ARYA BHAVAN SWEETS vs RADO AUTOMATION

IN this complaint, the complainant has prayed for compensation in the sum of Rs. 5,46,658.79, togethe with interest, against the opposite party, on the basis of the allegations reflected in that complaint.

THE facts relevant for the disposal of this complaint, as can be gathered from the materials produced before the Commission, are as under: THE complainant-M/s. Arya Bhavan is a firm under the caption "Arya Bhavan Sweets". It appears that Arya Bhavan is having a shop where the "sweets" are sold, as can be gathered from para-12 of the complaint. THE complainant wanted to purchase a CPT-O 2 K.V.A. U.P.S. System with back up accummulators. Accordingly, it purchased the same from the opposite party by paying an amount of Rs. 46,658.79 on 28.7.1995. This is reflected in the purchase voucher at Ex. Cl. According to the complainant, the machine was not in a working condition due to some fault and it was intimated immediately to the opposite party over phone on several occasions. However, the complainant did not receive the necessary response from me opposite party. It appears that lot of correspondence also took place as between the complainant and the opposite party. However, the complainant has alleged in the course of its complaint that the defect noticed in the UPS System was not rectified. It is also the case of the complainant that the UPS System was taken away ultimately by the opposite party saying that the same would be replaced within ten days. However, the opposite party, according to the complainant, did not do the needful. It is the case of the complainant that the UPS System was attached to all the electrical appliances including the refrigerator and freezer units. In that view of the matter, according to him, when the unit did not function at all properly, all the items which were kept in the unit went waste.The complainant has stated in its complaint that it had to suffer such malady right from the date of installation of the UPS System in question and even now. It has further alleged that due to the non-functioning of me UPS System in question during the afternoon, all the items which were required to be kept in a cool place could not be kept, and because of the non-functioning of the UPS System the complainant had suffered the loss referred to in its complaint. At para-12 of its complaint, the complainant has chosen to give the details of the financial loss said to have been incurred by it. On these allegations in substance, the complainant has claimed an amount of Rs. 46,658.79 towards the cost of the UPS System. It has also claimed Rs. 3,00,000/- towards the loss occurred due to the non-functioning of the system in its shop; an amount of Rs. 2,00,000/- is also claimed by way of compensation on account of mental tension and agony. It has also claimed interest on the amount paid towards the cost of the UPS System.

Though notice was served on the opposite party, the opposite party has remained absent.

THE complainant, in support of its case, has filed its affidavit by way of evidence. Exs. Cl to C8 were marked for it. Ex. Cl is the purchase voucher relating to the UPS System in question. Ex. C2 is the copy of the letter dated 28.12.1995. Ex. C3 is die copy of the letter written by the complainant. Ex. C4 is the reply dated 5.3.1996. Ex. C5 is the copy of another letter written by the complainant. Ex. C6 is the copy of the legal notice dated 22.4.1996. Ex. C7 is the postal acknowledgement and Ex. C8 is the copy of another letter written by the complainant dated 13.6.1996. We have heard Venkatachala, the learned Counsel appearing for the complainant. The points for consideration in this complaint are as under: (1) Whether the complainant is a ''consumer'' within the meaning of that expression under Section 2(l)(d) of the Consumer Protection Act, 1986 (hereinafter referred to as "The Act'' for short)? (2) Whether the complainant has proved any ''Deficiency in Service'' on the part of the opposite party? (3) Whether the complainant is entitled to any compensation, and if so, to what amount? (4) What order?

Point No. (I):

THE complainant is a firm, presumably registered under the Partnership Act. This can be gathered from the cause title given in the complaint. Though it is not stated in the complaint, in so many words, as to what exactly is me nature of the function performed by the partnership firm, it can be gathered from the totality of the materials reflected in me complaint that the premises in question is used for running a shop. This is clear from para-12(2) of the complaint. THE word ''Shop'', in its ordinary parlance is known to be a place where a trade is conducted either wholesale or retail. Further, the averments reflected in para-4 of the affidavit do not leave any doubt on this aspect. We will have occasion to deal with that para little later in the context of some other aspects. At this juncture, it will suffice if it is stated that the complainant at the place mentioned in die cause title, i.e., at No. 1, Sandiosh Shopping Arcade, Kempegowda Circle, Bangalore-560009, is running a business. Further, it is also clear from the totality of the materials that the complainant is doing the business of selling sweets at the said premises. We have chosen to set out the aforesaid background with a view to say as to what precisely was the purpose for which the UPS System was purchased by the complainant. The complainant has not made it clear in the complaint as regards as for what purpose the UPS System in question was purchased. However, as pointed out earlier, this aspect is made clear beyond a pale of doubt at para-4 of the affidavit filed by the complainant by way of evidence. It would be indeed refreshing to cull out para-4 of the affidavit as it is, which reads as under: "4. I submit that the complainant is put to great loss in view of the faulty system supplied by the respondent. In fact, the system also is taken away during January, 1996 and till today, neither the amount nor the system is returned. In fact, the system was purchased so that it could be attached to all the electrical units so as to enable continuous power supply to the refrigerator, freezers, etc. so that the eatables which are sold in the complainant firm does not perish, but in view of the supply of faulty system, the complainant suffered heavy losses worth thousands of rupees and even today, the said problem continues, during power cuts, and current failure...."

A perusal of the portion culled out hereinabove, would clearly go to show that the UPS System in question was purchased by the complainant so that it could be attached to all the electrical units so as to enable the continuous power supply to the refrigerator, freezer unit, etc., so mat the eatables which are sold in the complainant''s firm do not perish. It is therefore clear that the UPS System in question was purchased by the complainant in connection with the business and for the purpose of the business which the complainant hasbeen running at the place referred to earlier.

IF that be so, it will have to be seen as to whether the complainant can be construed as a ''Consumer'' within me meaning of that expression under Sections 2(1)(d)(i) and/or (ii) of the Act. 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 of 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 sirch goods for resale 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 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 : Explanation; For the purposes 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."

MR. Venkatachala, the learned Counsel for the complainant, submitted that the UPS System in question, obviously was not purchased for the purpose of resale. It was also argued by the learned Counsel that simply because certain sweets are sold in the premises in question, the purchase of the UPS System cannot be tagged to the sale of sweets so as to create a nexus between the purchase of the UPS System and the sale of the sweets. He therefore contended that the purchase of the UPS System cannot, by any stretch of imagination, be construed as a purchase for commercial purpose. The learned Counsel also contended that the question as to whether the purchase of a particular article is for a commercial purpose or not, will have to be decided in the context of various factors. Continuing his submission, the learned Counsel contended that even the business relating to the sale of sweets cannot be construed as one run for commercial purpose. Dilating on the same, the learned Counsel argued that the totality of the circumstances brought into being on record are not such as would point to the fact of the business being for commercial purpose. The learned Counsel also submitted that the sweets are not manufactured at the premises in question and that the same is also one of the important aspects which will have to be taken into consideration in the process of reaching a conclusion as to whether the purchase of the UPS System is for commercial purpose. Summing up his submission on these lines, the learned Counsel contended that the aforesaid question will have to be answered in the facts and circumstances of each case. The learned Counsel also cited certain instances to contend that even if a business is run by a person, the same cannot be construed as being for commercial purpose. In fact the learned Counsel has mainly relied on the decision of the Hon''ble Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute, reported in II (1995) CPJ 1 (SC)=AIR 1995 SC 1428. The Hon''ble Supreme Court in the said case, has explained the scope and ambit of the provisions of Section 2(1)(d) of the Act. The Supreme Court has pointed out therein that the question relating to the aforesaid aspect will depend upon the facts of each case. The observation made by the Hon''ble Supreme Court, relevant in the context of the disposal of this complaint, can be seen at para-12 in particular. Para-12 of the order reads as under: "12. Now coming back to the definition of the expression "consumer" in Section 2(d), a consumer means insofar as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration it is immartial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression "resale" is clear enough. Controversy has however arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. "Commercial" denotes "pertaining to commerce" (Chamber''s Twentieth Centrury Dictionary); it means "connected with or engaged in commerce mercantile; having profit as the main aim" (Collins English Dictionary) whereas the word "commerce" means "financial transactions expedially buying and selling of mercandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit" he will not be a "consumer" within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion - the expression "large-scale" is not a very precise expression - the Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression "commercial purpose" - a case of exception to an exception. Let us elaborate : a person who buysa typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing other''s work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that certain situations purchase of goods for "commercial purpose" would not year take the purchaser out of the definition of expression "consumer". If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a "consumer". In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto- rikshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer (In the above illustations, if such buyer takes the assistance of one or two persons to assist/ help him in operating the vehicle or machinery, he does not cease to be a consumer). As against this a person who purchases an auto-rikshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words."

It will have to be seen as to whether the observation of the Hon''ble Supreme Court culled out hereinabove is of any assistance to the complainant. As pointed out earlier, the complainant is running a business in the premises in question. Further, the averments reflected in para 10 and para 12 of the complaint would clearly go to show that the business is being run on a large scale. It is necessary to mention here that the complainant has estimated the loss said to have been incurred by him on account of the damage caused to the sweets for want of UPS System at Rs. 3,00,000/-. Further, it is significant to notice here that the said business is run not by one individual; it is run by a partnership firm, as can be gathered from the cause title. Further, the price of the UPS System is Rs. 46,658.79. All these circumstances put together, would indeed indicate that the business of the complainant is being run at the premises in question on a large scale.

We hasten to add here that simply because the business is being run by the complainant on a large scale, the same cannot be stated to be necessarily for commercial purpose. At this juncture, it is necessary to point out here that the Hon''ble Supreme Court has laid down various guidelines for the purpose of reaching a conclusion with reference to the aspect under consideration. The Hon''ble Supreme Court has also given certain instances so as to enable the different Courts and judicial Tribunals to arrive at a proper conclusion by the inductive method. At this juncture, it is necessary to remember that the Act is a beneficial provision enacted for protection of the interest of the consumers. If therefore, a person would like to take advantage of the benefit of the provisions of the Act, it is for him to place the necessary materials before the Forum or the Commission as the case may be, to establish, in the first instance, that he is a consumer. The definition of the expression ''Consumer'' referred to earlier here inabove, would go to show that commercial purpose does not include the use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment. In the instant case, it would have been certainly open for the complainant to make it clear by placing proper materials before the Commission that the business in sweets run in the premises in question was for earning the livelihood of the complainant by means of self- employment. However, there is not even a single averment either in the complaint or in the affidavit of the complainant, to that effect. We hasten to add here that one need not expect such an allegation in precise terms. Even if there are certain averments which would lead to that inference that should be sufficient. However, we have read the complaint between the lines and we have also read the affidavit between the lines, and we have ho hesitation to state that we have not been able to get anything in either of them to reach a conclusion, even by remote inference, that the business in question taken up by the complainant is by way of self-employment and for the purpose of earning livelihood. It is not possible for a Commission or a Forum to reach any conclusion byway of guesswork or surmises. In our view, it was in cumbenton the complainant to have alleged so, if really the business in question was meant for the purposes of earning its livelihood by way of self-employment. Further, the very fact that the business is run by a partnership firm is also one of the important circumstances which would perhaps warrant an inference to the contrary. If the totality of the facts and evidence produced in this case are tested by the touchstone of the aforesaid decision of the Hon''ble Supreme Court, we are unable to say that the business in question is not for commercial purpose. As pointed out earlier, the UPS System in question was purchased for the purpose of business, as admitted by the complainant, in substance, at para 4 of its affidavit. The contents of the said para would unmistakably indicate that the same was a part and parcel of the paraphernalia relating to the business. Once when we have taken the view that the business run by the complainant is for a commercial purpose, as a matter of logical corollary, it would mean that the UPS System purchased by the complainant in connection with the business, is also for commercial purpose. If that be so, it would mean that the complainant would not fall within the definition of the expression ''consumer'' as defined under Section 2(1)(d) of the Act.

FOR the reasons stated hereinabove, we answer Point No. (1) by holding that the complainant has failed to establish that it is a ''consumer''. Point Nos. (2) & (3): In view of our finding on Point No. (1), we are of the view that Points (2) and (3) do not arise for consideration. Since our finding on Point No. (1) goes to the root of the matter, even touching the jurisdiction of the Commission, we are of the view that it is not proper for us to record a finding on Points (2) and (3). Point No. (4):

IN the result, we pass the following: ORDER The complaint is dismissed. IN the facts and circumstances of the case, there is no order as to costs. Complaint dismissed.