KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.359/2016

JUDGEMENT DATED :17.12.2024

(Against the order in C.C.No.306/2011 on the file of DCDRC, Ernakulam)

PRESENT:

APPELLANT:

(by Adv. George Cherian Karippaparambil and Adv. S. Reghukumar)

Vs.

RESPONDENTS:

(by Adv. Thomas M. Jacob)

JUDGEMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  :  PRESIDENT

          The appellant is the complainant in C.C.No.306/2011 on the files of the District Consumer Disputes Redressal Commission, Ernakulam (for short ‘the District Commission’), who in this appeal challenges the order passed by the District Commission dismissing the complaint, stating that the complainant is not a consumer coming within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 (for short ‘the Act’).

          2.       The complainant is the Proprietor of M/s Jayem Agencies.  The complainant had taken a godown on lease from a private party for the purpose of storing the products of M/s Samsung Electronics India Pvt. Ltd.  The complainant is doing the said business for his livelihood by means of self- employment. 

          3.       The 1^st opposite party is a leading manufacturer of lift and the 2^nd opposite party is the dealer of the 1^st opposite party.  A lift was purchased from the 2^nd opposite party by the complainant.  However, the said lift was having some defects.  Therefore, the complainant approached the opposite parties for curing the defects.  The opposite parties were not prepared to rectify the defects.  Because of the defects, the lift was not working properly and hence, it could not be installed properly.  The opposite parties admitted that there was a design defect for the lift, contended by the complainant.  Even though the complainant had repeatedly contacted the opposite parties to rectify the defects, the opposite parties did not incline to rectify the defects.  A lawyer notice was also issued to the opposite parties but the opposite parties did not turn up to repair the lift.  In the said circumstances, the complainant filed the above complaint alleging deficiency in service and unfair trade practice against the opposite parties.

          4.       The opposite parties filed version admitting the purchase of the lift by the complainant from the 2^nd opposite party.  However, they contended that the complainant is a dealer of M/s Samsung Electronics India Pvt. Ltd. and hence the lift was purchased for the commercial purpose of the complainant.  Consequently, the complainant would not come within the ambit of ‘consumer’ as defined under Section 2(1)(d) of the Act.   It is contended by the opposite parties that the complainant had manipulated the dimensions of the lift.  The complainant also placed four guide rails on the sides with double wheels on the guide rails, to support extra weight and increase the platform size.  It is alleged that there was no deficiency in service on the part of the opposite parties. 

          5.       Initially, as per order dated 09.06.2012, the complaint was allowed ex-parte, against which the opposite parties filed appeal before this Commission.  As per judgement in Appeal No. 866/2012, the matter was remitted to the District Commission for disposing of the complaint on merits, in accordance with law. 

          6.       Before the District Commission, PW1 and PW2 were examined and Exhibits A1 to A10 were marked for the complainant.  DW1 and DW2 were examined and Exhibits B1 to B7 were marked for the opposite parties.  Exhibit C1 was also marked.

          7.       After evaluating the evidence, the District Commission dismissed the complaint, stating that the complainant is not a consumer coming within the ambit of Section 2(1)(d) of the Act. 

 8.      Heard.  Perused the records.

9.       It is borne out from the order impugned that the District Commission had dismissed the complaint finding that the complainant would not fall within the ambit of ‘consumer’ as defined under Section 2(1)(d) of the Act.  The District Commission proceeded on the assumption that it was the burden upon the complainant to establish that the lift was purchased by the complainant not for the commercial purpose.  In the first paragraph of the complaint itself, the complainant had clearly stated that the complainant had purchased the lift for his godown and the said godown was being used for the purpose of his livelihood by means of self-employment.  Since the complainant had specifically alleged in the complaint that the complainant is conducting business for his livelihood, the burden of the complainant was prima facie discharged.

10.     The opposite parties contended that the complainant is a dealer of M/s Samsung Electronics India Pvt. Ltd.  However, apart from the said contention, there is absolutely no material to show that the complainant is the dealer of M/s Samsung Electronics India Pvt. Ltd. as alleged by the opposite parties.  The opposite parties could have adduced positive evidence to show that the complainant was a dealer of M/s Samsung Electronics India Pvt. Ltd.   It was the duty of the opposite parties to establish that the purpose for which the lift was purchased was a commercial purpose.  However, the opposite parties miserably failed to establish that the complainant had purchased the lift for his commercial activities.

11.     The District Commission proceeded to pass the order on the basis of conjectures and surmises without having any factual foundation.  It is to be noted that the complainant did not purchase the lift for the purpose of sale.  The lift was purchased for being used as an infrastructure for the establishment of the complainant.  Here, the complainant’s establishment is a godown which is used for the storage of goods by M/s Samsung Electronics India Pvt. Ltd.  Therefore, we see that the lift is not directly linked to the actual activity being carried on by the complainant at the premises. 

12.     It was the bounden duty of the opposite parties to establish that the purpose was not for the livelihood of the complainant.  In the absence of any such evidence, the District Commission was perfectly not justified in dismissing the complaint as above.

13. The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, 'commercial purpose' is understood to include manufacturing / industrial activity or business - to - business transactions between commercial entities. The purchase of the good or service should have a close and direct nexus with a profit - generating activity.  The identity of the person making the purchase or the value of the transaction is not conclusive that it is for a commercial purpose.  It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of 'generating livelihood by means of self - employment' need not be looked into. The above view gains support from the decision of the Hon’ble Supreme Court in Leelavathi Kirtilal Medical Trust v. Unique Shanti Developers, reported in  2020 (2) SCC 265 : 2019 KHC 7135.

14.     At this juncture, it is relevant to mention the decision of the Hon’ble Supreme Court in Shriram Chits (India) Pvt. Ltd. Earlier known as Shriram Chits (K) Pvt. Ltd.) vs Raghachand Associates reported in 2024 KHC 6279 : 2024 INSC 403.  The Hon’ble Supreme Court in the above said decision held in paragraph 20 as hereinunder:-

“20.  As we have shown above, the definition of consumer has three parts. The significance of deconstructing the definition into three parts was for the purpose of explaining on whom lies the onus to prove each of the different parts. There can hardly be any dispute that the onus of proving the first part i.e. that the person had bought goods / availed services for a consideration, rests on the complainant himself. The carve out clause, in the second part, is invoked by the service providers to exclude the complainants from availing benefits under the Act. The onus of proving that the person falls within the carve out must necessarily rest on the service provider and not the complainant. This is in sync with the general principle embodied in S.101 and S.102 of the Evidence Act that 'one who pleads must prove'. Since it is always the service provider who pleads that the service was obtained for a commercial purpose, the onus of proving the same would have to be borne by it. Further, it cannot be forgotten that the Consumer Protection Act is a consumer - friendly and beneficial legislation intended to address grievances of consumers (National Insurance Co. Ltd. v. Harsolia Motors and Ors., 2023 (8) SCC 362). Moreover, a negative burden cannot be placed on the complainant to show that the service available was not for a commercial purpose”.

15.    The Hon’ble Supreme Court further held in paragraph 22 in Shriram Chits (India) Pvt. Ltd. Earlier known as Shriram Chits (K) Pvt. Ltd.) vs Raghachand Associates (supra) as hereinbelow:-

“22.  If and only if, the service provider discharges its onus of showing that the service was availed, in fact for a commercial purpose, does the onus shift back to the complainant to bring its case within the third part, i.e. the Explanation (a) to S.2(7) - to show that the service was obtained exclusively for the purpose of earning its livelihood by means of self – employment”.

16.   The position of law discussed above would make it clear that the mere plea is not sufficient.  It is necessary for the service provider to establish, by adducing evidence, that the purchase of the good had a close and direct nexus with the profit - generating activity of the complainant. Even in the absence of a plea of livelihood, it is the burden on the service provider to prove that the purchase of the good by the complainant was for his commercial activity and not for his livelihood. 

17.    Applying the above principles to the facts of the present case, we find that there is no direct nexus between the purchase of the lift by the Appellant/complainant and its profit generating activities.  In the said circumstances, the dismissal of the complaint holding that the complainant was not a consumer coming within the ambit of Section 2(1)(d) of the Act, cannot be sustained. Therefore, the order passed by the District Commission cannot be sustained and consequently we set aside the same.

In the result, this appeal stands allowed, order dated 01.10.2015 passed by the District Commission in C.C.No.306/2011 stands set aside with a direction to the District Commission to dispose of the complaint in accordance with law, as expeditiously as possible and at any rate within six months from the date of receipt of this judgement, affording reasonable opportunity to both sides, untrammelled by any of the observations made in the order impugned.

The District Commission will issue notice to both sides for their appearance before the District Commission.

SL