JUSTICE J.M.MALIK

1.      M/s. Shivom  Projects  Pvt. Ltd., a business  organisation, settled at Delhi Cantt.,  the  complainant,  has filed  this  complaint,  through its Director, Sh. Vikas Singhal, against  Toyota Kirloskar Motor Pvt. Ltd., OP1, M/s. Galaxy Toyota, OP2, the authorized dealer of OP1, and  HDFC  Bank Ltd., OP3.  The  complaint  itself  runs into 40 pages, in this summary trial case.

2.      The complainant  is in the business of construction, mainly for the Indian armed forces and is a registered entity with Military Engineers  Services  (MES),  Ministry of Defence, Government of India, for executing  construction of projects for the Ministry of Defence, on behalf of  MES.  The  complainant  purchased a car, Make Toyota Model Corolla / Corolla Altis Diesel D-4D J Saloon, on 28.02.2013, manufactured by OP1, through its  above said dealer, OP2, for a sum of  ₹ 14,45,217/-.   The  purchase of the said vehicle  was  financed  by  the  above  said  OP3, by way of an auto-loan  of    ₹ 11,00,000/-.  The vehicle was insured until 27.02.2015.

3.      On 05.04.2014,  the said vehicle met with a near fatal accident  at Gurgaon and  overturned  which could have easily proved fatal to the occupants of the vehicle.  The complainant, however, extricating himself  from  the  severely  damaged vehicle, first called OP2 and with no response forthcoming from it, called his brother and got the helpline number of OP1.   The  complainant  informed  the  staff  of  the  helpline  number, but they simply refused to extend any help to the  accident  site  and  he tried  to  drive the damaged vehicle, himself.  The complainant  himself had to get the damaged vehicle towed  to  the  workshop of OP2, which was done at around 0130-0200 hours in the morning of 06.04.2014.   The additional safety feature in the form of air bags in the vehicle,  shall  not  deploy  endangering the lives of the occupants of the vehicle.

4.      Mr. G.K. Bhatia,  AGM  of  OP2  met  the complainant and put the entire onus  on  the complainant.  The complainant  received  injuries and is still not recovered from the said accident.

5.      The complainant  was convinced  that  the OPs 1 & 2  had  sold  a sub-standard  vehicle to him and OPs 1 & 2 chose to sell the same to  him  with  serious  defects  relating to  safety measures like air bags.  The complainant  issued  legal  notice  to OPs on 17.04.2014.  It was also pointed  out  that OP1 was settling the matter for a whopping 1.2 Billion USD, equal  to Indian  ₹ 7,500 crores.  It is alleged that the complainant has been swindled by the OP.  On 15.06.2014, the car was sent back  to  the complainant, without repairs.  Ultimately, the present  complaint  was  filed  with the following prayers :-

“a)  direct/ order the Opposite parties to pay a sum of Rs.7,48,941/-  as refund  of the cost of the vehicle “Toyota Make Model Corolla / Corolla Altis Diesel  D-4D J Saloon” to the complainant that the complainant  has paid till date to the financier of the vehicle, i.e., HDFC Bank and opposite party NO.2 along with pendent lite and future interest at the rate of 18% p.a., and also penal interest that may be determined  by  this  Hon’ble Commission as just and proper, compounded quarterly from 28.02.2013 and  pass a decree of recovery of the same in favour of the complainant  along with interest, till the date of the realisation of the amount;

b) direct  / order the opposite parties to also pay the entire amount of Equated Monthly Installments (EMI) of the vehicle to the complainant that the complainant is being made to pay to the Financier of the vehicle i.e. 43 installments @ Rs.23,441/- along with interest @ 18% p.a., until the date of its realisation;

c) direct  / order the opposite parties to also pay to the complainant a sum of Rs. 25 crores  and any other consequential damages caused  by the deliberate, malicious and mala fide actions of the opposite parties to the complainant  and pass a decree of recovery of the same in favour of the complainant of the amount as claimed by the complainant for causing enormous hardships, harassment, mental agony, shock, injury and trauma, along with interest @ 18% p.a., until the date of its realisation calculated from 17.04.2014;

d) award the entire cost of the present litigation in favour of the complainant and against the opposite parties.

e) grant such other further relief(s) in favour of the complainant and against the opposite parties as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the present case, in the interest of justice”.

6.      We have  heard  the  counsel  for  the  complainant and gave him time to show to us that the complainant is a ‘consumer’.   The complainant  has  placed  reliance  on  Laxmi Engginering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583.  He  contended that as per this authority, he is a ‘consumer’.  Our attention was also invited towards another authority of the Hon’ble Apex Court in Karnataka Power Transmission Corporation & Anr. Vs. Ashok Iron Works Pvt. Ltd., Civil Appeal Nos. 1879 of 2003 & 7784 of 2012,  decided  on 09.02.2009,  wherein  it  was held  that  a company  is  a  person and  therefore, it  is a ‘consumer’.  The General Clauses Act, 1989,  in Section 3(42)  defines  ‘person’ as  “person  shall  include any company or association  or  body  of  individuals  whether  incorporated  or not”.

7.      Both these authorities are not applicable  to the present   prevalent  legal  position.  There  was amendment in the Act in the year 2003, which  has  brought  about  fundamental  changes in the definition  of  “consumer”.    The cause of  action  in both the said cases has  arisen prior to the amendment  Act, 2003.

8.      Moreover, in Karnataka Power Transmission Corporation &  Anr. (supra),  it was held here as under :-

           “Section 2(1) (d) defines “consumer” as follows :-

 ‘Consumer’  means any person, who :-

(i)     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

(ii) “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 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”.

               [EMPHASIS SUPPLIED]

9.      In  both  the  authorities,  explanation  appended  to   Section 2(1) (d)  was  not discussed at all.  The said provision of law runs as follows :-

“(ii) 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 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 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;]

               [EMPHASIS SUPPLIED].

10.    In Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. – IV (2010) CPJ 299 (NC), this Commission held, as under :-

“Housing – Purchase of space for commercial purpose - There was delay in possession.  Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given.  Sale deed was not executed. Deficiency in service was alleged. It was 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”.

11.    In  Shika Birla Vs. DLF Retailers Developers Ltd., Consumer  Complaint No. 183 of 2012,  the Hon’ble Apex  Court, in Civil Appeal No.5458 of 2013, dated 08.07.2013,  upheld  the order  of this Commission, while  observing  that the complainant does not fall within the definition of ‘consumer’, under Section 2(1)(d).

12.    In Satish Kumar  Gajanand  Gupta Vs. M/s.  Srushti  Sangam  Enterprises (India) Ltd., & Anr., Consumer Complaint No.296 of 2011, decided by this Commission,  on  03.07.2012,  the Hon’ble  Apex Court, in  Civil  Appeal  No. 6229 of 2012,   decided on 14.09.2012, 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.

13.    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.

 14.    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.

15.    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.

 16.    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’.

 17.    This  Bench in Mohan Branwal (an individual) Vs. Pawan Kumar, Sales  Manager,  vide  order dated 30.08.2013, in Revision Petition No.2917 of 2013,  where the complainant purchased  one  plant  with  machine  for  soya  bin Bari making unit at chance was held to be for ‘commercial  purpose’.  The plea  of  defect  or  deficiency  in  service  during the warranty  period  was  not  accepted.  The Hon’ble Apex Court in Special  Leave  to  Appeal (Civil) No.37191 of 2013,  filed  against  the said Revision Petition, upheld the view of this Commission,  vide order dated 17.12.2013.

 18.    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]

19.    In  a  recent  case  in  Consumer Complaint No. 306 of 2014, titled  Pharos  Solutions Pvt. Ltd.  Vs. Tata Motors Pvt. Ltd. & Ors., decided on  01.09.2014,  the  facts  of  which  case, are identical  to  the case  in hand,  we  have held  that  the  complainant  is  not  a ‘consumer’.

20.    The  car  in  hand  was  not  purchased  exclusively for the purposes of  earning  livelihood  by means of self-employment for the Director  of  the Company.  It  is  not  for  the livelihood  of  the  Director  or  personal  use  of the  Director. He  has  to use the car only for  commercial  purposes and  that  is why, he purchased it in the name of the company.  There is no 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.

21.     This  Commission  under  the Consumer Protection Act, 1986,  does not  deal  with  the cases of  bribery  and fraud.  These entail a lot of evidence and  proper  investigation.  The  offence must stand proved in accordance with law.  Although,  the pleadings are quite impressive, yet,  the facts are yet  to  be  discussed  down  the  ground.  The consumer  fora  cannot  arrogate to itself the powers of a CBI Court or a Court  under  the provisions of  Prevention of Corruption  Act, 1988.  It  is too early  to  give our piece  at this stage in  absence  of  solid  and  unflappable  evidence.   All these allegations cannot be proved  through mere affidavits or interrogatories.  It  is pertinent  to  note  that   cross  examination of  the witnesses is  the life/ blood of  our  legal  system.  It is  the  only  way,  a Judge  can  decide whom  to trust  and  an answer,  during cross-examination,  may  wreck  one’s  case.   It  is painfully  apparent  that  it  is  impossible to gauge  the real issue.  This Commission is unable to  winnow truth  from falsehood.  This  Commission can go into  the  subject,  only skin deep.   It cannot  be  said  at  this stage,  at which way the wind  will  blow.

22.    In a   recent  authority  titled Pesi  Dady Shroff Vs. Boehringer   Ingetheim Denmark & Anr., Civil Appeal No.9453 of 2013, filed against this Commission’s  judgment  and  order  passed in Consumer Complaint No.164, dated 10.07.2013, the Hon’ble Supreme Court was pleased  to  make  the following observations :-

“Leaving the question of law open, as to whether in such a fact situation, provisions of Consumer Protection Act, 1986, are applicable, it is open to the appellant to approach the Civil Court for the simple reason  that for  the purchase price of Rs.4-5 lakhs in 2003, he has claimed  a sum of  Rs.73.35 crores. Such a claim can be adjudicated only  after the assessment of evidence, etc., before the Civil Court and, therefore,  it  is a fit case where, even if the Consumer Protection Act, 1986, is applicable, the appellant must approach the Civil Court  for appropriate relief.

With these  observations,  the civil appeal is disposed of”.

23.    In Synco  Industries  Vs. State Bank  of  Bikaner & Jaipur nd Others, (2002) 2 SCC 1,  the Hon’ble Apex Court  has held as under :-

“3. Given the nature of the claim in the complaint  and   the  prayer  for  damages in   the sum of rupees fifteen crores  and for an additional sum of rupees sixty lakhs for covering the cost of travelling and other expenses incurred by the appellant, it is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses.  It is, therefore, in any event,   not an appropriate case to be heard and disposed of in a summary fashion.

The National Commission was right in giving to the appellant liberty to move the civil  court.  This is an appropriate claim for a civil court to decide and, obviously, was not filed before a civil court to start with because, before the consumer forum, any figure in damages can be claimed without having to pay the court fees.  This, in that sense, is an abuse of the process of the consumer forum”.

24.    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,  it  may seek help  from  the  celebrated  authority  reported  in  Laxmi  Engineering  Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, on the question of limitation.