Sri Shyamal Gupta, Member

Aggrieved with the decision of the Ld. District Forum which has dismissed the complaint case, this Appeal is filed by Sri Archa Kumar Banerjee & Another.

It appears that the instant complaint case was dismissed, because in the opinion of the Ld. District Forum, since the Appellant No. 2 is a partnership firm and some payments in respect of the subject elevator were made by it, the instant case was not maintainable.

The moot point for consideration in this Appeal is whether the Appellants can be treated as a ‘consumer’ or not.

Heard both sides and gone through the documents on record.

In terms of the Sec. 2(1)(d)(i) of the Consumer Protection Act, 1986, ‘consumer’ means any person, who 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 such goods for resale or for any commercial purpose.

On a plain reading of the above definition, it appears that, for the purpose of determination of one’s status as a ‘consumer’, it is imperative to see whether the purpose behind purchase of goods is commercial or whether it was purchased for re-selling or not.  In this case, necessary order for purchasing an elevator was issued by the Appellants.  The name of the Appellant No. 2 itself is suggestive of the fact that it is a Construction Company.  Therefore, it can safely be inferred that order for installation of the subject elevator was not placed for re-sale purpose. 

Now, let us see, whether through installation of an elevator, one can gain any commercial profit or not.  Certainly, the answer would be in the negative for the simple reason that the Appellant had no such motive to make profit through installation of the said lift.  It is installed ostensibly for the purpose of facilitating smooth movement of people.  By no stretch of imagination any direct nexus can be seen between usage of an elevator and generation of profit. Ld. Advocate for the Respondents though drew our attention to the legal notice dated 19-09-2014, issued by the Ld. Advocate of the Appellants, where the Ld. Advocate alleged that on account of non-installation of the elevator, the Company was suffering business loss worth Rs. 3,000/- per day, there is every reason to believe that it was purposely done to create pressure upon the Respondent to expedite the work of installation and commissioning of the lift in question and nothing else; mere claim/allegation does not prove anything.

In this regard, some of the observations of Hon’ble National Commission bear mentioning.

In Bhuperndra Guna Vs Regional Manager and others (II 1995 CPJ 139) the Hon’ble National Commission held that a tractor purchased primarily to till the land of the purchaser and let or on hire during the idle time to till the lands of others would not amount to commercial use.

In C.P.Moosa v. Chowgle Industries Ltd., 2001 CPJ 39 NC, the Appellant had purchased EPBAX system for his hotel with warranty and annual maintenance contract.  The Hon’ble Commission held that the case falls u/s 2(1)(d)(ii) and Appellant was allowed compensation.

In Dr. Vijai Prakash Goyal v. The Network Ltd., 1998 CPJ 131 NC, the Revision was filed over dismissal of the complaint case on the ground that the Complainant was not a consumer.  Petitioner filed complaint, inter alia, stating that, he, along with his wife was running a maternity home and placed an order for supply of ultrasound scanner on the Respondent/OP.  Allegedly, post installation, the machine went out of order.  Service Engineer deputed by the Respondent on checking found that the machine needed to be replaced, but the Respondent did not replace/repair the machine.  Respondent contested the complaint by filing WV.  Purchase of subject machine was not denied though it disputed the status of the Appellant as a consumer.  Reiterating its earlier orders in Jay Kay Puri Engineers & Ors. v. Mohan Breviaries & Distilleries,  I (1998) CPJ 38 (NC) and many others, the Hon’ble Commission held that purchase of a machine would be a consumer if the defect in machine develops within warranty period nonetheless the machine was purchased for commercial purpose.

Similar view has been taken in Super Computer Centre v. Globiz Investment Pvt. Ltd., III (2006) CPJ 265.

Fortified by above decisions, as also that of our findings in the matter, we cannot concur with the findings of the Ld. District Forum.  In our considered view, the Appellants happen to be bona fide consumers and accordingly, the instant complaint case is maintainable under the Consumer Protection Act.

Since the allegations raised in the petition of complaint are to be proved following due process of law, we refrain from delving into the merit of the case at this stage and deem it fit and proper to remand the case to the Ld. District Forum for fresh adjudication of the matter on merit.

The Appeal, thus, succeeds in part.

Hence,

O R D E R E D

The Appeal stands allowed on contest against the Respondents in part.  The impugned order is hereby set aside. Parties to appear before the Ld. District Forum on 05-10-2018 for adjudication of the matter on merit.