Shalini Shrivastava vs Ganrel Singh

Anup K. THAKUR, J.

This Revision Petition under section 21(b) of the Consumer Protection Act, 1986 has been filed by the petitioner/complainant against the order dated 23.12.2015 passed by Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (State Commission) in FA No.495/2014.

Brief facts of the case, as per the petitioner/complainant are that she availed a loan of Rs.23.80 lakh from Bank of Baroda, Raipur, under the "Prime Minister Employment Creation Programme" and started a business of manufacturing Fly Ash Bricks. The respondent/ opposite parties are in the business of supply and installation of machineries for manufacture of Fly Ash Bricks. They duly contacted the petitioner/complainant on 5.10.2009 and provided a quotation of Rs.15,96,000/- for supply and installation of a fly ash brick manufacturing unit. With this quotation, the bank loan process with Bank of Baroda was completed successfully and the total amount paid to the respondent company through the Bank. While the respondents had assured that in the event of advance payment, the task would be done within 45 days, and the unit would churn out 1200 to 1500 bricks per hour, there was deficiency on both these counts. The installation was delayed by 52 days and the output of bricks was only 300-400 bricks per hour. Complainant got an inspection carried out by M/s Techno Engineering Works, Raipur which revealed poor quality machines, and incorrect installation. This meant that the complainant incurred losses in lakhs of rupees. She complained several times to the respondent/opposite parties but got no relief. Thus, the petitioner/complainant, alleging serious deficiency in service, filed a consumer complaint before the District Forum seeking award of Rs.16,75,800/- with interest, Rs.15,000/- for repair, Rs.45,000/- for construction of additional shed, Rs.1 lakh as compensation and Rs.25,000/- as legal cost.

This complaint was contested. The opposite parties in their reply took the stand that the machine purchased by the complainant was for commercial purpose, and thus the complainant was not a "consumer". On merits, the stand was that there had been no laxity in the installation of the machine. Responding to the petitioner/complainant's letter dated 21.9.2010 seeking information on the use of machine, on 5.10.2010, the opposite party had inspected the machines and provided complete information and also carried minor maintenance work to the complainant's satisfaction. If the raw material is of inappropriate quality and not in the in right quantity, production of good quality brick would not be possible. Therefore, argued the respondent/opposite parties, the complaint was liable to be dismissed.

In the first round of litigation, the District Forum, Raipur, vide order dated 2.6.2011, dismissed the complaint on the ground that the matter involved complicated question of law and facts which could not be adjudicated in a summary trial.On appeal, the State Commission, Chhattisgarh, vide its order dated 16.11.2011, allowed the appeal and remanded the matter back to the District Forum for fresh disposal on merits. The District Forum vide its order dated 16.6.2014, partly allowed CC No.50 of 2011 and directed the following.

a. "Opposite parties to take back the above unit from the complainant to pay Rs.16,75,800/- (Rupees sixteen lakhs seventy five thousand and eight hundred) cost of above unit with 9% annual interest on the above amount from the order date 29.1.2011.

b. Opposite parties to pay the expense of machine repairs Rs.15,000/- (Rupees fifteen thousand only) and for the construction of additional shed Rs.45,000/- (Rupees forty five thousand only) to the complainant.

c. Opposite parties, for mental and financial losses to pay Rs.1 lakh (Rupees one lakh only) to the complainant.

d. Opposite parties, in the form of litigation charges and advocate fee to pay Rs.2,000/- to the complainant."

Dissatisfied with this order, respondent/opposite party No.2- Ganrel Singh filed an appeal before the State Commission, Chhattisgarh, who vide its order dated 23.12.2015, allowed the appeal on the ground that the complainant had purchased the machine for commercial purpose. Hence, the petitioner/complainant did not come under the category of "Consumer" under Section 2(1) (d) of the Consumer Protection Act, 1986.

Aggrieved, this revision petition along with application for condonation of delay of 44 days, seeking the following relief :-

a. "It is therefore prayed to the Hon'ble Commission that the revision petition of the petitioner/ complainant may kindly be allowed and the order passed by the C.G.State Consumer Commission may kindly be dismissed."

We have heard learned counsel for the petitioner and gone through the record.

On 30.10.2017, we asked the petitioner as to how she was a consumer under the CPA 1986. Her counsel sought time to file an appropriate affidavit with some key information such as when was the company registered, when did it start functioning, how many employees were engaged/proposed to be engaged. The first affidavit dt. 23.12.2017 only stated that "...I am an unemployed educated lady and for the self employment and for the livelihood of my family I have taken the loan Under Prime Minister Rojgar Srijan Program...". It said nothing on other queries made. A further four weeks was sought by the counsel for the petitioner and another affidavit dt. 31.3.2018 was filed. In this, it was submitted that M/s Srinath Bricks Industry was registered on 15.12.2010 and commenced production on 30.07.2010. It was further submitted that at the time of registration, there were 10 employees comprising 8 unskilled, 1 skilled and 1 manager or extracting the words from the affidavit "one employee to manage for management."

A plain reading of the affidavit suggests that the petitioner/complainant cannot be classified as a consumer as envisaged in section 2(1)(d)(ii)&(iii) of the Consumer Protection Act 1986 as amended in 1993 and again in 2003. A consumer under under this section is any person who buys any goods or hires/avails of any services for a consideration but excludes a person who obtains such goods for resale or any commercial purpose or avails of such services for any commercial purpose. The only exception to this exception has been provided by way of an explanation which clarifies that "for the purposes 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."

Now, whether or not a service hired is for commercial purpose, and if so, whether or not it is for earning livelihood through self employment is a matter of fact in each case. In the case at hand, it is an admitted position that a loan upwards of Rs. 23 lakh has been taken for establishing and running a bricks manufacturing unit employing 10 persons, including a manager. These facts make it manifestly clear that hiring services of the respondent to supply and install machineries cannot be classified as a service hired for self employment to earn livelihood. What is self employment and livelihood is no longer res integra, having been settled by the Apex Court in a number of rulings which have been mentioned in the impugned order of the State Commission.

We therefore agree with the finding of the State Commission that the petitioner/complainant is not a consumer under the CPA 1986. Consequently, this is not a consumer dispute and hence not maintainable. Thus, there being no error apparent of either fact(s) or law in the order of the State Commission, it is confirmed and this Revision Petition dismissed with no order as to costs.