DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No. 333/2019
M/s Attree Hire-Purchase and Leasing Co. Pvt. Ltd.
Having its office
At :6- D, Pratap Market, Munirka,
New Delhi-110067
Through its Authorized Signatory
Shri Sharvan Kumar Arya. ….Complainant
Versus
M/s Universal Sompo General Insurance Co. Ltd.
Having its office at
Flat No. 28, 2nd Floor, Krishna Market,
Lajpat Nagar-1, New Delhi-110034
Through its authorized signatory.
….Opposite Party
Date of Institution : 04.12.2019 Date of Order : 20.02.2020
Coram:
Ms. Rekha Rani, President
Ms. Kiran Kaushal, Member
Ms. Rekha Rani, President
ORDER
- M/s Attree Hire-Purchase and Leasing Co. Ltd. (in short the complainant) filed the instant complaint under section 12 of the Consumer Protection Act, 1986 as amended up to date (in short the Act) pleading therein that complainant is a company duly incorporated under the Companies Act having its branch office at 6-D, Pratap Market, Munirka, New Delhi and running its business under the name and style of M/s Attree Hire-Purchase and Leasing Co. Pvt. Ltd. (Para-1 of the complaint). It is further pleased that it is owner of a Truck bearing registration No. HR-74-9858 which is insured with Universal Sompo General Insurance Co. Ltd. (in short the OP) vide policy No. 2315/57988104/00/000 which is valid from 30.11.2017 to 29.11.2018. On 31.10.2018 driver of the complainant namely Israil had taken this vehicle to Satbari. Around 4.30 AM, he went to answer the call of nature. He returned after 15/20 minutes and was shocked to see the vehicle missing. Police was informed and FIR was registered. Complainant lodged claim with OP. OP vide its email dated 25.06.2019 sought frivolous clarification from the complainant. Complainant has sought Rs.13,00,000/- towards loss of vehicle and Rs.1,00,000/- towards harassment.
- The case is at initial stage.
- We have seen the file and heard Shri Karan Singh Tanwar Adv. for the complainant.
- Admittedly, complainant is a company duly incorporated under the Companies Act and is running its business. The vehicle in question is a truck which was being driven by a driver of the complainant on the date of loss of vehicle.
- Now a question arises as to whether the complainant is a consumer to maintain the instant complaint before this forum for the redressal of its grievance.
- The word 'consumer' has been defined under Section 2(1)(d) (i) as under :
“(d) ‘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 obtain 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 or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.”
7. The Supreme Court has discussed the term ‘consumer’ in Laxmi Engineering Works v PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 3 SCC 583, wherein it was held:
“The National Commission appears to have been taken a consistent view that where a person purchases goods 'with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit', he will not be a ‘consumer’ within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion - the expression ‘large scale’ is not a very precise expression - Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression ‘commercial purpose’ - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a ‘consumer’ but a person who buys a typewriter or a car for typing others’ work, for consideration or for plying the car as a ‘taxi’, can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for 'commercial purpose' would not yet take the purchaser out of the definition of expression of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of ‘self employment’, such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a 'commercial purpose', to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., 'uses them by himself 'exclusively for the purpose of earning his livelihood ' and 'by means of self-employment' make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer.
Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist / help him in operating the vehicle or machinery, he does not cease to be consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer.”
8. Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC)., Hon'ble National Commission observed thus :-
“3. From the facts narrated in the complaint, it is clear that the Turbine (T.G. Set) in question had been purchased by the complainant for commercial purpose and, purchase for commercial purpose is excluded under Section 2(1)(d) (i) of the C.P. Act.”
9. In Vandana Global Limited vs M/s Jaypee Engg. & Hydraulics Complaint Case No.13/06 before Chhattisgarh State Consumer Disputes Redressal Commission, Pandri, Raipur (C.G.) complainant was a limited Company and dealt in the business of manufacturing Sponge Iron, Billets, Power, Ferro Alloys, Ferro Manganese, Metal Ferro Manganese, Silico Manganese, Metal Silico Manganese etc. State Commission vide its order dated 08.04.2013 observed that complainant purchased JP-Rok Machine for commercial purpose and thus complainant was not a Consumer and its request to direct OP to return the amount paid for defective product with interest and compensation was dismissed.
10. In Raj Aggrawal vs G.M.V.E. complaint case No. 23/2009, complainant purchased 4 vehicles. Claim was filed in respect of each vehicle which was still in warranty period and were not being repaired by the OP. OP submitted that the vehicle in question was purchased for commercial purposes and plied by the complainant for transportation business for earning profits and therefore he did not come under the category of a consumer. Chhattisgarh State Commission vide its order dated 11/12/2009 observed that:
“12. From the description of the complainant in the cause title of the complaint, it appears that the complainant is running the business in the name and style as Raj Aggrawal and Company. The use of word “and company” shows that it was not only Mr. Raj Aggrawal, who is owner of the company, but along with him some other persons are also there and so it has become a company of more than one person that is why along with the name of Mr. Raj Aggrawal, “and Company” word has been used. In the Certificate of Registration of the vehicle also, name of the registered owner has been shown as “Raj Aggarwal and Company”. Thus, when the vehicle is property of a Limited Company, // 14 // having more than one person engaged in the affairs of the company, then it can never be said that any of the vehicle, was purchased by a person to earn his/her livelihood by self-employment. When it is a question of Company, then profit earning motive, is self apparent.
11. In Pushpa Meena vs. Shah Enterprises (Rajasthan Ltd.) (1992) 1 CPJ 271 purchase of a vehicle for running it as a taxi was held to be use for commercial purpose”.
12. The vehicle in question is a truck which was being driven by a driver of the complainant on the date of loss of vehicle. Complainant is a company so was obviously not purchased by a person to earn his livelihood by way of self employment. Complainant is a company and the vehicle is evidently used for earning profits. Complaint is not maintainable as complainant is not a Consumer.
Let a copy of this order be sent to the parties as per rules. File be consigned to record room.
Announced on 20.02.2020
