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2024 (5) TMI 608 - SC - Indian LawsSeeking refund of chit amount deposited until stoppage of the business - illegal termination of the chit fund business and consequent non-refund of the subscription amount - deficiency of service - OP refused to re-pay the subscription amount since, according to it, the complainant owed certain dues to it and therefore, it adjusted the subscription amount against pending dues of the complainant. The OP had raised a plea in its version that the complainant does not satisfy the definition of consumer since the service was obtained for a commercial purpose. HELD THAT - The significance of deconstructing the definition of consumer into three parts was for the purpose of explaining on whom lies the onus to prove each of the different parts. There can hardly be any dispute that the onus of proving the first part i.e. that the person had bought goods/availed services for a consideration, rests on the complainant himself. The carve out clause, in the second part, is invoked by the service providers to exclude the complainants from availing benefits under the Act. The onus of proving that the person falls within the carve out must necessarily rest on the service provider and not the complainant. This is in sync with the general principle embodied in Section 101 and 102 of the Evidence Act that one who pleads must prove . Since it is always the service provider who pleads that the service was obtained for a commercial purpose, the onus of proving the same would have to be borne by it. Having held that the onus to prove that the service was obtained for a commercial purpose is on the service provider, we may clarify the standard of proof that has to be met in order to discharge the onus. The standard of proof has to be measured against a preponderance of probabilities . The test to determine whether service obtained qualified as a commercial purpose is no longer res integra in view of this Court s decision in Lilavathi v. Kiritlal 2019 (11) TMI 1824 - SUPREME COURT . Para 19 sets out the principles on which it must be determined whether the onus of proving commercial purpose has been properly discharged by the service provider. The question of inquiring into the third part will only arise if the service provider succeeds in crossing the second part by discharging its onus and proving that the service obtained was for a commercial purpose. Unless the service provider discharges its onus, the onus does not shift back to the complainant to show that the service obtained was exclusively for earning its livelihood through the means of self-employment. In the facts of this case, the OP has merely pleaded in its version that the service was obtained for a commercial purpose. No evidence has been led to probabilise its case other than merely restating its claim on affidavit. It is now well too settled that a plea without proof and proof without plea is no evidence in the eyes of law. Appeal dismissed.
Issues Involved:
1. Deficiency in service by the Opposite Party (OP). 2. Maintainability of the complaint under the Consumer Protection Act, 1986. Summary: Issue 1: Deficiency in Service by the Opposite Party (OP) The appellant, a registered Chit Fund company, challenged the order dated 10.03.2021 of the National Consumer Disputes Redressal Commission (NCDRC). The respondent had initially redressed its consumer grievance before the Principal Consumer Disputes Redressal for Bangalore Urban District, which found a "deficiency in service" by the OP. This decision was upheld by the State Consumer Disputes Redressal Commission and the NCDRC. The complainant had subscribed to a chit group for a value of Rs.1,00,000/- but alleged that the OP illegally stopped the chit business in 1996 and refused to refund the subscription amount, claiming dues owed by the complainant. The District Forum ordered the OP to refund the claimed amount with interest of 18% p.a., a decision which was upheld by the State Forum and NCDRC. Issue 2: Maintainability of the Complaint under the Consumer Protection Act, 1986 The OP raised a preliminary objection that the complaint was not maintainable as the complainant did not qualify as a 'consumer' u/s 2 (1) (d) of the Act of 1986, arguing that the service was obtained for a commercial purpose. The District Forum incorrectly addressed this by determining whether the complainant fell within the definition of a "person" u/s 2 (1)(m) of the Act. The NCDRC mirrored this approach, failing to examine whether the service was obtained for a commercial purpose. The Supreme Court clarified that the onus to prove that the service was obtained for a commercial purpose lies with the service provider. Since the OP failed to provide evidence beyond mere affidavits, the onus did not shift back to the complainant to prove that the service was for earning livelihood by means of self-employment. The Court dismissed the appeals, upholding the findings of deficiency in service by the lower forums.
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