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Judgment
THE complainant in complaint No. BDCF, Com. 167/ 89-90 on the file of District Forum, Bangalore in the Revision Petitioner before us. THE complaint was filed by the Petitioner a registered consumer association-on behalf of one Mrs. Shanta Manuel of Palai, Kerala State. On 9.4.1989 Mrs. Shanta Manuel purchased one paper copier manufactured and marketed by the Opposite Party (Respondent herein) and the same was installed in her premises by the opposite party on 21.4.1989. THE work on the copier was inaugurated on 28.4.1989 but according to the complainant from that very date onwards the copier began to develop defects and as such the same was got repaired on six occasions till 20.8.1989. THE defects are said to have persisted notwithstanding the attempted repairs and hence the machine was left by Mrs. Shanta Manuel in the Cochin office of the Opposite Party on 19.9.1989 since it was apprehended that its malfunctioning was due to its inferior quality and presence of manufacturing defect. THE petitioner''s grievance is that the even though the warranty period had not expired the Opposite Party did not take any steps to replace the defective machine. Hence Mrs. Shanta Manuel filed the complaint through the petitioner before the District Forum, Bangalore, within whose jurisdiction the Opposite party has its Head Office, praying for direction to the Opposite Party to return to her the price of the copier with interest at 18.5% from the date of purchase of the machine along with Rs. 5,000/- as compensation for the inconvenience, mental tension and harassment to which the consumer had been subjected.
THE Opposite Party in its version contended that the complaint was not maintainable since the copier was purchased by Mrs. Shanta Manuel for a commercial purpose. In other words it was contended that the Forum had no jurisdiction to entertain the complaint since the complainant was not a ''consumer'' as defined in the Act. It was further contended that the warranty was only for a period of 90 days or for 50,000/- copies whichever was earlier and the copier must have developed defects only due to the use of paper which was not of right size, quality and description. The District Forums upheld the preliminary objection raised by the Opposite Party purporting to rely on the decision of this Commission in Oswal Fine Arts. H.M.T. Madras. I (1991) CPJ 330 (NC). It accordingly held that Mrs. Shanta Manuel had purchased the copier for a ''commercial purpose'' and hence the complaint was not maintainable before it.
Aggrieved by the aforesaid Order passed by the District Forum, the Petitioner preferred an appeal before the State Commission, Bangalore, it was specifically urged before the State Commission on behalf of the appellant that Mrs. Shanta Manuel had purchased the paper copier with the sole purpose of earning her livelihood by deriving some income with the aid of the said machine and that hence it was not a purchase for ''commercial purpose''. The State Commission however agreed with the District Forum. In its view the case was governed by the decision rendered by this Commission in Oswal Fine Arts v. H.M.T. Madras. The operative part of the discussion contained in the Order of the State Commission runs as follows : "The complaint was resisted by contending inter alia, that the machine had been purchased by Mrs. Shanta Manuel for a commercial purpose and therefore she was not a consumer. The said contention was upheld by the District Forum, relying upon the decision of the National Commission in Oswal Fine Arts v. H.M.T. Madras decided on 13.3.1989. In the appeal memo also it is stated by the Appellant that commonly memo copier is used for taking copies as may be requested by third persons and merely because the owner who used the copier, collects charges from the third persons for the copies given to them as a means of livelihood, that person does not cease to be the ''user of the goods''. From this, it is clear that the copier was purchased by Mrs. Shanta Manuel on behalf of with the complaint was filed for a commercial purpose. Since she was making profit by supplying copies to others by collecting charges from them, we see no reason to disagree with the said view of the District Forum, Bangalore especially as it is supported by the decision of the National Commission in Oswal Fine Arts v. H.M.T. Madras." The appeal having been dismissed by the State Commission on the aforesaid reasoning, the complainant has come up before us with this Revision Petition.
AFTER hearing counsel appearing in the case we have come to the conclusion that the Orders passed by the State Commission and the District Forum declining jurisdiction on the ground that the petitioner is not a consumer entitled to maintainable the complaint, cannot be legally sustained. The averment contained in the affidavit filed by Mrs. Shanta Manuel that she has purchased the photo copier for the sole purpose of earning her livelihood and that the purchase was made by loans received from her relatives and well wishers stands uncontroverted. Thus this is a case where the person on whose behalf the complaint is filed has purchased a copying machine not as part of large scale business or trading activity but for purposes of self employment in order to earn her own livelihood, it is not the case of the Respondent that the petitioner is carrying on any trade or business on a large scale with a view to make profit. In our judgment dated April 8,1990 in Synoo Textiles Pvt. Ltd. v. Greaves Cotton and Company Ltd., (F. A. No. 22 of 1989), we have considered in detail the scope of the exclusion clause contained in Section 2(1)(d)(i) of the Act which defines the expression ''consumer'' and the connotation to be given to the words "for any commercial purpose" and it was observed as follows: "From the definition extracted..... it is clearly seen that in relation to transactions of purchase of goods, Parliament has excluded from the scope of the definition any person who obtains goods for resale or for any commercial purpose. Since cases of resale have been separately referred to, it becomes obvious that the words " for any commercial purpose" are intended to cover cases other than those of resale of the concerned goods. The words for any commercial purpose are wide enough to take in all cases where goods are purchased for being used in any activity directly intended to generate profit. According to the meaning given standard dictionaries, the expression ''commercial'' means- "connected with, or engaged in commerce; mercantile; having profit as the main aim. (See Collins English Dictionary). "Pertaining to commerce; mercantile" (See Chamber''s Twentieth Century Dictionary). The meaning of the expression ''commerce'' as given in the dictionaries is: "exchange of merchandise, especially, on a large scale (See the Concise Oxford Dictionary). "interchange of merchandise on a large scale between nations or individuals; extended trade or traffic : (See Chamber Twentieth Century Dictionary).
GOING by the plain dictionary meaning of the words used in the definition section the intention of Parliament must be understood to be to exclude from the scope for the expression commerce'' any person who buys goods for the purpose of their being used in any activity on a large scale for the purpose of making profit. As already indicated since resale of the goods has been separately and specifically mentioned in the earlier portion of the definition clause the words "for any commercial purpose" must be understood as covering cases other than those of resale of the goods. It is thus obvious that Parliament wanted to exclude from the scope of the definition not merely persons who obtain goods for resale but also those who purchase goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit. On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit making activity will not be ''consumer'' entitled to protection under the Act. It seems to us clear that the intention of Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit making activity engaged on a large scale. It would thus follow that cases of purchase of goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit will all fall outside the scope of the definition. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large scale manufacturing or processing activity carried on for profit. In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purpose of goods and the large scale activity carried on for earning profit. From the above statement of the legal position it is clear that a purchase of goods can be said to be for a commercial purpose only if the following conditions are satisfied: - (1) The goods must have been purchased for being used in some profit making activity engaged in on a large scale. (ii) There should be close and direct nexus between the purpose of goods and the profit making activity.
It has also been clearly indicated by us in the said judgment that the benefits of the Act would be available even in cases of purchase of goods by a person for use in some small venture such as for self employment etc. which might embark upon in order to make a living, as distinct from a large scale manufacturing, processing or trading activity carried on for profit. Thus cases of persons who purchase goods or even machinery for self-employment purpose without engaging in any trading or manufacturing business on a large scale for purpose of profit making will not the within the scope of the exclusion clause in the statutory definition in Section 2 (1)(d)(i) and hence such person''s are consumer entitled to protection under the Act.
THESE important aspects relating to the scope and applicability of the exclusion clause of the definition "consumer" contained in Section 2(1)(d) of the Act have not been specifically developed or highlighted in some of our earlier judgments such as those in Oswal Fine Arts v. H.M.T. Madras and Western India State Motors v. Sobhag Mal Meena and Ors. (F.A. No. 12 of 1989). The decisions rendered in those cases had been rested only on the specific facts of each particular case. In M/s Oswal Fine Arts v. H.M.T. Madras the complainant has a well known printing press carrying on business on a large scale for the purpose of making profit and it was in the said context that this Commission held that the purchase of the off-set printing machine by the complainant was for a commercial purpose. In Western India State Motors v. Sobhag Mal Meena and Ors. case the purchase of the car was by a person conducting a regular taxi service with a fleet of vehicles which business was being conducted on a fairly large scale and the conclusion recorded in that case has to be understood only against the said back drop of facts. We consider it necessary to make it clear that the above mentioned decisions are not to be regarded as laying down any proposition that a person purchasing a machine a car or other items of goods as a means of self employment for earning his livelihood will fall within the exclusion clause of the definition section and will not be a consumer entitled to seek relief under the Act.
IN the case now before us it is clearly estalished by the materials on record that the purpose of the purchase of the paper copier by Mrs. Shanta manuel was only to enable to earn her livelihood by the process of self employment. Such being the factual position Mrs. Shanta Manuel cannot be said to have purchased the machine for a ''commercial purpose'' inasmuch as the basic pre-requisite of large scale trading or business activity for purpose of making profit is totally absent. We hold that the view concurrently expressed by the District Forum and the State Commission that the complainant is not a ''consumer'' entitled to invoke the jurisdiction of the consumer forum is incorrect and the said finding will stand set aside. On the merits it is clearly made out by the complainant that the copier supplied to the complainant was malfunctioning from the every day on which it was first put to use and that despite its having been given to the dealer for repair on six occasions the defects were such that they could not be set right and hence the machine was returned by the purchaser to the dealer of the Opposite Party in Ernakulam on 19.9.1989. In such circumstances of prayer of the complainant for refund of the price paid for the copier has to be allowed. There is also a further prayer for the grant of Rs. 5,000/- as compensation for the inconvenience, harassment and mental tension etc. and for the expenses incurred for taking the machine for repairs. In our opinion the petitioner is entitled to get interest at 18% per annum on the amount of the price paid by her. We also award her a compensation of Rs. 2,000/- for the inconvenience, mental tension, etc. to which she was subjected to.
The impugned orders are vitiated by an errors of law going to the root of the jurisdiction of the Forums to entertain and adjudicate upon the complaint. We accordingly allow this Revision Petition, set aside the orders passed by the State Commission and the District Forum and allow the complaint petition by directing that the respondents herein shall- (1) refund to the complainant on behalf of Mrs. Shanta Manuel the full price paid for the copier sold to her on 9.4.1989 with interest at 18% from the said date till the date of payment and
(2) pay to the complainant on behalf of the consumer a sum of Rs. 2,000/- by way of compensation for the inconvenience and mental tension etc. caused to her. The revision petitioner will also be entitled to recover a sum of Rs. 1,000/- by way of costs from the respondent.
Appeal allowed.