Full Judgment Text
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PETITIONER:
M/S. CHEEMA ENGINEERING SERVICES
Vs.
RESPONDENT:
RAJAN SINGH
DATE OF JUDGMENT: 01/11/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
Present:
Hon’ble Mr. Justice K.Ramaswamy
Hon’ble Mr. Justice G.B. Pattanaik
C.S. Vaidyanathan, Sr. Adv., Rajesh K. Sharma, Rakesh
K. Sharma, Ms. Shalu Sharma, Advs. with him for the
appellant
B.Parthasarthy, Adv. for the Respondent
O R D E R
The following order of the Court was delivered:
Leave granted.
We have heard learned counsel on both sides.
The only question for consideration is : whether the
respondent has been using the machine "Brickman" for clay
preparation, brick moulding, brick drying and brick burning,
after purchasing the same from the appellant for evening his
livelihood within the meaning of Explanation to section
2(1)(d) of the consumer Protection Act, 1986? Section
2(1)(d) reads as under:
"Consumer" means any person who:-
(i) buys any goods for a
consideration which has been paid
or promised or partly promised, or
under any system of deferred
payment and includes any user of
such goods other then the person
who buys such goods for
consideration paid or promised 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 ay
commercial purpose; or
(ii) hires any services 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 beneficiary of such
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services other than the person who
hires the services for
consideration paid or promised, or
partly paid and partly promised, or
under any system of deferred
payment, when such services are
availed of with the approval of the
first mentioned person."
If any goods are purchased for consideration, paid or
promised or partly paid or under any system of deferred
payment including any user of such goods other than the
person who by such goods for the 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, the purchaser is the ’consumer’
within the meaning of the Act. But the Act provides for
certain exceptions, namely, "does not include a person who
obtains such goods for resale or for any commercial purpose;
or..."
The Explanation to the definition of ’consumer’ has
been added by way of an amendment in 1993 which reads as
under:-
"Explanation,--For the purpose of
sub-clause (i), "Commercial
purpose" does not include use by a
consumer of goods bought and used
by him exclusively for the purpose
of earning his livelihood, by means
of self-employment."
In other words, the Explanation excludes from the ambit
of commercial purpose in sub-clause (i) if section 2(1)(d),
any goods purchased by a consumer and used by him
exclusively for the purpose of earning his livelihood by
means of self-employment. Such purchase of goods is not a
commercial purpose. The question, therefore, is : whether
the respondent has been using the aforesaid machine for
self-employment? The word ’self-employment ’is not defined.
Therefore, it is a matter of evidence. Unless there is
evidence and on consideration thereof it is included that
the machine was used only for self-employment to earn his
livelihood without a sense of commercial purpose by
employing o regular basis the employee or workmen for trade
in the manufacture and sale of bricks, it would be for self-
employment. Manufacture and sale of bricks in a commercial
way may also be to earn livelihood, but "merely earning
livelihood in commercial business", does not mean that it is
not for commercial purpose. Self-employment connotes
altogether a different concept, namely, he alone uses the
machinery purchased for the purpose of manufacture by
employing himself in working out or producing the goods for
earning his livelihood. ’He’ includes the members of his
family. Whether the respondent is using the machine
exclusively by himself and the members of his family for
preparation, manufacture and sale of bricks or whether he
employed any workmen and if so, how many, are matters of
evidence. The burden is on the respondent to prove them.
Therefore, the Tribunals were not right in concluding that
the respondent is using the machine only for self-employment
and that, therefore, it is not a commercial purpose. The
orders of all the Tribunals stand set aside. The matter is
remitted to the District forum. The District Forum is
directed to record evidence of the parties and dispose it of
in accordance with law within a period of six months from
the date of receipt order.
The appeal is accordingly allowed. No costs.
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