DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.35/2014

Maharaja Agrasen Institute of Technology

Plot No.-I, Sector-22,

Rohini, Delhi                                                                 ….Complainant

Versus

The Chairman & Managing Director

M/s HI Lift Engineering Co.

D-183, Lajpat Nagar -1,

New Delhi                                                                    ….Opposite Party

                                                  Date of Institution        : 31.01.14        Date of Order     : 23.10.18   

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

Brief facts of the case as pleaded by the complainant are:-

1. The complainant, Maharaja Agrasen Institute of Technology signed an agreement with M/s HI Lift Engineering Company hereinafter referred to as OP for modernization of existing EISA make passenger automatic elevator installed in the library at the complainant’s campus in Rohini on 13.12.11. It is averred that as per the agreement the OP was bound to provide maintenance service as well as modernization of the aforesaid lift on consideration. Photocopy of the agreement is annexed as Annexure-1. It is further stated by the complainant that a total amount of Rs.2,25,000/- was transferred to OP by 24.01.12. The complainant further states that after having received 75% amount of consideration OP was bound to maintain and modernize the aforesaid lift but the OP had neither responded nor sent any engineer/executive of its company to modernize the aforesaid lift after having received the payment of Rs.2,25,000/-. Hence, the present complaint to direct the OP to refund the amount of Rs.2,25,000/- alongwith 24% interest per annum from the date of said agreement, to pay Rs.1,75,000/- as compensation towards physical and mental agony and to pay Rs.5,000/- as litigation expenses to the complainant

2. Notice had been issued to the OP. OP in person appeared for few dates thereafter stopped appearing. Hence OP was proceeded exparte on 04.05.14. He chose not to file written statement but watched the proceedings & finally advanced oral arguments.
3. Exparte evidence and exparte written arguments have been filed by the complainant.
4. We have heard arguments on behalf of the parties and have also gone through the file very carefully.
5. Counsel for OP orally argued his case and his main contention was that the present case was not maintainable as the services rendered were commercial in nature and the complainant is not a consumer under Section 2(1)(d) of Consumer Protection Act. Therefore this forum does not have jurisdiction to entertain the present complaint.
6. The main question that arises for our consideration is whether the transaction detailed above would fall within the meaning of term “commercial purpose” under section 2 (1) (d) of the Consumer Protection Act. Definition reads as under:-

“ consumer” means any person who—

1. 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
2. hires 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 purpose.”

7. On perusal of the documents placed on the record it is observed that an agreement was signed between the complainant and the OP for modernization of existing EISA make passenger automatic elevator installed in the library at the complainant’s campus.
8. The term ‘commercial purpose’ has been very extensively defined in Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583. As observed by the Hon’ble Supreme Court in this judgment it is not the value of goods but the purpose for which goods were brought or put to use which is relevant to decide whether the goods were obtained for commercial purpose or not. The same would be the position, where services are hired or availed by the complainant. The relevant portion  of the judgment  (supra) reads as under:-

“ If a car or other goods are purchased or the services are hired or availed by a  company for the personal use of its directors/employees, the purpose behind such acquisition is not to earn profits or to advance the business activities of the company. The purpose is to make certain facilities and amenities available to the directors and employees of the company as a part of the incentive offered to them by the company, as a reward or remuneration of the work which they are expected to perform for the company. It is not as if a company cannot run its business without providing such facilities and amenities to its directors and employees. It is not necessary for the business of the company, to provide such facilities and amenities to its directors and employees. Providing such facilities and amenities only motivates them to perform their work in an efficient and congenial environment, besides serving as an incentive aimed at eliciting better performance. The company does not earn profit merely by making a car or certain other goods or services available to its directors and employees. Therefore, it would be difficult to say that such goods are purchased or the services are hired or availed by the company for a commercial purpose.”

9. Inference drawn from the above judgment is that the agreement between the parties was for maintenance and modernization of the lift installed in the library of the educational institute and providing a lift in the library is not central to profit making of the institute. It is not the case of the complainant that it cannot run its business without providing such facilities and amenities to its students and staff. Installing, maintaining or modernizing the lift in the institute does not in any way directly lead to making profit by the Institute. Hence, it is held that maintenance and modernization of the lift of the educational institute does not lead to the conclusion that usages of such goods or services was for commercial purpose.
10. Therefore, not-providing service for maintenance and modernization of an existing automatic elevator after receiving 75% of the consideration amounts to deficiency in service on the part of the OP. Hence, the OP is directed to refund the amount of Rs.2,25,000/- with interest @ 7% per annum from the date of payment made by the complainant of the said amount till realization within two months from the date of receiving the copy of this order. Additionally the OP is directed to pay Rs.10,000/- as compensation and litigation expenses to the complainant.

Failing which OP shall become liable to pay the said amount of Rs.2,25,000/- alongwith interest @ 9% per annum from the date of payment of the said amount till realization.

                   Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 23.10.18.