Chandigarh

DF-II

CC/207/2023

M/S AGGARWAL DISTRIBUTORS THROUGH ITS PROPRIETOR BIMAL KUMAR GOYAL - Complainant(s)

Versus

MINAVO TELECOM NETWORKS PRIVATE LIMITED - Opp.Party(s)

ANKIT AGGARWAL

01 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	207 of 2023
Date  of  Institution	:	06.04.2023
Date   of   Decision	:	01.11.2023

 

 

 

 

 

M/s Aggarwal Distributors, showroom No.30, Sector 26, Madhya Marg, Chandigarh through its proprietor Mr.Bimal Kumar Goyal s/o Sh.Ram Nivas Goyal, Resident of #1298, Sector 18-C, Chandigarh

 

            …..Complainant

 

Versus

 

1]  Minavo Telecom Networks Private Limited, Corporate office: A-42, First Floor, Sector 63, Noida 201307, Uttar Pradesh through its Chairman.

 

2]  Minavo Telecom Networks Private Limited, Apartment No.729, 7^th Floor, Gaur Green Avenue Abhy Khand-II, Indrapuram, Ghaziabad, Uttar Pradesh 201010

 

3]  Minavo Telecom Networks Private Limited, Office No.56, First Floor, Evershine Mall, Mindspace Near Chancholi Bunder Road, Malad West, Mumbai 400064, Maharashtra  

 

 

    ….. Opposite Parties

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

         MR.B.M.SHARMA,                MEMBER

                               

Present :     Sh.Ankit Aggarwal, Counsel for the complainant along with complainant in person

 

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

        The complainant : M/s Aggarwal Distributors has filed the present complaint pleading that it is having the Office in Showroom No.30, Sector 26, Madhya Marg, Chandigarh.  It is stated that the complainant approached OP No.1 for service of parallel ringing and bulk SMS service and other services  as the complainant deals in Sale & Purchase of Commercial and Domestic Household Products.  It is also stated that the complainant in good  faith and assurance has purchased from the OP the Call Management Solution (Including Calling service, Call recording, RJ recording and IVR Services) and VSMS Services worth Rs.14,160/- and Rs.1,416/- respectively on 22.9.2022 (Ann.C-1).  It is submitted that against the total payment of Rs.15,576/-, the OP provided a virtual number 01206476557 where the customer can call the complainant and complainant can transfer the call to any number as per choice of the complainant but from the initial day of starting of service i.e. 26.09.2022, the complainant was unable to use the virtual number properly so provided by the OPs.     It is pleaded that the complainant intimated the OPs about the faulty service followed by email dated 12.10.2022 whereupon the OP changed the virtual number from 01206476557 to 7290019390 but the complainant again faced the same issue and even the new virtual number so provided by OPs stopped working completely on 10.11.2022 (Ann.C-4).  Ultimately, the complainant vide email dated 11.11.2022 requested the OPs to refund of the amount of Rs.15,576/- as the opposite party is unable to provide the service as per their commitment, which they replied on 14.11.2022 (Ann.C-5) with assurance that they will give the final update by 15.11.2022 but nothing was done. Even a legal notice was also sent to Ops on 2.2.2023 but to no avail. Hence, this complaint has been filed with a prayer to direct the OPs to refund an amount of Rs.15,576/- with interest, pay compensation and litigation cost.

 

2]       We have heard the Ld.Counsel for the complainant on the point of admissibility of the complainant and have gone through the entire record.

3]       Firstly, we have to consider the issue whether the complainant is a ‘consumer’ under The Consumer Protection Act, 2019 or not?

 

4]       In order to find out answer to the above mentioned issue, the following law and facts are required to be discussed:-

 

5]       Section 2(7) of The Consumer Protection Act, 2019 stipulates as under:-

        Section 2 (7) "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 service 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 service 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 service for any commercial purpose.

 

Explanation.—For the purposes of this clause,—

(a)     the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 

(b)     the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

 

5]       The “Explanation” (a) to definition under Section 2(7) of The Consumer Protection Act, 2019 gives benefit of being ‘consumer’ only to the complainant, who “buy goods” but not to the complainant who “avail services” in connection with “commercial purpose”. So under The Consumer Protection Act, 2019, with regard to “commercial purpose” a complainant who ‘buys goods’ exclusively for the purposes of earning his livelihood by means of self-employment is a ‘consumer’; but a complainant who ‘availed services’ exclusively for the purpose of earning his livelihood by means of self-employment is not a ‘consumer’.  Therefore, it is clear that in the present complaint, the complainant is not a ‘consumer’ being ousted by the “Explanation” (a) to definition of ‘consumer’ under Section 2(7) of The Consumer Protection Act, 2019.

 

6]       In the latest decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Consumer Complaint No.886 of 2020 titled as M/s. Freight System (India) Private Limited Vs. Omkar Realtors & Develop Private Limited & Anr., decided on 25.01.2021, it has been held as under:-

8.       Explanation (a) to Section 2 (7), that “the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.”, provides an exception for ‘goods’, not for ‘service’. Even if a simile with ‘goods’ is conjectured, “exclusively for the purpose of earning his livelihood” has to be adjudged rationally and logically with the due understanding and significance of “exclusively” and “livelihood” and “self-employment”. Reasonable and logical interpretation has to be kept limited and confined to reason and logic, not hypothesized towards anyhow allowing anyone in.

 

9.       A plain reading of Section 2(7)(ii) and Section 2(42) of the Act 2019 makes it clear that the Complainant Co., which has purchased commercial space for its office in a commercial complex, is not a ‘consumer’ under the Act 2019.

 

10.     Denial to avail additional remedy in consumer protection fora to a ‘person’ who is not a ‘consumer’ does not take away or affect his right to agitate his case in an appropriate forum / court as per the law. Conversely, the availability of additional remedy in consumer protection fora does not take away the option of a ‘consumer’ to agitate his case in any other appropriate forum / court. As such, if, for a particular purpose, a company does not meet the ingredients of ‘consumer’ under the Act 2019, it will not be left remediless, it can avail of remedies available under other existing laws.

Xxxxxxx

16.     The Complainant Co.’s case, that it is a ‘consumer’, fails on its facts and on the law. It may however also be observed here that anyhow allowing anyone into consumer protection fora has adverse ramifications, including inter alia: [a] evasion of court fee in civil courts; and [b] eroding into the time and resources of consumer protection fora, which could otherwise be better devoted to the ordinary general consumers, who straightaway fall, ex facie, in the definition of ‘consumer’ (without having to write a treatise to enable their anyhow entry into the fora).

 

 

7]       The Ld.Counsel for the complainant relied upon the two judgments of the Hon’ble Supreme Court of India titled as National Insurance Company Ltd. Vs. Harsolia Motors & Ors. (Civil Appeal No.(s).5352-5353 of 2007, decided on 13.04.2023 And Rohit Chaudhary & Anr. Vs. M/s Vipul Ltd. (Civil Appeal No.5858 of 2015), decided on 06.09.2013 wherein the Hon’ble Supreme Court has held that ‘commercial services’ availed exclusively for the purpose of earning livelihood by way of self-employment’ are covered to be tried and adjudicated by the Consumer Commission.

 

8]       It is observed that the above mentioned both the complaints were filed under the relevant provisions of The Consumer Protection Act, 1986 wherein both ‘goods’ and ‘services’ bought and availed respectively exclusively for the purpose of earning his livelihood are covered under Explanation to definition  of ‘Consumer’ provided under Section 2(1)(d) of The Consumer Protection Act, 1986.  But the present complaint in hand and the complaint titled as M/s. Freight System (India) Private Limited Vs. Omkar Realtors & Develop Private Limited & Anr. (CC No.886 of 2020), decided on 25.01.2021, is/was filed under the provisions of The Consumer Protection Act, 2019 wherein ‘commercial services availed by her/him exclusively for the purpose of earning livelihood by way of self-employment’ are excluded from the Explanation (a) to definition of ‘consumer’ under Section 2(7) of The Consumer Protection Act, 2019.  

 

         The explanation to definition under Section 2(1)(d) of The Consumer Protection Act, 1986 is as under:-

 

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.

 

        The explanation (a) to definition of ‘consumer’ under Section 2(7) of The Consumer Protection Act, 2019 is as under:-

Explanation.—For the purposes of this clause,— (a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment”.

 

         The main point of difference between Explanation to the definition of ‘Consumer’ under Section 2(1)(d) of the Consumer Protection Act, 1986 and Section 2(7) of The Consumer Protection Act, 2019 is that Explanation to definition of ‘Consumer’ under Section 2(1)(d) of The Consumer Protection Act, 1986 includes both ‘good bought’ and ‘services availed’ for the purpose of earning livelihood whereas the Explanation (a) to definition of ‘Consumer’ under Section 2(7) of The Consumer Protection Act, 2019 includes ‘commercial goods bought’ for earning his livelihood exclusively by way of self-employment but excludes ‘commercial services availed’ for earning his livelihood exclusively by way of self-employment.  Hence, the above mentioned two judgments of the Hon’ble Supreme Court are not applicable to the present complaint because the present complaint is filed under The Consumer Protection Act, 2019 whereas the Complaint/(Civil Appeal No.(s).5352-5353 of 2007 & Complaint/Civil Appeal No.5858 of 2015, are filed under the Consumer Protection Act, 1986 because  Explanation (a) to Section 2(7) of The Consumer Protection Act, 2019 does not cover ‘commercial services’ availed exclusively for the purpose of for earning livelihood by means of self-employment’ and they are excluded by the Act itself by Explanation (a) to Section 2(7).

         It is opined that if the complaint involving ‘commercial activity’ of ‘services availed’ as in the present complaint, is entertained then it would amounts to evasion of court fee to be paid before the Civil Court and this will also amount to consume the time and energy of Consumer Commission by non-consumers instead of using that time & energy for the benefit of consumers.

 

9]       Taking into consideration the above discussion & findings, the present complaint being not maintainable is hereby returned to the complainant being disposed off. No order as to costs. The complainant shall, be at liberty, to approach an appropriate Authority/Court in the matter and the time spent herein may stand commuted/condoned for the purpose of limitation.

10]      The pending application(s) if any, stands disposed off accordingly.

11]      Office is directed to return the complaint to the complainant against proper receipt and after retaining its copy.

         Certified copy of this order be sent to the complainant, as per rules. After compliance file be consigned to record room.

Announced

01.11.2023                                                                

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

(B.M.SHARMA)

MEMBER