CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.82/2013
M/S BABA VISHWAKARMA ENGG. COMPANY LTD.
C-201, INDUSTRIAL AREA, BULANDSHAHAR ROAD,
GHAZIABAD, U.P.
THROUGH ITS MANAGING DIRECTOR JUGAL KAMBOJ
…………. COMPLAINANT
VS.
- M/S JAI AUTO(A DIVISION OF J.S.B. AUTO PVT. LTD.)
A-39, MOHAN CO-OPERATIVE INDUSTRIAL ESTATE,
MATHURA ROAD, NEW DELHI,
THROUGH ITS DIRECTOR/MANAGER
- M/S SKODA AUTO INDIA PVT. LTD.,
501, WING A, SIGNATURE TOWER, SOUTH CITY-I,
GURAGAON, HARYANA
………….. RESPONDENTS
Date of Order: 31.05.2016
O R D E R
This order shall dispose of an application moved by OP-2 for rejection of the complaint.
Complainant is a private limited company and the present complaint has been filed through it Managing Director against OP-1, who is the dealer and OP-2, manufacturer of Skoda Superb Elegance car which was purchased by the complainant in July 2007 and the car was found to be defective. Hence by way of this complaint, complainant has prayed for a direction to OP to repair the car and to refund the amount of Rs.1.5 lakhs which was paid by the complainant alongwith 18% interest and other reliefs.
OP-2 moved a application for rejection of the complaint on the ground that complainant is not a consumer.
The application is replied by complainant wherein it is stated that the car has been purchased by the complainant for personal use of Managing Director and the same is not for any commercial purpose hence the complaint is very much maintainable.
We have heard Ld. counsel for the parties and carefully perused the record.
Reference is placed on case of M/s Harsolia Motors Vs M/s National Insurance Co. Ltd. First Appeal No.159 of 2004 dated 03.12.2004 where it was held that if a person takes insurance policy to cover envisaged risk, he does not take the policy for commercial purpose. The policy is only for indemnification of the actual loss. It is not intended to generate profit. This has no application to the facts of the present case. It is in respect of insurance cover. Insurance company is not a party in this case.
Ld. Counsel for complainant has referred to case of M/s Control & Switchgear Co. Ltd. Vs M/s Daimlerchrysler India Pvt. Ltd. decided by the Hon’ble National Commission on 17.07.2007 wherein the car was purchased by a private limited company and it was contended by that the complainant company is indulging in commercial activities hence complainant is not a consumer. It was held by the Hon’ble National Commission that the car was purchased for use of the Directors and are not be to be used for any activities directly connected with the commercial purpose of earning profits. The cars are not used for hire but for personal use of directors hence it cannot be said that the complainant company has purchased the car for commercial purposes.
Ld. Counsel for OP has referred to various judgments of the Hon’ble National Commission where in similar circumstances, Hon’ble National Commission has been held that even if the car has been purchased for personal use of Managing Director even then it amounts to commercial use as car is purchased by the company and the company is indulging in commercial activities. He has referred to the recent judgment dated 16.04.2013 of the Hon’ble National Commission in case of Belmaks Solutions Pvt. Ltd. Vs Skoda Auto India Pvt. Ltd. Vs Skoda Auto India Pvt. Ltd. etc.
It is also useful to refer to case of General Motors India Pvt. Ltd. – Appellant Vs G.S. Fertilizers (P) Ltd. & Anr. - DOD - 07-02-2013 - where in para -9, Hon’ble National Commission held as under:-
“Para-9 - We have heard learned Counsel for both parties and have gone through the evidence on record. 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 relating inter alia to 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 V. P.S.G. Industrial Institute, II(1995) CPJ 1(SC)=1995(3)SCC583, wherein the Hon’ble Apex Court has ruled as follows:-
….. On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit-making activity will not be ‘consumers’ entitled to protection under the Act. It seems to us clear that the intention of Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit-making activity engaged on a large scale. It would thus follow that cases of purchase of goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit will all fall outside the scope of the definition. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large scale manufacturing or processing activity carried on for profit. In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the large-scale activity carried on for earning profit.”
In view of the above, complainant is not a ‘consumer’.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
