O R D E R <br /> <br /> A. Rajesh, President.<br /> <br /> The case of the complainant is as follows.<br /> <br /> On 07-01-2008 the 1st opposite party has effected an advertisement of Toyota Innova car in Malayala Manorama daily, Pathanamthitta edition. In consequence of the advertisement the complainant approached the 1st opposite party’s Ernakulam office on 30-01-2008 and collected the address and mobile number of the complainant. The complainant alleged that the 1st opposite party was reluctant to collect the price of the car in accordance with the advertisement. Thereafter as per the direction of 2nd opposite party, the complainant visited the 1st opposite party’s Thiruvananthapuram office and discussed about the advertisement. The 2nd opposite party agreed to contact him later. Subsequently the opposite parties turned down the complainant’s demand. Hence he approached this Forum seeking direction to the opposite parties to give a car at a price to the tune of Rs. 1,17,193/- surprise new year gift, compensation of Rs. 500/- and litigation cost.<br /> <br /> 2. The opposite parties filed version contending as follows.<br /> The complainant is not a consumer under Section 2 (d) of the Consumer Protection Act, as has not bought any goods for consideration or availed any service from the opposite parties for consideration. The complaint itself is not maintainable since it is not within the purview of Sec. 2 (C) of the Act. The opposite parties admit the impugned advertisement in the daily offering a surprise new year gift in connection with purchase of new ‘Innova Car’ during January 2008 . Moreover the caption in the advertisement, “celebrating 3,00,000 Happy customers in the road” was misconceived and misinterpreted it as the price of an Innova car. Actually the price of a new car ranges from Rs. 7,24,870/- to 10,58,390/- according to the models. The opposite parties asserts that the complainant has no cause of action against the opposite parties and the complainant is not entitled to claim any relief as prayed for and the complaint is liable to be dismissed with cost to the opposite parties.<br /> <br /> 3. Before going to the merits of the case we heard the complainant and counsel for opposite party regarding maintainability of the complaint.<br /> <br /> 4. The complainant has produced the advertisement in question. The statement used in the advertisement is “celebrating 3,00,000 Happy customers on the road” Further it is stated that “Every day many Roles. One car. Innova. All you desire “.<br /> 1. Low Interest Rate of 6.53% or <br /> 2. Low Margin Money of Rs. 89,590/- or<br /> 3. Low EMI of Rs. 13,627/-<br /> Surprise new year offer, available 2008 model Innova”<br /> 5. Complainant who is appearing as party-in-person submitted that he has fixed the price of the car as Rs. 3,00,000/-. Interest at the rate of 6.53% amounts to Rs. 13,627, low margin money of Rs. 89,590/- and Low EMI of Rs. 13,627/- and surprise gift of Rs. 60,000/- were deducted from the price which is reduced to Rs. 1,17,193/-. According to him, he is entitled to receive a car at the price of Rs. 1,17,193/- from the opposite party as per the offer in the advertisement. The counsel for the opposite party vehemently argued that the complaint is not maintainable since the present complainant is not a consumer according to the Consumer Protection Act. <br /> 6. Section 2(1)(c) of the Consumer Protection Act defines a complaint and Sec. 2 (1) (d) defines a consumer. It reads as follows.<br /> In this act, unless the context otherwise requires-<br /> (c) “complaint” means any allegation in writing made by a complainant that-<br /> <br /> 3(i) an unfair trade practice or a restrictive trade practice has <br /> been adopted by 4(any trader or service provider;)<br /> <br /> (ii) 3 (the goods bought by him or agreed to be bought by him ) suffer from <br /> one or more defect;<br /> <br /> (iii) 3(the services hired or availed of or agreed to be hired or availed of by <br /> him) suffer from deficiency in any respect; a <br /> <br /> 5(iv) a trader or the service provider, as the case may be, has charged for the <br /> goods or for the services mentioned in the complaint, a price in excess <br /> of the price – <br /> <br /> (a) fixed by or under any law for the time being in force;<br /> (b) displayed on the goods or any package containing such goods;<br /> (c) displayed on the price list exhibited by him or under any law for the <br /> time being in force;<br /> (d) agreed between the parties;<br /> <br /> (v) goods which will be hazardous to life and safety when used are being <br /> offered for sale to the public,--<br /> <br /> (A) in contravention of any standards relating to safety of such goods <br /> as required to be complied with, by or under any law for the time being <br /> in force;<br /> <br /> (B) if the trader could have known with due diligence that the goods so <br /> offered are unsafe to the public; <br /> <br /> (vi) services which are hazardous or likely to be hazardous to life and <br /> safety of the public when used, are being offered by the service <br /> provider which such person could have known with due diligence to be <br /> injurious to life and safety)<br /> <br /> (d) “consumer” means any person who—<br /> <br /> (i) buys any goods for a consideration which has been paid or <br /> promised or partly paid and partly promised, or under any system <br /> of deferred payment and includes any user of such goods other <br /> than the person who buys such goods for consideration paid or <br /> promised or partly paid or partly promised, or under any system of <br /> deferred payment when such use is made with the approval of such <br /> person, but does not include a person who obtains such goods for <br /> resale or for any commercial purpose; or<br /> <br /> (ii)1(hires or avails of ) any services for a consideration which has been <br /> paid or promised or partly paid and partly promised, or under any <br /> system of deferred payment and includes any beneficiary of such <br /> services other than the person who 1 (hires or avails of) the services for <br /> consideration paid or promised, or partly paid and partly promised, or <br /> under any system of deferred payments, when such services are <br /> availed of with the approval of the first-mentioned person 2(but does <br /> not include a person who avails of such services for any commercial <br /> purpose);<br /> <br /> 3(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 purpose of earning his livelihood, by means of self-employment;)<br /> <br /> <br /> A person claiming himself as a consumer of goods should satisfy that, the goods are bought for consideration. There must be either sale or agreement to sell between seller and buyer the sale must be of goods the buying of goods must be for consideration. The meaning of the term ‘sale’ is to be construed according to the sale of Goods Act 1936 and the meaning of the term ‘Consideration’ is to be construed according to the Indian Contract Act.<br /> <br /> 7. In order to be a consumer according to Sec. 2 )(1) (d) (i) the complainant must have purchased car for a consideration or he must be the user of such goods other than the person who buys such goods. Hence a complaint can be made before this Forum only by the consumer of goods. So we conclude that the complainant is not a consumer as defined in the Act and we hold that the present complaint is not maintainable.<br /> <br /> 8. The advertisement may in the first blush fall within the purview of the definition of the phrase ‘unfair trade practice’ as provided under Sec. 2 (1) (r) (ix) of the Consumer Protection Act. The said definition reads as follows.<br /> <br /> 2. (1) In this Act, unless the context otherwise requires,--<br /> (r) “unfair trade practice” means a trade practice which, for the purpose <br /> of promoting the sale, use or supply of any goods or for the provision <br /> of any service, adopts any unfair method or unfair or deceptive <br /> practice including any of the following practices, <br /> namely,--<br /> <br /> (ix) materially misleads the public concerning the price at which product or like products or goods or services, have been or are, ordinarily sold or provided, and for this purpose, a representative as to price shall be deemed to refer to the price at which the product or goods or services, has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made.<br /> <br /> <br /> <br /> But a careful analysis of the advertisement would show that this was inserted not to mislead the public with regard to price of the subject matter of the advertisement. The complainant might have in an over enthusiastic mood misconceived it as the price of a inova car. It was quite unfortunate, that is what we can say. In the above back ground we need not further delves into the matter. <br /> 9.In short, we are dismissing the complaint and direct, that the parties shall bear their respective costs. <br /> Pronounced in the open Forum on this the 28th day of June 2008.<br />