6. On perusal of the complaint it appears that it is not the case in which the complainants have hired or availed the services of the opposite parties exclusively for the purpose of earning livelihood by means of self-employment. The following allegations in the complaint support our view: -
“The Complainant No.l, offers various diagnostic services from his abovementioned clinic which was set up in the year 1994.The Complainant No.l offers the following services viz: Digital X-ray, Digital Sonography, Whole Body Colour Doppler Sonography, 2D Colour Echo Cardiography, Digital OPG, Digital Lateral Cephalogram, 3D & 4D Sonography and various other pathology services.
The Complainant No.l has a staff of 10 people in the said clinic. The said staff also includes one associate Doctor. The said clinic of the Complainant No.l admeasured only 850 Sq.ft. and was insufficient for carrying on various activities listed above. Further there was no facility in Goregaon (W) area which provided for C.T. Scan and M.R.I. in the year 2003. The Complainant No.l being Radiologist saw this as an opportunity to establish a state of the art Radiology Centre in Goregaon (West). For the said purpose complainant’s existing clinic was wholly insufficient as the set up for a C.T. Scan requires atleast 500 Sq.ft. area and set up for M.R.I. requires atleast 800 Sq.ft.”
7. On reading of the above, it is clear that complainant No.1 is a Radiologist having a clinic with a staff of 10 persons including associate Doctors. Thus, it is clear that before hiring or availing the services of the opposite parties, complaint No.1 was running business of Radiologist with the assistance of associate Doctors and support staff. This clearly indicates that the complainant No.1 was not only earning livelihood before booking of the commercial premises but he was also providing employment to 10 persons. That being the case, the case of the complainants does not fall within the explanation to Section 2 (1) (d) of the Act. In aforesaid view, we are supported by the judgment of Hon’ble Supreme Court in the matter of Lakshmi Engineering Works vs. P.S. G. Industrial Institute (1995) 3 SCC 583. Relevant observation of Hon’ble Supreme Court reads as under: -
“The explanation excludes certain purposes from the purview of the expression "commercial purpose" - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition of expression "consumer". If the commercial use is by the purchaser himself for the purpose of earing his livelihood by means of self-employment, such purchaser of goods is yet a "consumer". In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self- employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasis what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words.
| NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION | |||||
| NEW DELHI | |||||
| CONSUMER CASE NO. 2121 OF 2016 DOD Dated : 23 Feb 2017 Source http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FCC%2F2121%2F2016&dtofhearing=2017-02-23 | |||||
6. In order to get benefit of the Explanation, the complainants are required to prove that they had booked the units in question exclusively for the purpose of earning livelihood by way of self-employment. The use of the word ‘earning livelihood’ makes it clear that the benefit of the Explanation can be extended only to a natural person and not to a distinct person. The complainants admittedly are private limited companies. Therefore, the restricted definition of “Commercial Purpose” given in the Explanation cannot be extended to them. Otherwise also, in paragraph 1 of the respective complaints, it is categorically stated that the complainants companies at the time of booking of the units were already engaged in profitable business albeit in rented accommodation. Therefore, it cannot be said that the commercial units which are subject matter of the complaints were booked exclusively for the purpose of earning livelihood by way of self-employment. Thus, by no stretch of imagination, the benefit of Explanation can be extended to the complainants.
In
| NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION | |||||
| NEW DELHI | |||||
| CONSUMER CASE NO. 1157 OF 2016 | |||||
| ...........Complainant(s) | ||||||||||||||||||||||||||||||||||||
| Versus | |||||||||||||||||||||||||||||||||||||
| ...........Opp.Party(s) Dated : 05 Aug 2016 | ||||||||||||||||||||||||||||||||||||
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