Order No. 9 date: 12-05-2015
Today is fixed for passing order in respect of the maintainability petition moved by the OP No. 2.
By such petition, it is submitted by the OP No. 2 that the petition of complaint, moved by the Complainant does not disclose any deficiency on the part of the OP No. 2. Due to such non-disclosure of any cause of action against the OP No. 2, the instant complaint case is not maintainable against them. Moreover, the Complainant is not a ‘consumer’ under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, as the car was purchased by the company for commercial purpose. The Complainant is a Private Limited Company, engaged in commercial activities. The Complainant purchased the vehicle in question after taking loan from the HDFC Bank and was repaying monthly instalment @ Rs. 1,06,152/- to the said bank from its own account. Also, all expenses for the purpose of maintaining the said vehicle was made from the bank account maintained by the Complainant in its normal course of business which is evident from the financial statements of the Complainant company. Further, the petition of complaint is affirmed by an employee of the Complainant company in the capacity of its authorized agent. The said vehicle has been purchased for the use of the Complainant Company for transacting its business. Therefore, from every aspect, it is clear that the Complainant Company purchased the instant vehicle entirely for commercial purpose and thus, the instant petition of complaint is not maintainable. It is submitted by the Complainant that the alleged deficiency in service qua the car started in December, 2010, when for the first time the Complainant sent the car for service and repair. Also, in terms of prayer clause (c), such prayer for refund of amount collected from the Complainant towards replacement of parts, servicing and repairing of the car, started from December, 2010. It goes to show that, the cause of action for filing the present complaint arose in December, 2010. So, the instant case is also barred by limitation.
Complainant filed W.O. against such maintainability petition of the OP No. 2 stating inter alia that the Complainant has been provided with a defective BMW and the OPs have failed to remove the defects permanently from the said car. Although the complaint has been filed by a Private Ltd. Company, but that does not preclude it from making such application as it is the settled law that even a Private Limited Company can file a complaint before the Consumer Fora if the goods in question is not used for any commercial purpose. In the present case, the business of the Complainant is strictly a close family business and functions like a partnership firm. Even the shares of the shareholders-cum-directors of the present Complainant company are not floated in the commercial market and are not available for sale. The instant car is mainly used for personal conveyance of the member-cum-director of the Complainant company and not for any commercial purpose The relationship between the OP Nos. 1 and 2 is that of principal and authorized dealer. The OP No. 2 sells their car through the OP No. 1 and get a lion share from the sell value as per the dealership agreement between the two. Further, the OP No. 2 also admitted their liability through email. Though the present complaint is affirmed by an employee of the company, but that does not mean that the said car is used for commercial purpose. The cause of action of the instant complaint case arose on 01-03-2013 and thereafter continued from time to time. So, the instant case is not barred by limitation.
Ld. Advocate for the OP No. 2 has submitted that instant case has unnecessarily been filed against them. There is no whisper in the four corners of the petition of complaint as to any sort of deficiency in service on their part. Therefore, they are not connected with the present dispute in any manner. Moreover, the instant case is also not maintainable as the Complainant is not a consumer u/s 2(1)(d)(ii) of the Consumer Protection Act, 1986, since it is a Private Limited Company and uses the car for commercial purpose. Lastly, the instant case is hopelessly barred by limitation as the alleged cause of action arose in December, 2010, while the instant case has been filed on 15-10-2014. In support of his contention, he has referred to two decisions of the Hon’ble National Commission, one reported in 2014 SCC OnLine NCDRC 289 and another in C. C. No. 306/2014.
Ld. Advocate for the Complainant, on the other hand, has stated that although it is a Private Ltd. Company and authorized representative of the Complainant executed the affidavit, fact remains that the car was mainly used for the personal use of Members, Directors and family members of the Company. So, it cannot be said that only because it is a Private Ltd. Company, it does not construe as a ‘Consumer’ to come under the ambit of the Consumer Protection Act, 1986. Further, the instant complaint case is not at all barred by limitation. Fact remains that after purchase, the car had to be repaired number of times, last of which was done in the year 2014, also they made several correspondences with the OPs in this regard and the OPs lastly sent an email on 27-06-2014. Therefore, the instant case being filed in the same year of exchanging correspondence between the parties, the instant case has been filed well within the period of limitation. As such, the instant petition be rejected with cost.
The primary objection raised by the OP No. 2 about maintainability of instant complaint case is in respect of the status of the Complainant as a ‘consumer’, as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. For proper illustration of the dispute, we append below the definition of ‘consumer’ as mentioned under the 1986 Act.
‘Sec. 2(1)(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 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
- 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 purposes
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 Act is crystal clear in its content as to who can come within the purview of this Act and who cannot. Under the Act, any dispute related to goods purchased for commercial purpose cannot be adjudicated unless it is proved without any tinge of suspicion that such ‘commercial purpose’ is for the exclusive purpose of earning one’s livelihood by means of self-employment.
It is stated in paragraph 2 of the petition of complaint that, ‘… the complainant has bought one BMW car…….. from the authorized dealer of BMW being opposite party no. 1 herein for its use and for other personal use of Members, Directors and family members of the Company…..’ Admittedly, therefore, the Complainant used the car for its business purpose, besides the same being used by others for various purposes. The Complainant being a Private Limited Company, it cannot be said that such commercial purpose was by means of self-employment. The Complainant has also not placed on record any cogent document to show that maintenance cost of such car was borne by the Director of the company in his/her individual capacity. On the contrary, photocopies of Tax Invoices raised by the OP No. 1 clearly show that the same was issued in the name of the Complainant. That being the irrefutable position of the instant case and given the fact that purchase of vehicle for company use amounts to its purchase for commercial purpose, the instant case is not maintainable under the 1986 Act.
Although the instant case is otherwise maintainable, in the light of our aforesaid discussion, as also in view of the decisions referred to by the OP No. 2, we are of view that the Complainant does not qualify as a ‘consumer’ as defined u/s 2(1)(d) of the 1986 Act, and as such, the instant complainant case is not maintainable in its present form and prayer.
Hence,
ORDERED
That the M.A. No. 58/2015 be and the same is allowed on contest. Consequently, the C.C. No. 358/2014 stands dismissed being non-maintainable.
