The complainant in its rejoinder has stated that the bills were issued in the name of the complainant and were duly paid by the complainant. Escort Securities Private Limited has placed a purchase order for the said connection but it was being used by the complainant. It is denied that the dispute is a commercial dispute and the sub broker ship was taken by the complainant to earn his livelihood.
We have perused the pleadings and documents filed by both the parties. It is admitted by the complainant that she is a sub broker providing online share trading services to her clients. The complainant has nowhere stated in the complaint that she is carrying on her business for the purpose of earning her livelihood. It was mentioned in her rejoinder only as afterthought.
Hon’ble National Commission in Dinesh Somani & Anr. v/s JMD Construction I(2017) CPJ 337 (NC) has observed that:
Section 2(1) (d) of the Act defines the term ‘consumer’ as under:
2(1) “Consumer” means any person who-
- 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 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
- (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 purpose 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”).
3. On bare reading of the above, it is clear that definition of consumer has been provided with inbuilt exception in the statute excluding the purchaser of the goods. (hirer of the services for commercial purpose. In the instant case, admittedly the complainant had hired/ availed the services of the opposite party for construction of factories, namely, M/s Jai Balaji Industries and M/s Jai Mata Di Industries. Thus, it is obvious that services of the opposite party were hired/ availed by the complainant for commercial purpose i.e. construction and running of industry for making profits. Thus, in our considered opinion, the complainant is not a consumer as envisaged under Section 2(1) (d) of the Act particularly when it is not the case of the complainant that he is covered within the explanation to section which gives restricted meaning to the term ‘commercial purpose’. As the complainant is not a consumer, he cannot raise the consumer dispute.
In this case, Complainant has herself admitted that she was providing online share trading services.
Even otherwise the complainant has not placed any complaint or any correspondence with OP regarding lack of connectivity. Even the emails annexed with the complaint shows that “link “ is working fine to Complainants satisfaction. Complainant has not filed any email from her side disputing the link or any other connectivity problem. The complainant has not adduced any evidence apart from the self-serving affidavit that there was deficiency in connectivity provided by OP. Hence, complaint is dismissed for reason mentioned hereinabove. File consigned to record room.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (H.C SURI) (A.S YADAV)
MEMBER MEMBER PRESIDENT
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