Holding

The onus to prove that a service was obtained for a commercial purpose rests on the service provider; if it fails to do so, the complaint is maintainable under the Consumer Protection Act.

Summary

Shriram Chits (India) Private Ltd, a chit‑fund company, sued to set aside a consumer‑forum order that ordered it to refund Rs.18,750 with interest to Raghachand Associates, the complainant, for alleged deficiency in service after the chit business was terminated. The service provider contended that the complaint was not maintainable because the service was obtained for a commercial purpose, invoking the exclusion clause in Section 2(7) of the Consumer Protection Act, 1986. The lower forums dismissed the preliminary objection and granted relief without examining whether the service was indeed for a commercial purpose. The Supreme Court examined the statutory definition of ‘consumer’, deconstructed its three‑part structure, and held that the burden of proving a commercial purpose lies on the service provider and must be satisfied on a pre‑ponderance of probabilities. Since the service provider offered no evidence beyond an affidavit, it failed to discharge this burden, and the complaint was deemed maintainable. Consequently, the Court dismissed the appeals, leaving the lower‑court refund order intact.

Issues considered

The complaint's maintainability under Section 2(7) of the Consumer Protection Act, 1986
Whether the service obtained by the complainant was for a commercial purpose
Who bears the burden of proof for establishing a commercial purpose

Legislation cited

Chit Funds Act, 1982
Consumer Protection Act, 1986s. 101, s. 102, s. 11, s. 2(7)
Evidence Act, 1872s. 101, s. 102

Subjects

maintainability of complaintdeficiency of servicecommercial purposedefinition of consumerrefund of amount with interestservice provider burden of proofstandard of proofpreponderance of probabilitiesself‑employment livelihoodtechnical pleasexclusion clauseconsumer‑friendly legislationnegative burden

Judgment

[2024] 6 S.C.R. 214 : 2024 INSC 403

Shriram Chits (India) Private Limited
Earlier Known as Shriram Chits (K) Pvt. Ltd
v.
Raghachand Associates
(Civil Appeal No. 6301 of 2024)
10 May 2024
[Pamidighantam Sri Narasimha and Aravind Kumar,* JJ.]

Issue for Consideration
Matter pertains to the maintainability of the complaint, whether the
service obtained by the complainant was for a commercial purpose.

Headnotes
Consumer Protection Act, 1986 – s. 2(7) – Maintainability of
complaint – Consumer complaint before the district forum
alleging deficiency of service and seeking refund of amount
from the opposite party – Instead of examining whether the
service availed by complainant was for commercial purpose,
the district forum determined whether the complainant fell
within the definition of ‘person’ and holding that there was
‘deficiency in service’, ordered for refund of the claimed
amount with interest – Said order upheld by forums below
without examining the maintainability issue – Maintainability
challenge before this Court, as to whether the service obtained
by complainant was for commercial purpose:
Held: Onus to prove that the service was obtained for a commercial
purpose is on the service provider – Standard of proof has to be
measured against a ‘preponderance of probabilities’ – If and only
if, the service provider discharges its onus of showing that the
service was availed, in fact for a commercial purpose, does the
onus shift back to the complainant to bring its case within the third
part-explanation (a) to s. 2(7) to show that the service was obtained
exclusively for the purpose of earning its livelihood by means of
self-employment – Plea of the opposite party that the complainant
has not pleaded nor proved that the service was obtained for earning
his livelihood through the means of self employment, relates to the
third part of the definition of consumer – Question of inquiring into
the third part would only arise if the service provider succeeds in
crossing the second part by discharging its onus and proving that
* Author
[2024] 6 S.C.R. 215

Shriram Chits (India) Private Limited Earlier Known as
Shriram Chits (K) Pvt. Ltd v. Raghachand Associates

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
– On facts, opposite party merely pleaded in its version that the
service was obtained for commercial purpose – No evidence led to
probabilise its case other than merely restating its claim on affidavit
– Plea without proof and proof without plea is no evidence in the
eyes of law, thus, the matter dismissed. [Paras 21-23]
Consumer Protection Act, 1986 – Technical pleas – Manner in
which consumer forums must decide the pleas – Plea raised
by service providers that the services obtained/goods bought
was for a commercial purpose and, thus, the complaint filed
on behalf of such persons not maintainable:
Held: Such pleas are decided on the manner in which the issues
are framed – Unless the burden of proof is properly cast on the
relevant party, the consumer forum would not be in a position to
arrive at proper decision – Thus, guidance provided on how the
issues must be framed and the manner in which the evidence
must be appreciated. [Para 19]
Consumer Protection Act, 1986 – s. 2(7) – Definition of
consumer – Deconstruction of s. 2(7)(i):
Held: There are three parts to the definition of a consumer – First
part sets out the prerequisites for a person to qualify as a consumer-
there must be purchase of goods, for consideration – Second part is
an ‘exclusion clause’ [‘carve out’] which has the effect of excluding
the person from the definition of a consumer – The carve out applies
if the person has obtained goods for the purpose of ‘resale’ or for a
‘commercial purpose’ – Third part is an exception to the exclusion
clause, it relates to explanation (a) to s. 2(7) which limits the scope
of ‘commercial purpose’, the expression, ‘commercial purpose’
does not include persons who bought goods ‘exclusively for the
purpose of earning his livelihood, by means of self-employment’
– Significance of deconstructing the definition into three parts was
for the purpose of explaining on whom lies the onus to prove each
of the different parts – Onus of proving the first part-person had
bought goods/availed services for a consideration, rests on the
complainant himself – Carve out clause, in the second part, is
invoked by the service providers to exclude the complainants from
availing benefits under the Act – Onus of proving that the person
216 [2024] 6 S.C.R.

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falls within the carve out must necessarily rest on the service
provider and not the complainant – 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 – Act is a consumer-friendly and beneficial legislation intended
to address grievances of consumers – Negative burden cannot
be placed on the complainant to show that the service available
was not for a commercial purpose. [Paras 15, 20]

Case Law Cited
Laxmi Engineering Works [1995] 3 SCR 174 : (1995)
3 SCC 583; Leelavathi Kirtilal Medical Trust v. Unique
Shanti Developers [2019] 14 SCR 563 : (2020) 2 SCC
265; Cheema Engineering Services [1996] Supp. 8
SCR 340 : (1997) 1 SCC 131; Paramount Digital Lab
(2018) 14 SCC 81 – referred to.

List of Acts
Consumer Protection Act, 1986; Evidence Act, 1872.

List of Keywords
Maintainability of complaint; Deficiency of service; Service availed
by complainant for commercial purpose; Definition of ‘person’;
Refund of amount with interest; Service providers; Expression
‘complaint’; Definition of consumer; Onus to prove; Standard
of proof; Preponderance of probabilities’; Earning livelihood by
means of self-employment; Technical pleas; Burden of proof;
Deconstruction of s. 2(7)(i) of the Consumer Protection Act;
Exclusion clause’ [‘carve out’]; ‘resale’ or for ‘commercial purpose’;
‘One who pleads must prove’; Consumer-friendly and beneficial
legislation; Negative burden.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil appeal No. 6301 of 2024
From the Judgment and Order dated 10.03.2021 of the National
Consumers Disputes Redressal Commission, New Delhi in RP No.
831 of 2020
With
Civil Appeal Nos. 6302, 6303, 6304, 6305, 6306, 6307 and 6308 of
2024
[2024] 6 S.C.R. 217

Shriram Chits (India) Private Limited Earlier Known as
Shriram Chits (K) Pvt. Ltd v. Raghachand Associates

Appearances for Parties
Shailesh Madiyal, Sr. Adv., Vaibhav Sabharwal, Ms. Divija Mahajan,
Ms. Sunidhi Hegde, Ms. Sakshi Banga, Ms. Amisha Devi, Mrigank
Prabhakar, Advs. for the Appellant.
Gopal Sankaranarayanan, Sr. Adv., Ms. Anindita Mitra, Ms. Jhanvi
Dubey, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Aravind Kumar, J.
1. Leave granted.
2. The appellant (‘OP’/‘service provider’, used interchangeably) has
challenged the order dated 10.03.2021 of the National Consumer
Disputes Redressal Commission, New Delhi (NCDRC) in these
appeals. The respondent (complainant) had successfully redressed
its consumer grievance, originally, before the Principal Consumer
Disputes Redressal for Bangalore Urban District, at Bangalore
(‘District Forum’). The service provider was unsuccessful in upsetting
the order of the District Forum before the State Consumer Disputes
Redressal Commission, Bangalore (‘State Forum’) as well as the
NCDRC. That is how this matter has come before us.
3. The service provider is a registered Chit Fund company engaged in
Chit business. Admittedly, the complainant had subscribed to certain
chits in the said business. The subscription was made in the chit
group 53005/Ticket No.9 for a chit value of Rs.1,00,000/- payable at
the rate of Rs.2500/- per month for a period of 40 months.
4. It is the case of the complainant that the OP had illegally stopped
the chit business in the year 1996. The complainant requested
the OP to repay the chit amount deposited until stoppage of the
business. The 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.
5. Initially, the complainant sought to redress its grievance relating
to non-refund of the subscription amount, before the authority
218 [2024] 6 S.C.R.

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constituted under the Chit Funds Act 1982.1 Thereafter, the OP filed
WP No.22568/2012 with 9 other connected writ petitions against the
order of the Additional Registrar. Whereas the Complainant also filed
WP No.17045/2014 with 9 other connected writ petitions questioning
the finding with regards to the maintainability under the Chit Funds
Act. On 16.11.2015, the High Court directed the complainant to
approach the Consumer Forum and held that said cases were not
maintainable under the Chit Funds Act.
6. It is against this background that the complaint comes to be filed
before the District Forum alleging that the illegal termination of the
chit fund business and consequent non-refund of the subscription
amount, resulted in deficiency of service. The prayer in the complaint
was for a direction to be issued to the OP to refund Rs.18,750/- along
with future interest at the rate of 18% p.a.
7. In the written version, the OP, apart from contesting the claim on
merits, raised a preliminary objection that the complaint is not
maintainable since the complainant does not qualify the definition
of a ‘consumer’. According to the OP, the service obtained by
the complainant was for a commercial purpose, and by that fact,
the complainant would stand excluded from availing any remedy
under the Consumer Protection Act, 1986. To demonstrate that the
service was obtained for a commercial purpose, the OP relied on
two circumstances: (a) the statement in the complainant that there
was an ‘understanding between complainant and opposite party to
promote chit business’; (b) findings2 of an internal audit conducted
by the OP.

1 The complainant had filed 10 cases before the Assistant Registrar of Co-operative Societies i.e., Dispute
No.1062/2004-05 to 1071/2004-05, for recovery of adjusted amount, whereunder the Assistant Registrar
passed an award and directed the OP to pay the amount to complainant. Against the said order OP
unsuccessfully challenged the orders in appeals before Additional Registrar of Co-operative Societies,
Aliaskar Road, Bangalore, in appeal No.33/CAP/2009-10 to No.42/CAP/2009-10. The Additional
Registrar directed the opposite party to pay the award amount on the ground that said chit groups did not
come under the Chit Fund Act.
2 As per the Internal Audit, the Complainant held 1023 prized chits, and 1043 non-prized chits. The report
also mentions various correspondences between the complainant and OP with regards to the increasing
disparity between the total liability of the fund, and the paid-up value of the non-prized chits. As per the
audit report, the balance liability amounted to Rs. 1.86 crores. It was stated that owing non-payment of
outstanding arrears, the foreman in accordance with Section 28 and Section 29 of the Chit Fund Act is
bound to remove the defaulted non-prized subscriber to keep the chit running, hence the defaulted non-
prized tickets maintained by Complainant were removed, and the paid amounts were adjusted against
arrears in the prized chits.
[2024] 6 S.C.R. 219

Shriram Chits (India) Private Limited Earlier Known as
Shriram Chits (K) Pvt. Ltd v. Raghachand Associates

8. Against the said pleadings available on record, the District Forum
proceeded to frame the following issue:
I. Whether the Complainant has proved the alleged deficiency
in service by the Opposite Party?
II. If so, to what relief the Complainant is entitled?
9. There was no specific issue framed on the preliminary question as
to whether the complainant fell within the definition of consumer as
understood under Section 2 (1) (d) of the Act of 1986. However,
the District Forum did address itself, though incorrectly, to the
objection of the OP that the complaint was not maintainable.
Instead of examining whether the service availed on behalf of the
complainant was for a commercial purpose, the District Forum
determined whether the complainant fell within the definition of
a “person” as defined in Section 2 (1)(m) of the Act. On merits, it
found that there was, in fact, ‘deficiency in service’ and ordered
for refund of the claimed amount with interest of 18% p.a.
10. In appeal, the State Forum has cursorily found that the District Forum
was correct in concluding that there was deficiency in service, on
merits. Nothing has been said, however, as regards the challenge
to the maintainability of the complaint even though a specific ground
was taken in the memorandum of appeal towards that end.
11. The NCDRC has agreed with the State Forum and District Forum
on the merits of the issue and found no reason to interfere with the
‘well appraised detailed order’ of the District Forum. It noted that
there was no necessity to reappreciate the evidence de novo since
the forums below had properly appreciated the issue in dispute.
On the maintainability issue, the NCDRC appears to have mirrored
the approach of the District Forum. Instead of examining whether
the service obtained by the complainant was for a ‘commercial
purpose’, it examined the question of whether the complainant
falls within the definition of ‘person’. Neither was such an objection
raised by the OP in the version originally submitted before the
District Forum nor was such a contention orally taken before the
NCDRC. We fail to understand how the NCDRC failed to grasp
the exact nature of the maintainability challenge. Be that as it may.
12. It is against the above backdrop that we are called upon to determine
the present lis. Instead of remanding the matter back to the Consumer
220 [2024] 6 S.C.R.

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Forum we intend to decide the maintainability challenge here itself.
The question that has eluded three judicial forums has now to be
settled once and for all. That question simply is: Whether the service
obtained by the complainant was for a commercial purpose?
13. Section 2 (7) of the Act defines a consumer to mean:
Section 2 (7) “consumer” means any person who—
(i) 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; or
(ii) hires or avails of any service 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
service 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
service for any commercial purpose.
Explanation.—For the purposes of this clause,—
(a) the expression “commercial purpose” does not
include use by a person of goods bought and used
by him exclusively for the purpose of earning his
livelihood, by means of self-employment;
(b) the expressions “buys any goods” and “hires
or avails any services” includes offline or online
transactions through electronic means or by
teleshopping or direct selling or multi-level marketing;
[2024] 6 S.C.R. 221

Shriram Chits (India) Private Limited Earlier Known as
Shriram Chits (K) Pvt. Ltd v. Raghachand Associates

14. The provision as it stands now (as extracted above) was not how
it appeared when it was grafted in the original Act. The definition of
‘consumer’ has undergone textual amendments in 1993 and in 2002.
For ease of reference, the evolutionary history of the provision from
its origin until the 2019 Act is captured in the table below:
Consumer The Consumer The Consumer Consumer
Protection Act Protection Protection Protection Act
1986 (Amendment) (Amendment) 2019
Act, 1993 Act, 2002
“consumer” “consumer” “consumer” (7) “consumer”
means any means any means any means any person
person who,— person who,— person who,— who—
(i) buys any (i) buys any (i) buys any (i) buys any goods
goods for a goods for a goods for a for a consideration
consideration consideration consideration which has been
which has which has been which has been paid or promised
been paid or paid or promised paid or promised or partly paid and
promised or or partly paid and or partly paid and partly promised, or
partly paid partly promised, partly promised, under any system
and partly or under any or under any of deferred payment
promised, system of system of and includes
or under deferred payment deferred payment any user of such
any system and includes and includes goods other than
of deferred any user of such any user of such the person who
payment and goods other than goods other than buys such goods
includes any the person who the person who for consideration
user of such buys such goods buys such goods paid or promised
goods other for consideration for consideration or partly paid or
than the paid or promised paid or promised partly promised, or
person who or partly paid or or partly paid or under any system of
buys such partly promised, partly promised, deferred payment,
goods for or under any or under any when such use
consideration system of system of is made with the
paid or deferred payment deferred payment approval of such
promised or when such use when such use person, but does
partly paid is made with is made with not include a person
or partly the approval of the approval of who obtains such
promised, such person, such person, goods for resale or
or under but does not but does not for any commercial
any system include a person include a person purpose; or
of deferred who obtains who obtains (ii) hires or avails
payment when such goods for such goods for of any service for
such use is resale or for resale or for a consideration
made with the any commercial any commercial which has been
approval of purpose; or purpose; or paid or promised
such person, (ii) [hires or (ii) hires or or partly paid and
but does not avails of] any avails of any partly promised, or
include a services for a services for a under any system of
person consideration consideration deferred payment
222 [2024] 6 S.C.R.

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who obtains which has been which has been and includes any
such goods paid or promised paid or promised beneficiary of such
for resale or partly paid and or partly paid and service other than
or for any partly promised, partly promised, the person who
commercial or under any or under any hires or avails of
purpose; or system of system of the services for
(ii)hires any deferred payment deferred payment consideration paid
services for a and includes and includes or promised, or
consideration any beneficiary any beneficiary partly paid and
which has of such services of such services partly promised, or
been paid or other than the other than the under any system of
promised or person who person who deferred payment,
partly paid [hires or avails hires or avails when such services
and partly of] the services of the services are availed of with
promised, for consideration for consideration the approval of
or under paid or promised, paid or promised, the first mentioned
any system or partly paid or partly paid person, but does
of deferred and partly and partly not include a
payment and promised, or promised, or person who avails
includes any under any system under any system of such service for
beneficiary of of deferred of deferred any commercial
such services payment, when payment, when purpose.
other than such services are such services Explanation. —For
the person availed of with the are availed the purposes of
who hires the approval of the of with the this clause, —
services for first mentioned approval of the (a) the expression
consideration person. first mentioned “commercial
paid or Explanation.— person but does purpose” does
promised, or For the not include a not include use
partly paid purposes of person who by a person of
and partly sub-clause (i), avails of such goods bought
promised, “commercial services for and used by him
or under purpose” does any commercial exclusively for the
any system not include use purpose. purpose of earning
of deferred by a consumer Explanation.—For his livelihood, by
payment, when of goods bought the purposes means of self-
such services and used by of this clause, employment;
are availed him exclusively “commercial (b) the
of with the for the purpose purpose” does expressions “buys
approval of the of earning his not include use any goods” and
first mentioned livelihood, by by a person of “hires or avails
person means of self- goods bought any services”
employment; and used by him includes offline or
and services online transactions
availed by him through electronic
exclusively for means or by
the purposes teleshopping or
of earning his direct selling
livelihood by or multi-level
means of self- marketing;
employment;
[2024] 6 S.C.R. 223

Shriram Chits (India) Private Limited Earlier Known as
Shriram Chits (K) Pvt. Ltd v. Raghachand Associates

15. Structurally, there are three parts to the definition of a consumer.
We can deconstruct Section 2(7)(i) as a matter of illustration.3
The first part sets out the jurisdictional prerequisites for a person
to qualify as a consumer – there must be purchase of goods, for
consideration4 . The second part is an ‘exclusion clause’ [‘carve
out’] which has the effect of excluding the person from the
definition of a consumer. The carve out applies if the person has
obtained goods for the purpose of ‘resale’ or for a ‘commercial
purpose’. The third part is an exception to the exclusion clause – it
relates to Explanation (a) to Section 2(7) which limits the scope
of ‘commercial purpose’. According to the said explanation, the
expression, ‘commercial purpose’ does not include persons who
bought goods ‘exclusively for the purpose of earning his livelihood,
by means of self-employment’. The significance of this structural
break down will be discussed shortly.
16. The carve out existed as part of the original enactment. However,
the Explanation to Section 2(7) was inserted by amendment in 1993.
17. Judicial experience has shown us that the service providers most
often than not take up a plea in their written version that the service
obtained/goods bought was for a commercial purpose. For, if they
succeed in their plea, the complainant is excluded from availing any
benefit under the Act. According to Section 11, the District Forum
has jurisdiction to entertain complaints ‘where the value of the goods
or services and the compensation, if any, claimed does not exceed
rupees twenty lakhs’. The expression ‘complaint’ is defined in Section
2(1)(7)(c) to mean any allegation made in writing by a complainant
relating to certain enumerated subjects. A complainant is defined
2(1)(b) to mean a consumer, among other entities. Therefore, to
file a complaint, one must be a complainant and for one to be a
complainant, he must be a consumer. If a person fails to come
within the definition of a consumer, he cannot be a complainant5
and therefore, such person cannot file a complaint under the Act.

3 The logic can be identically extended to Section 2(7)(ii)
4 The consideration may have been paid or partly paid or agreed to be paid in future.
5 Complainant is defined under Section 2 (1) (b) of the Act. A complainant means – (i) a consumer; or (ii)
any voluntary consumer association registered under the Companies Act,1956 or under any other law for
the time being in force; or (iii) the Central Government or any State Government, who or which makes a
complaint.
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18. In the facts of the instant case, 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. Sri
Shailesh Madiyal, learned Senior Advocate for the OP has argued
vehemently that the complainant has not pleaded let alone prove
that the services availed by it was for securing the livelihood of
the complainant by means of self-employment. According to Sri
Shailesh Madiyal, the onus to prove that services were availed
for earning livelihood rests on the complainant. In support of his
submission, he has relied on Laxmi Engineering Works – (1995)
3 SCC 583; Leelavathi Kirtilal Medical Trust v. Unique Shanti
Developers – (2020) 2 SCC 265; Cheema Engineering Services
(1997) 1 SCC 131 and; Paramount Digital Lab (2018) 14 SCC 81.
19. Before we deal with the contention of Sri Shailesh Madiyal, it
would be necessary to set out the manner in which consumer
forums must decide technical pleas raised by service providers
to the effect that the services obtained/goods bought was for a
commercial purpose and, therefore, the complaint filed on behalf
of such persons are not maintainable. The crucial step in deciding
such pleas would turn on the manner in which the issues are
framed. Unless the burden of proof is properly cast on the relevant
party, the consumer forum would not be in a position to arrive at
proper decision. Therefore, we proceed to provide some guidance
on how the issues must be framed and the manner in which the
evidence must be appreciated.
20. As we have shown above, the definition of consumer has three
parts. The significance of deconstructing the definition 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
[2024] 6 S.C.R. 225

Shriram Chits (India) Private Limited Earlier Known as
Shriram Chits (K) Pvt. Ltd v. Raghachand Associates

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. Further, it cannot be forgotten that the Consumer Protection Act
is a consumer-friendly and beneficial legislation intended to address
grievances of consumers.6 Moreover, a negative burden cannot be
placed on the complainant to show that the service available was
not for a commercial purpose.
21. 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 (supra). 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.
22. If and only if, the service provider discharges its onus of showing
that the service was availed, in fact for a commercial purpose, does
the onus shift back to the complainant to bring its case within the
third part, i.e. the Explanation (a) to Section 2(7) – to show that
the service was obtained exclusively for the purpose of earning its
livelihood by means of self-employment.
23. In this background, we must consider the plea of Sri Shailesh Madiyal
that the complainant has not pleaded nor proved that the service
was obtained for earning his livelihood through the means of self-
employment. His argument relates to the third part of the definition
of consumer. 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

6 National Insurance Co. Ltd. v. Harsolia Motors and Ors. (2023) 8 SCC 362.
226 [2024] 6 S.C.R.

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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.
24. We do not wish to address ourselves to the merits of the issue since
three Forums have concurred in their finding that there was proved
deficiency of service.
25. Accordingly, we dismiss the appeals.

Headnotes prepared by: Nidhi Jain Result of the case:
Appeals dismissed.