JUDGMENT 10.11.2010 Justice Pritam Pal, President 1. This appeal by complainant is directed against the order dated 28.5.2009 passed by District Consumer Forum-I, U.T. Chandigarh whereby his complaint bearing No.730/2009 was dismissed in limine. 2. The complainant Kanwaljit Singh Walia had filed a complaint before the District Forum in his individual capacity against the respondents/Opposite parties (Hereinafter to be referred as OPs) with the following averments ; The complainant allured by the proposal given by OP No.1 gave consent to install the new designed Lift (Elevator) at his residence for the use of his family members including paternal aunt who was suffering from various ailments and was unable to climb stairs. A contract was entered into between him and the OP Company vide letter dated 31.12.2004. It was alleged that as per terms and conditions, the installation work of the Elevator was required to be completed within a period of 14 weeks from the date of receipt of the order or receipt of advance payment but the installation procedure kept on getting delayed on one pretext or the other. However, the payment was made by him from the company account which was running the business of catering in the name and style of M/s Commando Caterers Pvt. Ltd. at SCO No. 491-492, Sector 35-C, Chandigarh. The installation of the elevator was completed, albeit unsatisfactorily, in the month of June/July, 2005. On account of having suffered enormously on account of the delay in installation as per the terms and conditions of the contract as well as nuisance/agony caused due to scattering of spare parts and machinery in the drive way of the house as well as the living area, the Complainant had sought to initiate appropriate proceedings, but OP No.3 vide their letter dated 23.7.2005, extended the warranty by one year from 1.7.2005 to 30.6.2007. The Elevator was installed after a delay of more than three months and its performance was far from satisfaction as the same was susceptible to break down and at various times, either the doors of elevator did not close properly or get scratched due to improper installation. The aforesaid problem when communicated to OP Company, it was assured that the same would be rectified soon and if the need so arose, they would replace the elevator, but they did nothing to redress the grievances of the Complainant. Repeated reminders in this regard fell on deaf ears, thus, making the Complainant to suffer much loss and agony on account of having been supplied the defective product which had not been installed properly. Since OP Company was deficient in providing proper service, a legal notice dated 30.4.2009 was served upon OPs which was duly received by OPs but to no effect. Hence, alleging unfair trade practice and deficiency in service on the part of OPs, complainant filed complaint before the District Forum. 3. When this complaint was at the stage of admission, learned District Forum-I dismissed the same mainly on the ground that the complainant was neither a consumer, nor a competent person to file the complaint against OPs. It was also observed that in fact the alleged defective elevator installed at his residence was purchased in the name of his company known as Commando Caterers Pvt. Ltd. in the year 2005. Prior to that, aforesaid company of the complainant had entered into an agreement with the company of OPs vide letter dated 31.12.2004 but the said agreement has not been placed on the file. Admittedly complainant in his individual capacity had not purchased the said elevator from the OPs. It was only the aforesaid company i.e. M/s Commando Caterers Pvt. Ltd. of which complainant claims himself to be the Managing Director had purchased the same. If we go through the Memorandum of Article and Memorandum of Association of Commondo Caterers Private Limited then it becomes quite apparent that its objects are to carry the business of running of hotel, motels, restaurant canteens, caterers etc. These facts indicate that the company of the complainant was established for running commercial activities. It appears that in order to avoid the objection of ‘commercial activities’ complainant himself has come forward to file this complaint in his individual capacity. Under the Consumer Protection Act, a person who is running a business for commercial purpose is not a consumer. 4. Taking into consideration the aforesaid facts and circumstances, we come to the conclusion that at the first place, complainant in his individual capacity cannot be termed as a consumer qua OPs as the Invoice with regard to the purchase of Elevator is not in his name. Further, he has also not placed on the file basic documents i.e. letter of contract dated 31.12.2004 whereby OPs had agreed to install the elevator for the reasons best known to him. In fact the terms and conditions of the agreement entered between the parties was an essential document to reflect the terms and condition agreed between the parties. 5. Faced with the facts and circumstances as stated above, we find no ground to interfere in the impugned order. Hence, this appeal is hereby dismissed, leaving the parties to bear their own costs. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | |
