PER JUSTICE J.M. MALIK

1.       Counsel for the complainant present.  The complainant M/s Sindya Infrastructure Development Co. Pvt. Ltd.  has filed this complaint against M/s BMW India-manufacturer-OP-1 and M/s Kun Motor Company Private Limited –OP-2-the Dealer because there was deficiency in purchase of the car.  The following prayer was made:-

“Compensation Claimed

(i)  In view of the facts as stated above opposite parties has clearly guilty of gross deficiency of service contrary.  The Complainant has therefore come forward with the present complaint for a direction directing the Opposite Parties to replace the Car with a new BMW 750 Li or in the alternative pay Rs. 1,54,42,711/-, being the On Road price of the car and also pay a compensation of Rs. 1,00,00,000/- for the deficient service rendered by the Opposite Parties and for the agony undergone by the Complainant and for the pecuniary loss sustained by the Complainant and the cost of the Complaint.  The Complainant had purchased the car for their own use and not for any commercial purpose.  On account of the mental harassment and agony or any such relief as this Hon’ble Commission may deem fit.

Prayer

     In these circumstances, it is most respectfully submitted that this Hon’ble Court may be pleased to:

1. to replace the Car with a new BMW 750 Li or in the alternative pay Rs. 1,54,42,711/-, being the On Road price of the car;
2. pay a compensation of Rs. 1,00,00,000/- for the deficient service rendered by the Opposite Parties and for the agony undergone by the Complainant and for the pecuniary loss sustained by the Complainant;
3. pay the cost of the Complaint and

Pass such further or other order as this Honourable Commission may deem fit and proper in the circumstances of the case and thus render justice.”

2.       Counsel for the complainant admitted that this vehicle was purchased by the Company for the use of its Managing Director.

3.       This argument is bereft of force.  Last time, the attention of the counsel for the complainant was invited towards the previous order passed by this Bench in the case of Pharos Solutions Pvt. Ltd. Vs. Tata Motors Ltd. & Ors., in Consumer Complaint No. 306 of 2014, but he still insists that his matter should be decided on merits.  The case of the complainant stands demolished by the following authorities.

4.       In M/s Purusharth Associates Pvt. Ltd. Vs. M/s Uppal Housing Ltd. Plaza & Anr., this Commission in Consumer Complaint No.112 of 2012,  on 05.07.2012,  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.

5.       The above-mentioned case (M/s. Purusharth Associates Pvt. Ltd.) was dismissed in limine. Aggrieved by that order the complainant approached  the  Apex Court. The Hon’ble Supreme Court in  Civil Appeal Nos.8990-91/ 2012, vide its order dated 07.01.2013,  dismissed the same.

6.       In Subhash Motilal Shah (HUF) & Ors. Vs. Malegaon Merchants

Co-op. Bank Ltd.,  the  petitioner,  ‘HUF’, had  opened a current account to be used for commercial  purpose.  It  was held that it  was  not a ‘consumer’, by this Commission vide its order  dated 12.02.2013 and the SLP filed against  the  said order, was dismissed  by  the  Hon’ble  Apex Court in Civil  Appeal  No. 39200/2013,  dated 13.01.2014

7.       Now we advert to cases relating to  ‘machines’ which were meant for commercial  purposes.  (1) Civil Appeal  No. 30699 of  2013 (Manager Mapsko Builders Pvt. Ltd. & Ors. Vs. Sunil Dahiya)  filed against  the  order of this Commission dated  05.08.2013  (RP No.3479 of 2011),  the Hon’ble Apex Court, vide its order dated 07.10.2013, held that  the complainant  is not a ‘consumer’.  (2) Civil Appeal No.2229 of 2014 (M/s. Amla Processing Pvt. Ltd. Vs. M/s. Best Engineering Technologies), filed against the   order of this Commission dated 15.04.2013 (FA No.619/2012), the Hon’ble Apex Court, vide its order dated 20.01.2014, held that the complainant is not a ‘consumer’.  (3) Civil Appeal  No.19843 of 2009, (Cadila Healthcare Ltd. Vs. Anuradha Enterprises) filed  against  the  order of  this  Commission  dated  17.03.2009 (RP No.1999 of 2005), the Hon’ble Apex, once  again, held  that  the complainant  is not a ‘consumer’.

8.       In Kalpavruksha Charitable Trust Vs. Toshniwal Brothers (Bombay) Pvt. Ltd., AIR 1999 SC 3356,  while placing reliance on Laxmi Engginering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583,  the Hon’ble Apex Court was pleased to hold, as under :-

“6. It is, therefore, clear that in spite of the commercial activity, whether  a person would fall within the definition of “consumer” or not would be a question of fact in every case.  The National Commission had already  held on the basis of the evidence on record that the appellant  was  not  a “consumer”  as the machinery was installed for “commercial purpose”. We have been again referred to various documents, including the “project document”,  submitted by the appellant itself to the Bank  for  a loan to enable it to purchase the machinery in question, but we could not persuade ourselves to take a different view.

9.  In the instant case, what is to be considered is whether  the appellant  was  a “consumer”,   within

the meaning of  the Consumer Protection Act, 1986, and  whether  the  goods  in question were obtained by  him for  “resale” or  for any “commercial purpose”.  It is the case of the appellant  that  every  patient who is referred to the Diagnostic Centre of the appellant and who takes advantage of the CT Scan, etc., has to pay for it and the service rendered by the appellant is not free.  It is also the case of the appellant that only  ten percent of the patients are provided free service. That being so, the “goods” (“machinery”), which were obtained by the appellant, were being used for “commercial purpose”.

[Emphasis Supplied]

9.       Lastly, in Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. IV 2010 CPJ  299 NC, there was delay in possession of show room.  The complainant was a private limited company.  The complainant was nominated for allotment of showroom.  Possession was not given.  Sale deed was not executed.  Deficiency of service alleged.  This Commission held that even if private limited company was treated as ‘person’ purchase of space could not be for earning its livelihood.  Purchase of space was for Commercial purpose.

10.     The car in hand was not purchased exclusively for the purposes of earning livelihood by means of self-employment for the Mr. R.S. Chandan, who is the Managing Director of the Company.  He has to use the car only for commercial purposes. Counsel for the complainant has failed to produce resolution for purchase of  car.  In   case  the companies  are  allowed to save  the  court  fees, the  very purpose of  ordinary consumer or as defined by the Act  shall  stand  defeated.

11.     Consequently, we find that the present case is not maintainable and  the  same  is, therefore, dismissed in limine.  However, there lies no rub for  the complainant  to  seek  remedy before any other appropriate forum  or  civil court,  as per law.  Further, he may seek help from the celebrated authority reported in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583.   No costs.