Hardeep Singh vs FRONTIER TRADING

-THIS appeal is directed against judgment and order dated 27.9.2004 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dismissing the Complaint Case No. 81 of 2004 for want of jurisdiction and leaving the complainant/appellant to seek redressal of his grievances by filing a regular civil suit before Civil Court of competent jurisdiction.

THE respondents were served with the notices issued in the complaint case but they did not appear despite service and were proceeded ex parte. Hence, notices of appeal have not been issued to the respondents. THE complaint case was taken ex parte wherein Shri Surjit Singh, father of the complainant, filed his affidavit in support of the averments made in the complaint case and also filed copy of independent distributor application and agreement executed between the complainant and Shri Suhas Joshi and one another as authorised signatory of O.P. No. 1, which is dated 1.9.2003. Copy of the receipt of a sum of Rs. 93,500/- issued by respondent No. 1 has also been placed on record. The District Forum noted the material contents of the said agreement and extracted the same in the impugned order. The complaint was dismissed on the ground that the complainant was not a consumer inasmuch as the magnetic mattress was purchased for commercial purpose. The appellant has cited a decision of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi (for short hereinafter to be referred to as National Commission) in the case of Frontier Trading and Another v. Gayanthri N. Nimbalkar, IV (2003) CPJ 6 (NC)=(2003) 6 CLD 451, which has also been cited in para 6 of the impugned order of the District Forum but this authority has been distinguished on the ground that the revision petition was decided on 14.8.2003 and revision petition had been filed in the year 2002. The Amending Consumer Protection Act, 1986 (for short hereinafter to be referred as C.P. Act) is of the year 2002 being Act No. 62 of 2002 and the same was enforced on 15.3.2003. The amendment, which has been mainly effected insofar as definition of "consumer" is regarding Section 2(1)(d)(ii) of the C.P. Act, which refers to the hiring and availing of services for consideration inasmuch as under Section 2(1)(d)(ii) also the case of a person has been excluded who availed of such services for any commercial purpose. The explanation appended to Section 2(1)(d) of the C.P. Act is the same, which was appended earlier and prior to the aforesaid amendment of 2002, which related to the goods. This explanation has now been appended so as to cover the case of hiring and availing of services under Section 2(1)(d)(ii) of the C.P. Act.

Apart from this, no change or amendment in the definition has been made by the amended C.P. Act. The instant case relates to goods, which was subject to the aforesaid exclusion of the goods purchased for commercial purpose. The Hon'ble National Commission while deciding the case of Frontier Trading and Another (supra) held in para 7, inter alia, as under: "7. Further, even assuming that both the above transactions are linked with each other assuming further that respondent No. 1 intended to purchase the mattress as part of the Network Marketing Plan, we still hold that she would be a consumer and is covered by the Consumer Protection Act. This Commission has taken a view consistently that self-employed persons carrying on business by themselves and with support of one or two helpers have to be treated as consumers............"

THE authority, which was relied on by the appellant i.e., Frontier Trading and Another (supra) is of direct application to the facts of the instant case as in the instant case also, the complainant purchased the magnetic mattress and so far as the goods are concerned vis-a-vis the respondents, are squarely covered by the facts of the case as in the case of Frontier Trading and Another (supra). That being so, the complaint case, which seeks refund of the amount paid by the appellant with interest could not be treated to be a case of commercial purpose in nature. In the case of Frontier Trading and Another (supra), the complainant had sought refund of the amount spent over the mattress.

WE are of the considered opinion that the District Forum has wrongly applied the commercial purpose to the facts of the case and committed an error in law in dismissing the complaint for want of jurisdiction. In view of the law laid down by the Hon'ble National Commission in the case of Frontier Trading and Another (supra), the complaint is maintainable. Resultantly, the appeal is allowed. The impugned judgment and order is set aside and the complaint case is remanded to the District Forum-II, U.T., Chandigarh for decision afresh on merit and according to law. The complainant is directed to appear before the District Forum-II, U.T., Chandigarh on 13.12.2004. Copies of this order be sent to the parties free of charge. Appeal allowed.