Per Mr.H.K.Bhaise, Hon’ble Member
1) The complainant is a company registered under the Companies Act, 1956 having its office at Wadala, Mumbai-400 031. The company states that it intended to purchase a Honda Civic 1.8 VAT (EURO IV) Colour Polished Metal car for its Manager at Daman. On 23rd July, 2010, it contacted the O.P.No.1 through helpline No.0120 for checking the dealer’s availability in Surat or Vapi for purchasisng of car. The executive of O.P.No.1 suggested M/s.Arya Honda Shaman Car (I) Private Limited, Prabhadevi, Mumbai-400 025, the Dealer/the O.P.No.2. The complainant was in an urgent need of the car, it decided to choose the car from the ready stock available and colour availability with the O.P.No.2. Further the O.P.No.2 informed the benefit of free insurance scheme in case order is made on before 31st July, 2010. The complainant immediately placed order for car on 23rd July, 2010 with condition that the car will be delivered at Daman. The O.P.No.2 vide its email dated 31st July, 2010 informed that the car will be delivered at the complainant’s office at Mumbai instead of Daman. The complainant placed purchase order vide email dated 31st July, 2010 agreed for the same. The complainant made advance payment of Rs.1,44,332/- vide cheque no.425624 dated 26th July, 2010 and has given Receipt No.R107166 dated 26th July, 2010. The complainant states that it with a loan of Rs.12,45,000/- from HDFC Bank Limited and same has confirmed by HDFC Bank to the O.P.No.2 vide email dated 31st July, 2010. The complainant states that on 31st July, 2010 it received an email at 1.34 p.m. from the O.P.No.2 that if the loan amount is not processed and disbursed by the HDFC Bank then they will not be giving free insurance to the complainant even though the purchase order and advance payment of Rs.1,44,332/- is made before 31st July, 2010. The complainant informed the O.P.No.2 about the processing of payment on 31st July, 2010 and that if the O.P.No.2 does not provide free insurance then the complainant would cancel the order. Insisting on cancellation of the purchase order, the O.P.No.2 agreed for free insurance and in the meantime HDFC Bank also disbursed the loan amount on 31st July, 2010 at 4.55 p.m. The O.P.No.2 agreed to give the delivery of the car on 3rd August, 2010 at complainant’s Mumbai address. The O.P. was continuously avoiding the delivery for the reasons best known to them and raised a new issue of octroi duty being paid if the car is delivered in Mumbai with temporary registration. The complainant in order to avoid the octroi payment insisted that the O.P.No.2 can deliver the car in Daman but the O.P.No.2 insisted to take the delivery from O.P.No.2’s dockyard located at Panvel, In spite of the fact that the O.P.No.2 agreed to deliver the car at complainant’s Mumbai office. The O.P.No.2 insisted on the payment of the charges for driver for giving the delivery alongwith the petrol charges for delivery of the car. The complainant was shocked and surprised to hear that car will not be delivered if driver and petrol expenses are not paid by the complainant. The complainant states that due to the O.P.No.2 continuous negligence and ignorance, the complainant has suffered business loss and severe mental agony. The complainant issued a legal notice dated 6th August, 2010, on the O.P.no.2 asking him to deliver the car on time. The complainant states that the Sales Manager of O.P.No.2 Mr.Girish Dayma came to the complainant’s office on 9th August, 2010 and was not still ready to deliver the car even after complainant’s cooperation to incur the driver’s and petrol expenses for the delivery of the car. The O.P.No.2 complied with its commitments in a very unprofessional manner. The O.P.No.2 delivered the car at the complainant factory at Daman on 9th August, 2010 at around 00.30 a.m. at night without prior intimation to the complainant. The complainant was shocked and surprised to receive a call on the next day afternoon from its Senior Manager Mr.Amit about the delivery of the car on 9th August, 2010 at around 00.30 a.m. at the complainant’s office premises at Daman. The complainant’s security guard thought it to be office and acknowledged the receipt of the car. He had no knowledge of the fact that the car is new car. After receiving the information about the delivery of the car, one of the complainant’s personnel from Mumbai office went to take delivery of the car and found that the front wheel of the car is rusted and was in bad condition at the time of the delivery of the car. The complainant vide its advocate’s legal notice dated 14th August, 2010, informed the O.P.No.1 & 2 that it is not possible to get the car registered as the model of the car was not listed with the Registrar of Transport, Daman and therefore lodged a complaint No.81000503 dated 11th August, 2010 on Honda One 2 One 1800113121 as well as the O.P.No.2 on telephone to O.P.No.2’s Team Manager Mr.Sushant about such difficulties faced for getting the car registered in Daman. The complainant has suffered loss in terms of wrong as well as mental agony due to deficiency in service and negligence of the O.P. The complainant prayed for compensation of Rs.1,99,456/- as per the details.
2) In reply, the O.P.No.1 in its preliminary objection and submission state that the car has been purchased in the name of Company M/s.Atco Corporation Limited registered under the provisions of the Companies Act, 1956. In view thereof the present complaint is not maintainable as the vehicle was purchased for commercial purpose. Therefore, purchaser can not seek protection under Sec.2(1)(d) of the Consumer Protection Act, 1986. The complainant does not qualify the definition of ‘complainant’ as well as ‘consumer’ as provided in the Consumer Protection Act, 1986. Hence, complaint is liable to be rejected on this ground itself. The O.P.No.1 says that the complaint does not meet the requisite conditions as envisaged by Sec.2(1)(c), Sec.2(1)(f)(g) or (r) of the Act. Therefore, liable to be dismissed. The O.P.No.1 has denied all the contents of all the paras and every allegations made in the complaint as the O.P.No.1 is neither a necessary nor a proper party. No cause of action has been alleged against the O.P.No.1 and hence the O.P.No.1 asked to dismiss the complaint with exemplary cost.
3) The O.P.No.2 in reply has taken preliminary objection that the Forum has no territorial jurisdiction to decide the complaint as alleged cause of action did not arise within its territorial jurisdiction. Neither the O.P.No.1 resides nor work for gain with the territorial jurisdiction of this Forum. Second preliminary objection is that signatory to the complaint has no locus standi to sign and or file the present complaint. Further, the O.P.No.2 states that complainant is neither ‘complainant’ nor ‘consumer’ as per the provisions of the Act. The car is purchased in the name of the Company for commercial purpose hence no right to seek relief under provisions of Consumer Protection Act, 1986. Moreover, the complaint is not within Sec.2(1)(c) of the Act. The complainant does not disclose any ‘defect’, ‘deficiency’ or ‘unfair trade practice’ on the part of the O.P. In parawise reply to complaint, the O.P.No.2 denies each and every allegations in the complaint. Hence, the O.P.No.2 prays that the complaint of the complainant be dismissed with cost.
4) On hearing both the parties and on going through the record of the case, following points arise for our consideration.
POINTS
Sr. No. | Points | Findings |
1) | Whether the complainant is a ‘consumer’ under the Consumer Protection Act ? | No |
2) | Whether the complainant is entitled for the relief as prayed ? | No |
3) | What order ? | As per final order |
REASONS
5) As to Point No.1 & 2 :- It is admitted fact that car was purchased by the complainant in the name of the Company. It was registered in the name of the Company. Admittedly, the complainant company is doing business i.e. commercial activities. According to the complainant, the car is being used by one of the Manager for his personal use. Even if, this contention is accepted still he is using it in the capacity of Manager of the complainant company. Therefore, his use can not be said to be personal use. For this purpose we would like to rely upon the judgment of Hon’ble National Commission in F.A.No.723 of 2006 in the case of General Motors India Private Limited –Versus- G.S.Fertilisers Private Limited dated 7th February, 2013. In para No.9 of the judgment the Hon’ble National Commission has held as under :
‘We note that in his complaint before the State Commission the Respondent-Complainant had clearly stated that the vehicle was purchased for the use of its Managing Director. We agree with Appellants’ contention that this clearly amounts to its purchase for a ‘commercial purpose’ since the Managing Director of a private limited company would obviously not use this vehicle for self-employment to earn his livelihood but for ‘commercial purposes’ as a perk of his office. Counsel for the Respondent-Complainant has sought to challenge this contention by pointing out that since the present case pertains to 1999 and the amendment referred to was made only in 2002, it was not applicable in the instant case. We are unable to agree with this contention as well because the 2002 Amendment to the Act pertains to Section 2(1)(d)(ii) of the Act relating to hiring or availing of services for a consideration and not to Section 2(1)(d)(i) of the Act which relates to purchase of goods. In fact, purchase of goods has been well settled by the Hon’ble Supreme Court as far back as in 1995 in its judgment in Laxmi Engineering Works –Versus- P.S.G. Industrial Institute (1995 (3) SCC 583)
Our State Commission also in Consumer Complaint No. CC/12/223 in the case of M/s. Ind Synergy Limited –Versus- Tata Motors Limited dated 12th December, 2012 has held that when the vehicle is purchased by the Company, it is for the purpose of providing facility to its Directors’. It amounts to commercial purpose. Therefore, the complainant company is not a ‘consumer’ within the meaning of definition u/s 2(1)(d)(ii) of Consumer Protection Act.
In the instant complaint before us also car was purchased in the name of Company. Therefore, in view of the above said law laid down by the Hon’ble National Commission and the Hon’ble State Commission, complainant company is not a ‘consumer’ under the Consumer Protection Act. Therefore, the complaint is not maintainable. Hence, the following order.
O R D E R
1) Complaint stands dismissed.
2) Parties to bear their own costs.
3) Inform the parties accordingly.
Pronounced
Dated 24th December, 2013
