1. THIS order will dispose of the above three first appeals as all of them arise out of the Order passed by State Consumer Disputes Redressal Commission, Pondicherry in D No. 1 of 1991. The said complaint was filed by the appellants in Appeal No. 465 of 1993 against M/s. Madras Carbons Ltd. (Appellant in Appeal No. 296/93 and hereinafter referred to Opposite Party No. 1) and M/s. Catvision Products Ltd. (Appellant in appeal No. 221 /93 and hereinafter referred to as Opposite Party No. 2).
2. THE appeal by the Madras Carbons Ltd. has been filed after a delay of 37 days. Application for condonation of delay has been filed. Though the grounds mentioned in that application do not show sufficient cause for condoning the delay, but in the present case as we are of the opinion that the order of the State Commission is without jurisdiction, we condone the delay.
The facts of the case are that the Complainant placed a purchase order on 5th December, 1989 for EPABX system Model UE -115 with the Opposite Party No. 2 who in turn placed order with Opposite Party No. 1. Alorigwith the purchase order Complainant paid Rs. 13,000/ - as advance to Opposite Party No. 1 on 11.1.1990. The system was delivered on 28.3.1990 upon payment of Rs. 1,01,889.71. The total payment made represented 95% of the value of the goods ordered. The printer and the printer card were not supplied and the dialing facility was missing. From the date of the installation the system was not working properly. It was taken several times to Madras (where the office of Madras Carbons Ltd. is situated) and twice to Delhi (where the Head Office of Opposite Party No. 2 is situated) during the period of nine months. Finding that the system Was not working properly the Opposite Party No. 2 provided a ''stand -by system''. Even that was not functioning properly. Finally the purchase manager of the Complainant went to Delhi and met the Director of Opposite Party No. 2. Upon the assurance of the Director of Opposite Party No. 2 the system was released for rectification on 24.10.1990 and the Complainant was assured that the system would be rectified and re -installed on 31.10.1990. It was further the case of the Complainant that even the proforma invoice was for the Model UE -115, but only Model UE -28 was supplied. When the Complainant lost hope that the system supplied would work, he approached the State Commission and prayed for a direction to Opposite Party No. 2 to refund Rs. 1,33,525.55 with interest at the rate of 25% per annum and suitable compensation for loss of business.
3. THE first Opposite Party i.e. the Madras Carbons Pvt. Ltd. took a stand that the transaction was between the Complainant and the Opposite Party No. 2 i.e. M/s. Catvision Products Ltd. and it was only a middleman who acted upon the instructions of the Opposite Party No.2 and therefore, it was not a necessary party to the case. The State Commission rejected the plea and hold that Opposite Party No. 1 was an agent of Opposite Party No. 2 who actually sold the system, therefore the Complainant was entitled to seek relief against both of them.
4. OPPOSITE Party No. 2, while admitting the transaction and the failure of the system averred that the system was taken to Delhi and was fully rectified and tested. It was satisfactorily re -installed at the office of the Complainant on 2.11.1990. However, no report of satisfactory recommissioning was issued. The Complainant was insisting that the system should be kept under watch for a weeks time. When the Engineer from Madras returned to Pondicherry (where the office of the Complainant is situated) for a weeks stay he discovered that some extensions of the system were not working. However, when he offered to rectify the problem he was refused access to the equipment. He was also told by some member of the staff that some local dealer called Saraj Electronics had tampered with the system subsequent to which the system stopped functioning. The Opposite Party No. 2 concluded by saying that their warranty and undertaking was no longer valid and that they were entitled for compensation for the equipment illegally retained by the Pragati Computers i.e. the stand by system.
The State Commission vide impugned Order directed that the Opposite Parties to refund half of the amount of Rs. 133,525.55 paid by the Complainant within a period of three months, failing which the amount would carry interest at the rate of 18% per annum from the date of the order till the date of full payment. It further directed that the payment would take place upon the complainant handing over all the equipments including the stand -by system provided to him by the Opposite Parties. Only half of the amount was ordered to be refunded as the Complainant had used the stand -by system for three years.
5. THE contention of the learned Counsel for the Appellants in Appeals Nos. 221 and 296 of 1993 is that the Complainant had purchased the system for a commercial purpose and therefore he is not a ''consumer'' as defined in the Act, 1986 (for short the Act). Reliance was placed upon the definition of the ''consumer'' as given in Section 2(1)(d)(i) of the Act, 1986 which reads as follows : (d) ''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'' It may be mentioned here that an Explanation was inserted in Clause (d) of Section 2(1) of the Act by the Consumer Protection Amendment Act, 1993. The said Explanation reads as follows : ''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 selfemployment'' . The learned Counsel placed reliance upon the decision of the Supreme Court dated April 4, 1995 passed in C.A. No. 4193 of 1995 (arising out of S.L.P. (C) No. 6290 of 1994) titled Laxmi Engineering Works v. P.S.G. Industrial Institute. We need not discuss the above contention in detail as the matter stands covered by the observation of the Supreme Court in the above referred case. The Supreme Court has remarked : ''The National Commission appears to have been taking a consistent view that where a person purchase goods ''with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit'' he will not be a ''consumer'' within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion - the expression ''largescale'' is not a very precise expression - the Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. 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 earning 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, if 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 or 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 selfemployment'' 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 emphasise 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, the 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 expression ''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.'' Yet another clarification; the Explanation, in our opinion is only explanatory; it is more in the nature of a clarification -a fact which would become evident if one examines the definition (minus the explanation) in the context and scheme of the enactment. As indicated earlier, the explanation broadly affirms the decisions of the National Commission. It merely makes explicit what was implicit in the Act. It is not as if the law is changed by the said explanation; it has been merely made clear.''
6. THE Supreme Court also referred to its observations in Morgan Stanley Mutual Fund v. Kartick Das II (1994) CPJ 7 (SC)=1994 (4) SCC 225 : ''The consumer as the terms implies is one who consumes. As per the definition, a consumer is the one who purchases goods for private use or consumption. The meaning of the word consumer is broadly stated in the above definition so as to include anyone who consumes goods or services at the end of the chain of production. The comprehensive definition aims at covering every man who pays money as the price or cost of goods and services. The consumer deserves to get what he pays for in real quantity and true quality. In every society, consumer remains the centre of gravity of all business and industrial activity. Heneeds protection from the manufacturer, producer, supplier, wholesaler and retailer''.
The Supreme Court arrived at the following conclusions : ''We must, therefore, hold that (i) the explanation added by the Consumer Protection (Amendment) Act 50 on 1993(replacing Ordinance 24 of 1993) with effect from 18.6.1993 is clarificatory in nature and applies to all pending proceedings. (ii) Whether the purpose for which a person has bought goods as a ''commercial purpose'' within the meaning of the definition of expression ''consumer'' in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case. (iii) A person who buys goods and use them himself, exclusively for the purpose of earning his livelihood, by means of self -employment is within the definition of the expression ''consumer''.
7. IN the present case the EPABX system was purchased by the Complainant -Company for the better management of the business of the Company It cannot be said that the Complainant purchased the EPABX system exclusively for the purpose of earning livelihood by means of self -employment. Thus, this case will not fall under the explanatory clause referred to above. Hence, it is held that the purchase of the EPABX system by the Complainant was for commercial purpose.
8. IN the light of the above discussions, we accept the Appeal Nos. 229 of 1993 and 296 of 1993 and set aside the impugned order of the State Commission and dismiss the complaint filed by M/s. Pragati Computers Ltd., appellant in First Appeal No. 465/1993. The appeal filed by the Complainant for enhancement of the amount awarded by the State Commission automatically fails. We make it clear that the Complainant will be at liberty to file a suit for the relief claimed in dispute. In such a case we are sure the Court will give the benefit of Section 14 of the Limitation Act to exclude period spent in prosecuting the proceedings under the Consumer Protection Act while computing the period of limitation prescribed for such a suit. We will make no order as to costs in these appeals. Appeal dismissed.
