Order No. 7 Date: 22-06-2015

Sri Debasis Bhattacharya

Today is fixed for passing order in respect of the MA filed by the OP No. 4 agitating maintainability of the instant complaint case.

By such petition, it is stated by the OP No. 4 that the instant complaint is not maintainable for the simple fact that the Complainant is not a ‘consumer’ as per provisions of the Consumer Protection Act, 1986. In this case, the Complainant is a Private Limited Company and the commercial activities carried out by it cannot be for its earning livelihood by means of ‘self-employment’.  A company has to act through somebody and the question of livelihood and self-employment under these circumstances would not and cannot arise.   

Ld. Advocate for the OP No. 4 has submitted that the Complainant is a Private Limited Company and the commercial activities carried out by it cannot be for its earning livelihood by means of self-employment.  A company has to act through somebody and thus, the question of livelihood and self-employment, under these circumstances, would not and cannot arise. The Complainant in its complaint has admitted that the vehicle in question was purchased by the Complainant company for the personal use of its directors.  Such admission ratifies the fact that the vehicle was never purchased for personal use of only one Director, but it was used by all the Directors and thus the question of personal use is negated.  As such, the Complainant cannot be construed as a consumer under the Consumer Protection Act, 1986, and accordingly, the instant case be dismissed being not maintainable.  In support of his contention, the Ld. Advocate has referred to three decisions of the Hon’ble National Commission, viz., one decision reported in I (2015) CPJ 422 (NC), and the others in R.P. No. 3517/2007 and in Appeal No. 723/2006 and also a decision of this Commission in CC/192/2014.

Ld. Advocate for the Complainant has stated that it clarified its position in the petition of complaint that the vehicle was purchased for the personal use of the directors of the Complainant Company.  The vehicle has not been purchased for the purpose of resale or for any other commercial purpose.  So, there is no infirmity in preferring this complaint case before this Commission which is competent enough to adjudicate such dispute.  As such, the petition of the OP No. 4 be rejected. He has referred to two decisions of the Hon’ble National Commission in R.P. No. 3338/2014, and O.P. No. 290/1997.

Once a legal point is raised by any of the concerned parties to a case, it is desirable of the other side to refute such allegation by means of cogent documentary evidence/proof. It is worth mentioning here that notwithstanding the Complainant claimed that the vehicle in question is meant for the personal use of its Directors, no corroborative document to this effect, e.g., Board resolution is placed on record.

Be that as it may, even for the sake of argument if it is presumed that the vehicle in question was indeed purchased to serve the family purpose of its Directors, it does not stand them in good stead.

While enacting legislation, every single word is crafted with utmost care and caution so as to ensure that the Act does not get distracted of its key focus area, e.g., the preamble of the Consumer Protection Act, 1986, which vows to protect the interests of ‘consumers’.  So, while the legislators have kept ‘commercial purpose’ out of the purview of this beneficial legislation while defining ‘consumer’ under section 2(1)(d) of the Act, with the notable exception of ‘self-employment’, there remains no room for any ambiguity that this Act is not an ‘all-cure’ expedient; rather, it is meant to serve a select segment of beneficiaries and we can get a feel of the inherent meaning of ‘self-employment’, if we read between the lines of celebrity judgment of the Hon’ble Supreme Court in the matter of Laxmi Engineering Works vs. P.S.G. Industrial Institute, reported in 1995 SCC (3) 583, where dealing with similar issue, the Hon’ble Court observed as under:-

“….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, he 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 expressions "used by him", and "by means of self-employment" in the explanation. .”

Unlike Proprietorship concern, a Private Limited Company is run through its Board of Directors, having distinct identities vis-à-vis the company.  So, the very ingredient of ‘self-employment’, as illuminated by the Hon’ble Court hereinabove, is missing here.

In this regard, also worth mentioning is the observation of the Hon’ble National Commission, reported in IV (2014) CPJ 525 (NC), wherein the Hon’ble Commission has observed as under:-

“The car in hand was not purchased exclusively for the purposes of earning livelihood by means of self-employment for the Director of the Company.  It is not for the livelihood of the Director or personal use of the Director.  He has to use the car only for commercial purposes and that is why, he purchased it in the name of the company.  There is no resolution for purchase of car.  In case, the companies are allowed to save the Court fees, the very purpose of ordinary consumer or as defined by the Act shall stand defeated.”

So, as it appears, the Complainant has made a futile attempt to make bricks without straw.  It is not a ‘consumer’ under the Consumer Protection Act, 1986.

We, thus, find merit in the Misc. Application, moved by the OP No. 4 and as such, the same is allowed.  Consequent thereof, the instant complaint case stands dismissed, but without any order as to costs.

The Complainant is at liberty to approach the proper Forum/Court to agitate its grievance, as per law.