Delhi

North East

CC/345/2015

Govind Computer Solution Through Prop. Chotey Lal - Complainant(s)

Versus

Veera Enterprises - Opp.Party(s)

28 Jan 2020

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.  345/15

 

In the matter of:

 

	Govind Computer Solution Through Prop. Chotey Lal Shop No. E-3/24, Near Mother Dairy Nand Nagri, Delhi-110093.	Complainant
	Versus
1.       2.	Canon India Pvt Ltd D-179, Okhla Industrial Area Phase-1, New Delhi-110020.   Veera Enterprises 38, Basant Complex Veer Sawarkar Block, Vikas Marg, Shakarpur, Delhi-110092.	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

16.09.2015 28.01.2020 28.01.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The grievance of the complainant as made out in the present complaint is that of a defective Canon Printer 287 manufactured by OP1 Company purchased by complainant from OP2 on 12.08.2015 for a sum of Rs. 49,000/- inclusive of vat vide invoice No. Ver(2015-16) 17704 for his computer shop in the name and style Govind Computer Solutions which printer was defective and improperly and hastily installed by executive of OP1 due to which he suffered heavy losses in his business and therefore has filed the present complaint before this Forum praying for replacement thereof or refund of the subject printer.  

Complainant has attached invoice dated 12.08.2015.

2. Notice was issued to the OPs on 12.10.2015. None appeared on behalf of OP2 despite service effected on 20.10.2015 and were therefore proceeded against ex-parte vide order dated 14.01.2016. OP1 entered appearance and filed written statement taking preliminary objection of non maintainability of complaint on grounds of ct having purchased the printer in question for commercial purpose i.e. for running a computer shop and therefore he was hit by provision under Section 2 (1)(d)(i) of Proviso thereof which excludes goods purchase for commercial purpose from the ambit of consumer protection act. Therefore without going into merits of pleading filed by both parties, this Forum directed both parties to address arguments on the maintainability of complaint since it is the settled law that preliminary issue has to be decided first before dealing with the matter on merits as per judgment of Hon'ble Supreme Court in Hewlett Packard India Ltd. Vs Shri Ramachander Gehlot in CA no. 7107/2003 decided on 16.02.2004 vide which the Hon'ble Supreme Court held that issue of maintainability has to be decided before hearing the matter on merit and in judgment of Hon’ble NCDRC in Koshy Varghese Vs HDFC Bank Ltd III (2017) CPJ 52 (NC) wherein Hon’ble National Commission held that question in which law point is involved can be decided at any stage of the proceedings. Therefore, without going into the merits of the case, we shall adjudicate the admissibility / non-admissibility of the present complaint.
3. We have heard the arguments addressed by the complainant and have thoroughly perused the documentary evidence and pleading on record.

A specific question was put to the complainant in the light of averment made by him in his complaint that the sole purpose of purchasing the said printer was for commercial use to earn profit for his computer shop that how was his complaint maintainable within Consumer Protection Act and how was he a consumer within the meaning of Act. However, no proof to substantiate any claim for livelihood and self employment has been placed on record in support of the said printer having been purchased. Section 2 (1) (d) (i) of CPA excludes any such person from the definition of consumer who hires or avails of any service for a consideration for any commercial purpose which amendment was brought in the act w.e.f. 15.03.2003 which excluded services of commercial purpose from the ambit of Consumer Protection 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,not only did the complainant himself admit that he had purchased the printer in question for “commercial purpose” but also failed to place on record any document of evidentiary value in support of his contention that the same was purchased for earning livelihood as the two terms and contradictory and in contravention to each other. His pleadings are also silent on the said issue.

4. We therefore, are of the considered opinion that the present complaint does not fall within the ambit of the consumer complaint and the complainant is not a consumer within the meaning of Section 2 (1)(d)(i) of CPA more specifically enforced by the 2003 amendment in the CPA excluding commercial transaction. We, therefore, dismiss the present complaint as non maintainable with no order as to costs. 
5.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
6.   File be consigned to record room.
7.   Announced on  28.01.2020.

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member