ‘consumer’ has, thus, been defined to mean, a person who                 is-

1. a buyer, or
2. with the approval of the buyer, the user of the goods in question, or    
3. a hirer or person otherwise availing, or
4. with the approval of such aforesaid persons, the beneficiary, of the service(s) in question

 

with the condition super added that such buying of the goods or hiring or availing of any such service, is for a consideration, -

 

1. paid, or
2. promised, or
3. partly paid or promised, or
4. covered by any system of deferred payment

On bare reading of the above, it is clear that consumer is a person who buys goods or hires/avails of services for consideration but excludes a person who does the same for commercial purpose.

Admittedly the washing machine in question was purchased by the complainant for selling clothes through online App ELANIC and nowhere in the entire complaint has it anywhere been mentioned that the said machine was purchased for earning livelihood by way of self employment.

Therefore it is clear that the machine was purchased by the complainant from OPs for commercial purpose in course of business. Requirements of restricted meaning of “Commercial Purpose” are that the complainant ought to have availed the services of OP exclusively for purpose of earning livelihood by way of self employment which ingredient is missing in the present complaint. The word “commercial purpose ” has been defined by Hon'ble National Commission in Kores (India) Ltd Vs Samir Purkayastha (1996) 2 CPJ 71 (NC) as having a vide connotation and the determination of purpose in a consumer case should be done by taking into account a number of factors viz. the scope of business, the investment involved, the motive and intention behind the business, whether it is in the nature of earning a livelihood or earning substantial profit, currently as well as in future profits. Therefore commercial purpose is a question of fact to be decided on basis of purpose to which the goods bought are put to use and if the same is not for self employment, the person purchasing it is ousted from category of consumer especially after the amendment w.e.f. 15.03.2003 to the Act.

The Hon’ble National Commission in the judgment of Hajarimal Moonat Vs Kumar Iron Works 1997 (1) CPR 18 had observed that to arrive at a conclusion whether a purchase is for a commercial purpose, it has be decided whether the purchase of goods by the complainant was intended for commercial purpose or whether it was only for the purpose of carrying on a small business in which he was engaged for the purpose of eking out his livelihood by way of self employment. The Hon’ble Supreme Court in the landmark Judgment of Cheema Engineering Services Vs Rajan Singh 1997 (1) CPR 30 (SC) had observed that the word ‘self employment’ is not defined and is a matter of evidence which connotes all together a different concept namely he alone uses the machinery purchased for the purpose of manufacturer by employing himself in working out or producing the goods for earning his livelihood. In the present case, however, the complainant himself admitted that he had purchased the washing machine in question for his wife’s “online clothes sale” business.

In light of the settled proposition of law we do not find the present complainant falling within purview of a consumer u/s 2(1)(d) of the Consumer Protection Act as by complainant’s own admission, the subject washing machine was purchased and being used for commercial purpose. We find no merits in the present complaint since as per the amendments brought about in CPA in 2002 vide explanation dated 15.03.2003, all transactions coming within the ambit of commercial category are ousted from the purview of consumer complaint as per Section 2 (1)(d) (i) & (ii) of the Act. Hence the complainant is dismissed with no order as to costs.

6.  Let a copy of this order be sent to complainant free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
7.   File be consigned to record room.
8.   Announced on  20.05.2019

 

(N.K. Sharma)          President

(Sonica Mehrotra)  Member