The determination of a complainant's status as a consumer should be based on specific evidence and not swayed by technicalities of law and pleading.

Mr. Justice K.D. Shahi, Chairman—The appellant Smt. Shikha Sharma, w/o Sh. Rajiv Sharma is the proprietor of Data Management Services. She has purchased a computer for data process to earn her livelihood as alleged in the grounds of appeal. Although it is not written in the complaint. However, she has purchased a computer. It is said to be defective. She filed a complaint before the District Forum. District Forum held that the purchase was made for business purpose, hence the complainant is not a consumer. Although not very happily pleaded, but still the fact remains that this is a private partnership firm and the complainant has got no other source of earning except from the profit from this machine. The learned Forum appears to have been swayed by the observation-business loss. We do not want to go into the details. There is no happy pleading and technicalities of law and pleading do not strictly apply to consumer dispute. It is, therefore, proper that a proper finding should be given by the Forum whether the complainant is a business concern, whether the machine has been purchased for heavy profit, whether the machine has been purchased for livelihood or self-employment. Unless there is specific evidence and pleading to this effect, no proper finding could have been given. The order of the learned Forum is, therefore, to be set aside and quashed. We are also supported by the ruling of the National Commission reported in II (2003) CPJ 87 (NC). In this ruling also a computer was purchased and it was held that the Forum should not be swayed by the use of the word-business loss. It is to be decided as a fact. It has also been held in the ruling reported in I (1996) CPJ 317 (NC), Remington Rand of India Ltd. v. Pioneer Typewriter Co., that a formal partnership can always be formed to earn livelihood by the partners. If the firm purchased a machine after taking loan and if it was a small venture to earn livelihood, it cannot be said that the partnership firm was not a consumer. In view of what has been told above, the fact still remains to be decided on evidence whether the complainant is a consumer within the meaning of the Act or not. That can be decided only on evidence.

2. The case is remanded back to the learned Forum if it is found on facts and law that the complainant is a consumer then, it has to give judgment on merits after taking the evidence of the parties which has not yet been given.

ORDER

The order dated 21.6.1993 is hereby set aside. The case is remanded back to the learned Forum for fresh hearing in accordance with law in the light of observations as made above in the body of this judgment.

Appeal disposed of.

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