M/s. Cheema Engineering Services Vs. Rajan Singh
EmailAppeal: Civil Appeal No. 14787 of 1996
(Arising out of SLP (C) No.12837 of 1996)
(Arising out of SLP (C) No.12837 of 1996)
Petitioner: M/s. Cheema Engineering Services
Respondent: Rajan Singh
Apeal: Civil Appeal No. 14787 of 1996
(Arising out of SLP (C) No.12837 of 1996)
(Arising out of SLP (C) No.12837 of 1996)
Judges: K. RAMASWAMY & G.B. PATTANAIK, JJ.
Date of Judgment: Nov 01, 1996
Appearances:
Mr. C.S. Vaidyanathan, Senior Advocates, Rajesh K. Sharma, Mr. Rakesh K. Sharma, Ms. Shalu Sharma, Advocates with him for the Appellant.
Mr. B. Parthasarthy, Advocate for the Respondent.
Head Note:
Consumer Protection Act, 1986
Section 2 (1) (d) – Explanation – Consumer – Commercial purpose does not include use by a consumer for earning his lively hood by means of self employment – Held self employment is not defined and so evidence has to be there of machine being used only for self employment and without employing on regular basis an em-ployee or workers for trade in manufacturer or sale of bricks- Held burden is on respondent to prove that he alone used machin-ery for manufacture by employing himself and so it was not for commercial purpose – Order of Tribunal set aside in order to record evidence.
Held:
‘self-employment’ is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on considera-tion thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commer-cial purpose by employing on regular basis the employee or work-men for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commer-cial 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. There-fore, the Tribunals were not right in concluding that the re-spondent 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. (Para 6)
Cases Reffered:
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JUDGEMENT:
ORDER
1. Leave granted.
2. We have heard learned counsel on both sides.
3. 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 earning his livelihood within the meaning of Explanation to Section 2(1)(d) of the Consumer Protec-tion 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 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 appro-val of such person, but does not include a person who obtains such goods for resale or for any 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 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.”
4. 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 …”
5. 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 liveli-hood, by means of self-employment.”
6. In other words, the Explanation excludes from the ambit of commercial purpose in sub-clause (i) of 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 ques-tion, therefore, is: whether the respondent has been using the aforesaid machine for self-employment? The word ‘self-employ-ment’ is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employ-ment. 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 con-cept, 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 em-ployed 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 the evidence of the parties and dispose it of in accordance with law within a period of six months from the date of the receipt of this order.
7. The appeal is accordingly allowed. No costs.
1. Leave granted.
2. We have heard learned counsel on both sides.
3. 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 earning his livelihood within the meaning of Explanation to Section 2(1)(d) of the Consumer Protec-tion 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 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 appro-val of such person, but does not include a person who obtains such goods for resale or for any 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 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.”
4. 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 …”
5. 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 liveli-hood, by means of self-employment.”
6. In other words, the Explanation excludes from the ambit of commercial purpose in sub-clause (i) of 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 ques-tion, therefore, is: whether the respondent has been using the aforesaid machine for self-employment? The word ‘self-employ-ment’ is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employ-ment. 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 con-cept, 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 em-ployed 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 the evidence of the parties and dispose it of in accordance with law within a period of six months from the date of the receipt of this order.
7. The appeal is accordingly allowed. No costs.
