ORDER

Amit Kumar Shroff, the complainant herein has filed this consumer complaint alleging that he is a Chartered Accountant. He, being a handicapped person inflicted with Polio-

myelitis, with a view to generate earning for his future living entered into a Memorandum of Understanding (MOU) for setting up a 22 Units Boarding & -2- Lodging Hotel, measuring approximately 9000 sq. ft. A copy of the MOU entered into between the OP and the complainant is placed on the Paper Book. The MOU provided for the rights and obligations of the OP, which is designated as the party Of The First Part and the complainant, who is described as the party Of The Second Part. The consideration agreed to be paid by the complainant for the services to be rendered by the OP was agreed to be Rs.2,70,00,000/- (Rupees Two Crores Seventy Lacs only) including the value of the plot plus construction of hotel building with fully furnished furniture matches with good professional hotel. Pursuant to the MOU, the complainant paid a sum of Rs.5 Lacs to the OP vide cheque dated 31.03.2007 and promised to pay the balance of Rs.2, 65,00,000/- as per the terms and conditions of the MOU. It is alleged that the OP was required to obtain necessary permission and approval from the authorities. The OP, however, has failed to fulfill his obligations under the agreement/MOU which, according to the complainant, amounts to deficiency in service, which has led to the filing of the present consumer complaint. -3- 2. We have heard Sh. Uday Prabhu, the Authorized Representative of the complainant and perused the record. Perusal of the MOU clearly indicates that it has been entered into between the complainant and the OP for a commercial purpose, namely, raising of a 22-Units Boarding & Lodging Hotel. When confronted with this fact, Sh. Uday Prabhu, contended that the complainant is a practicing Chartered Accountant and since he is handicapped, he wanted to construct the 22-Units Boarding and Lodging Hotel with a view to create a source of livelihood for himself and as such, he was covered by the explanation to the definition of onsumergiven in Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986. Since we were not convinced, the Authorized Representative of the complainant sought and was allowed time to contact the complainant on telephone and then to revert after seeking instructions whether the complainant would like to pursue the complaint or not. He, however, has not turned up despite repeated calls. 3. Section 2 (1) (d) (ii) deals with the definition of onsumer Relevant portion of the said section is reproduced thus: -4- ires or avails of 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 or avails of 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 but does not include a person who avails of such services for any commercial purposes; 4. On reading of the aforesaid provision, it is evident that if a person avails service of OP for any commercial purpose, he does not qualify to be a consumer under the definition provided in the Consumer Protection Act. This, however, is subject to the exception given in the explanation to Section 2 (1) (d) (ii), which is reproduced thus: xplanation.For the purposes of this clause, ommercial purposedoes not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;

5. On reading of the explanation, it is clear that commercial purpose does not include availing of services by the complainant exclusively for the purposes of earning his livelihood by means of self-employment. However, admittedly as per the statemen