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.27/2013
M/S S.R. ASHOK AND ASSOCIATES PVT. LTD.,
HAVING ITS OFFICE AT:-
C-9, PLOT NO.1, LOCAL SHOPPING COMPLEX,
VASANT KUNJ,
NEW DELHI-110070
THROUGH ITS MANAGER,
MR. KAMAL KUMAR CHOPRA
…………. COMPLAINANT
Vs.
M/S KENT R.O. SYSTEMS LTD.,
THROUGH ITS DIRECTOR/APPROPRIATE OFFICER,
D-194, BASEMENT, OKHLA INDUSTRIAL AREA-1,
NEW DELHI
…………..RESPONDENT
Date of Order: 23.11.2015
O R D E R
A.S. Yadav – President
Complainant a private limited company, purchased a Kent RO water purifier system for a sum of Rs.25000/- from OP and the same was installed at the office OP at Local Shopping Complex, Vasant Kunj on 18.10.2011. However, that RO system did not work properly and for that complainant has made numerous complaints and last complaint was made on 20.6.2010. Ultimately the complainant was forced to purchase and install another water purifier at the aforesaid premises for a sum of Rs.34,000/-.
Complainant has prayed that OP be directed to pay Rs.31,000/- towards cost and annual maintenance of RO system with interest @ 24% p.a., Rs.50,000/- for compensation, Rs.50,000/- for litigation cost and Rs.34,000/- for purchasing a water purifier of ZERO-B.
OP in the reply denied the allegations regarding the defect in the RO system. It is stated that the present complaint is bared by time as warranty period has been expired on 18.10.2010. The date of purchase of the machine is 18.10.11 and after expiry of warranty period no free service is available to consumer. As per the conditions of warranty sediment filter, carbon block and membrane(RO/UF) are consumable and are not covered under warranty. However, if the filters get chocked within 6 months or the membrane within one year, they shall be cleaned/repaired/replaced free of cost during this period.
It is further stated that complainant is a company and as per para no.5 of the complaint the complainant himself admitted that “Lots of people work here” it means very high consumption of water is there in this company by its employee and visitors and in this situation, complainant should have bought an Industrial RO plant and not a water purifier. Due to high consumption of water in the complainant company, the system had frequent failures.
We have heard Ld. Counsel for parties and carefully perused the record.
The only issue in the matter is whether complainant is a ‘consumer’. Ld. Counsel for complainant has referred to case of M/s Kent RO System Vs Mr. Sanjeev Wadhere – Appeal No.194/03 – date of decision 27.08.2007 of the Hon’ble State Commission.
That case was not pertaining to a private limited company and the issue in that case was not whether the complainant was a consumer or not.
Ld. Counsel for complainant has also referred to case of Sant Agro Industries Vs Sardar Bhupendra Singh Malhotra & Ors: 1986–2006 - 11153(NS).
Again the facts of that case are entirely different. In that case the machine was purchased by the complaint for earning the livelihood and that was not the case of private limited company.
Ld. Counsel for the complainant has referred to case of Life Line Medicare Services Vs Dr. Naresh Hospital. 1986-2006 CONSUMER 11394 (NS) - In that case machine was purchased prior to the amendment of definition of ‘consumer’ under Consumer Protection Act.
Ld. Counsel for complainant also referred to the case of Karnataka Power Transmission Corpn. & Anr. Vs Ashok Iron Works Pvt. Ltd. – Civil Appeal No.1879 of 2003 decided by the Hon’ble State Commission on 09.02.2009.
Again the facts of that case are not applicable to the facts of the present case.
The main question for consideration is whether the complainant is a consumer. Section 2(1) (d) of Consumer Protection Act 1986 which defines ‘consumer’ as under:-
“(d) ‘consumer’, means any person who –
- 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 party 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 resale or for approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or
- 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 service for consideration paid or promised, or partly paid or party promised, or under any system of deferred payment, when such services are availed of with the approval of first mentioned person, but does not include a person who avails of such services for any commercial purpose.
[Explanation – For the purposes of this clause, ‘commercial purpose’ does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.]”
It is useful to refer to case of Pharos Solutions Pvt. Ltd. Vs Tata Motors Ltd. & Ors., IV(2014) CPJ 525. In that case, the company purchased a car for use of its Principal Director, it was held that the car has been purchased for commercial purposes by a company and does not come within the meaning of consumer. It is useful to refer to para(s) 12, 13 and 14 of aforesaid judgment which are reproduced as under:-
- In Satish Kumar Gajanand Gupta V. M/s. Srushti Sangam Enterprises (India) Ltd. & Anr., III (2012) CPJ 264 (NC) – Consumer Complaint No.296 of 2011, decided by this Commission, on 3.7.2012, the Hon’ble Apex Court, in Civil Appeal No.6229 of 2012, decided on 14.9.2012, upheld the order of this Commission that the petitioner was not a ‘consumer’ when he intended to purchase some permanent accommodation at Mumbai, for his stay during his business visits, from Delhi, to save on the expenditure incurred for hotels. For that purpose he had booked two flats.
- In M/s Purusharth Associates Pvt. Ltd. V. M/s. Uppal Housing Ltd. Plaza & Anr., III (2012) CPJ 500 (NC), this Commission in Consumer Complaint No.112 of 2012, on 5.7.2012, observed in paras 11 and 12 of its judgment, as under:-
11. Learned Counsel for the complainant argued that these flats will be used for the officers of the Company. Learned Counsel for the complainant could not deny that those officers would transact the commercial activity. A bare look on this Resolution clearly goes to show that these flats would be meant for commercial purposes.
12. The complaint being not maintainable, is therefore, dismissed. Nothing will debar the complainant to seek remedy before the appropriate Forum, as per law.
- The above-mentioned case (M/s. Purusharth Associates Pvt. Ltd.) was dismissed in limine. Aggrieved by that order the complaint approached the Apex Court. The Hon’ble Supreme Court in Civil Appeal Nos. 8990-91 /2012, vide its order dated 7.1.2013, dismissed the same.
It is also useful to refer to case of General Motors India Pvt. Ltd. – Appellant Vs G.S. Fertilizers (P) Ltd. & Anr. – Respondents - wherein 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 case - Monstera Estate Pvt. Ltd. Vs Ardee Infrastructure Pvt. Ltd. IV(2010) CPJ 209(NC), it was held that complainant was a private Ltd. company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed not executed. Deficiency in service alleged. It was held that even if private Ltd. company was treated as a ‘person’, purchase of space could not be for earning its livelihood. Purchase of space was for commercial purpose.
The complaint is not maintainable hence the same is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
