Haryana

Panchkula

CC/218/2024

M/S GAMP TECHNOLOGIES. - Complainant(s)

Versus

PIGEON MEDIA PVT.LTD - Opp.Party(s)

KARAN YUVRAJ.

25 Oct 2024

ORDER

            BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

Consumer Complaint No	:	218 of 2024
Date of Institution	:	07.10.2024
Date of Decision	:	25.10.2024

 

 

M/s Gamp Technologies Pvt. Ltd. Regd. Office Plot No.479, Industrial Area Phase-1, Panchkula Haryana-134113 through its Authorized Officer Kamaljeet Singh.

                                                        ….Complainant

 

Versus

1.     Pigeon Media Pvt. Ltd.,Regd. Office: SCO 15, Sector-10, Panchkula, Haryana-134109 through its Director Ms. Jaspinder Kaur.

2.     Ms. Jaspinder Kaur(Director), Pigeon Media Pvt. Ltd. Regd officer SCO 15, Sector-10, Panchkula, Haryana-134109.

3.     Mandeep Singh(Director), Pigeon Media Pvt. Ltd. Regd. Office SCO-15, Sector-10, Panchkula, Haryana-134109

4.     Kuljit Singh(Director)-Pigeon Media Pvt. Ltd. Regd office SCO 15, Sector-10, Panchkula, Haryana -134109

5.     Mr.Lokesh Bhardwaj(Sales Manager)-Pigeon Media Pvt. Ltd. Regd office SCO 15, Sector-10, Panchkula, Haryana-134109

                                                                                     ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh.Satpal, President.

                        Dr.Sushma Garg, Member

                        Dr.Suman Singh, Member

 

 

For the Parties:   Sh. Karan Yuvraj, Advocate for the complainant.

                       

                                                                       

ORDER

(Satpal, President)

1.             The brief facts, as alleged in the present complaint, are, that the complainant, which is a Private Limited Company, registered under the Company Act, 1956, having its registered office in Industrial Area Phase-I, Panchkula, is engaged in the business of manufacturing and selling of the medicines, which is the only source of its livelihood; the complainant-company is Micro, Small & Medium Enterprises(MSME Unit) and registered on Udyam Portal. The Opposite party No.1(hereinafter referred to as OP No.1) works as middleman between buyers, who want to buy the bulk/large quantity of medicines, on the  one hand and the sellers on the other hand. The OP No.1 provides its services to the manufacturer/sellers to sell the goods directly to the buyers/consumers through its portal, namely, Trade Maantra-Portal(hereinafter referred to as Portal) and in return it(the OP No.1), charges fee through its  packages. It is stated that the OP No.1 in order to sell its packages used to send the emails and also indulged into the door to door campaign and in this regard, the Opposite party No.5 (hereinafter referred to as OP No.5) Sh. Lokesh Bhardwaj visited at the work place of the complainant’s company several times and showed a Rosy picture and allured the complainant to purchase the package regarding leads after (customer requirement along with contact details)(hereinafter referred as leads) from the OPs. On 06.05.2024, the OP No.5 again contacted the complainant and explained the features of the package as well as the services given by the OP No.1 and assured the complainant that there is dedicated team of OPs, who always verify and do the quality-check before the data/leads is/are shared with its customer through portal. The complainant was not satisfied with the assurance given by the OP No.5 about the procedure/methods of verification of information/leads, which are provided by the OP’s but the OP No.5 assured that leads were duly “confirmed” before sharing/displaying on portal and further the OP No.5 also assured that one “Relationship Manager” would also be appointed personally immediately after purchase of the package for the support and service of the complainant only. It is averred that on the basis of assurance and promise made by the OP No.5 vide his email dated 06.05.2024, the complainant purchased a silver package of the OPs, wherein it was promised by the OP to provide “24 Active Fresh Leads” on weekly basis and accordingly, the complainant made the payment of Rs.78,340/-. The copy of tax invoice dated 07.05.2024 was given by the Ops on 22.05.2024 through email. It is stated that the OP’s have provided the leads to the complainant–company but the same were neither fresh nor Active and useful/appropriate as mentioned. Even on using the old and non-active /bogus leads were used and the OP’s were registering the same in the account of complainant as the limit was of 24 leads in a week. The OP’s has to provide “24 Active Fresh Leads” as per the package and agreement but the OP’s provided the non-verified, non-active, wrong and misappropriate/bogus leads, which were of no use and due to which, the complainant has to face the loss. In the meanwhile, the complainant raised/ made several concerns and requests to the Ops but no one replied and even adhered to the requests/complainants of the complainant company. Eventually, the complainant has called the meeting on 07.06.2024 to get rid off the bogus and wrong data/leads and accordingly, the complainant has also recorded the Minutes of meeting”. The said meeting was attended by Ms.Ritu Tomar (Senior Manager) and Mr.Gagandeep Singh(Relationship Manager) in which it was assured by representative of the OP’s that all issues would be resolved and the OP’s would again meet the complainants on 24.06.2024 but after the meeting the approach  of the OP’s remained the same and the issues raised by the complainant-company remained unresolved. The relationship Manager, Sh.Gagandeep Singh also did not respond properly. Due to the causal and indifferent approach adopted by the OPs, the complainant-company was constrained to ask for refund of the amount of Rs.78,340/- that was paid on 07.05.2024 and cancellation of the package/services with immediate effect. The OPs responded vide email dated 28.06.2024 but the issue raised by the complainant were not resolved and ultimately, the complainant shared a report with OP’s through the email dated 02.07.2024. The summary of the report is mentioned as below:-

No. of calls/leads	Outcome of the calls/leads
74	Never answered the calls
66	Explicitly stated that no as such requirement
45	Call was going on but no more responded
4	Mobile No.not reachable
4	Irrelevant/Bogus Lead

 

The OP No.1 was requested for the refund of the amount by terminating its service through calls and emails dated 06.07.2024, 10.07.2024, 25.07.2024, 01.08.2024 and 16.08.2024 but to no avail. Due to the act and conduct of the OPs, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.

2.             The learned counsel for the complainant, during arguments, reiterated the averments as made in the complaint as also the affidavit of the complainant and contended that the complainant, which is a Private Limited Company, is entitled to invoke the jurisdiction of the Consumer Commission as per Provisions contained in Section 2(7) of the Consumer Protection Act, 2019.

                The learned counsel in support of his contention has placed reliance on the following case laws:-

 i.     M/s Kozyflex Mattresses Private Limited Vs. SBI General Insurance Company   Limited and Anr. reported in 2024(SC) 255.

ii.       Tosoh India Pvt. Ltd.(formerly Lilac… Vs. Ram Kumar and 3 ors in Revision      Petition No.2833 of 2018 decided on 06.01.2020 (NC).

                It has been argued that the complainant is engaged in the business of manufacturing and marketing of medicines so as to earn its livelihood by means of self-employment. It has been argued that the complainant-company is registered as micro, small and medium(MSME) Unit on Udyam Portal. The learned counsel further argued that the Silver package, as offered by the OPs was purchased  by the complainant by paying a sum of Rs.78,340/-, wherein it was promised by the OPs to provide “24 fresh active leads” on weekly basis to the complainant but the OP has failed to provide its services as per the silver package. In this regard, our attention was invited towards the details of non verified and improper leads as given in para no.9 of the complaint, which are as under:-

No. of calls/leads	Outcome of the calls/leads
74	Never answered the calls
66	Explicitly stated that no as such requirement
45	Call was going on but no more responded
4	Mobile No.not reachable
4	Irrelevant/Bogus Lead

               

                Concluding the arguments, the learned counsel contended that the OPs are not entitled to withhold or forfeit the amount paid by the complainant, for which, no services were delivered by them to the complainant and thus, it has been prayed that the notice may be issued to the Ops by admitting the present complaint.

3.             A complaint, before it is admitted for adjudication, is required to qualify, inter alia, various parameters, which may be enumerated as below;

1. That the complainant falls under the category of a consumer and that there exist a consumer dispute.
2. That the complaint has been instituted within the period of limitation as required under Section 69(1) of CP Act, 2019.
3. That the relief claimed do not exceed the pecuniary jurisdiction of this Commission.
4. That this Commission has territorial jurisdiction to entertain and decide the present complaint.

 

4.             The first question that arises for consideration before the Commission, is, whether the complainant qualifies the ingredients of definition of consumer. The term “consumer” is defined in Section 2(7) of the Consumer Protection Act, which for the sake and clarity is reproduced as under:-

1. 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.
2. Hires or avails of any service 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 service  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 service for any commercial purpose.

 

          Explanation- For the purposes of this clause:-

1. The expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.

 

5.             As per above definition, a person, who avails the services for any “commercial purpose” is excluded from the purview of the “consumer”.

6.                The question as to whether an activity or a transaction is for a commercial purpose has been discussed at length in various cases by the Hon’ble Apex Court as well as the Hon’ble National Consumer Commission. The Hon’ble National Commission in consumer complaint no.137/2020 decided on 31.01.2020 in case titled as M/s Bird Machines Pvt. Ltd. Vs. Indusland Bank Limited vide Para No.4 & 5 discussed the issue as under:-

4.       The issue involved in this complaint came to be considered by this Commission in West Fort Hi-Tech Hospital Limited Vs. Punjab National Bank decided on  07.01.2020 in FA No.1264 of 2018 and the following view was taken:-

“The term ‘Consumer’ used in Section2(1)(d) of the Consumer Protection Act came up for consideration of this Commission in Revision  Petition No.2833 of 2018 decided on 06.01.2020 and after considering several decisions  on the issue, including  Synco Textiles Pvt.Ltd. Vs. Greaves Cotton & Company Ltd.(1991) 1 CPJ 499(NC), Cheema Engineering Services Vs. Rajan Singh(1997) 1 SCC 131, Madan Kumar Singh(Dead) through L.R.Vs. District Magistrate, Sultanpur & Ors.(2009) 9 SCC 79 and Paramount Digital Colour Lab & Ors. Vs. Agfa India Private Limited & Ors. (2018) 14 SCC 81, the larger Bench inter-alia held as under:-

1. Only a person  engaged in large scale commercial activities for the purpose of making profit is not a consumer;
2. There should be a direct nexus between the large scale commercial activities in which a person is engaged and the goods purchased or the services hired or availed by him, before he can be excluded from the purview of the term ‘consumer’. Therefore any goods  purchased or the services  hired or availed even by a person carrying on business activities  on a large scale  for the purpose of making profit  will not take him out of the definition of the term ‘consumer’, if the transaction of purchases of goods or hiring  or availing  of services is not intended to generate profit through the large scale commercial activity undertaken by him and dos not contribute to or form an essential part of his large scale commercial activities.

(c )     What is crucial for the purpose of determining  whether a person is a                       ‘consumer’ or not is the purpose for which the goods were purchased or               the services were hired or availed and not the scale of his commercial                          activities.

5.       It would thus be seen that a person engaged in large scale commercial           activities intended to make profit, is not a consumer and what is crucial                for the purpose of deciding whether a person is a consumer or not is the            purpose of which the goods are purchased or the services are hired or                    availed, as the case may be.

7.             The issue came up for discussion before the Hon’ble National Commission in consumer case no.886 of 2020 titled as M/s Freight System (India) Private Limited Vs. Omkar Realtors & Developers Private Limited & Anr. decided on 25.01.2021, wherein in para no.11 of the said order, reliance was placed on the law laid down by the Hon’ble Supreme Court in the case titled as Lilawati Kirtilal Mehta Medical Trust in Civil Appeal No.12322 of 2016 decided on 14.11.2019, wherein the Hon’ble Apex Court has held that:-

          7.       To summarize from the above discussion, though a straight-jacket       formula cannot be adopted in every case, the following broad principles can be       culled out for determining whether an activity or transaction is ‘for a         commercial purpose’:

i.         The question of whether a transaction is for a commercial purpose would                  depend upon the facts and circumstances of each case. However,                            ordinarily, ‘commercial purpose’ is understood to include manufacturing/              industrial activity or business-to-business transactions between                                     commercial entities.

ii.       The purchase of the good or service should have a close and direct nexus                 with a profit-generating activity.

iii.       The identity of the person making the purchase or the value of the                          transaction is not conclusive to the question of whether it is for a                         commercial purpose. It has to be seen whether the dominant intention or            dominant purpose for the transaction was to facilitate some kind of profit            generation for the purchaser and/or their beneficiary.

iv.      If it is found that the dominant purpose behind purchasing the good or            service was for the personal use and consumption of the purchaser                           and/or their beneficiary, or is otherwise not linked to any commercial                             activity, the question of whether such a purchase was for the purpose of              ‘generating livelihood by means of self-employment’ need not be looked                   into.

8.             From above, it is found that the Hon’ble Apex Court has laid down the twin test of “close & direct Nexus with profit generating activity” and “dominant purpose” behind purchasing of goods or services to determine and ascertain as to whether an activity or a transaction is for “commercial purpose”.

9.             The case of the complainant is that the complainant-company has availed the services of the OPs for providing information to it in the shape of leads i.e. details/ inventory of the bulk purchasers of medicines, who are in the need of the medicines on large scale. The learned counsel has stressed that the services availed by the complainant from the OPs as per the silver package do not fall under the category of commercial transaction. It has been argued that the OPs as per package had to provide the information only of such persons or institution, who were in need of medicines in bulk or in large scale. It was argued that no sale and purchase transactions was to be carried out between the complainant and OPs as per the silver package and thus, it is alleged that the services availed by the complainant of the OPs vide silver package agreement for a sum of Rs.78,340/- were excluded from the category of “Commercial transaction”.

10.            The aforesaid submissions made by the complainant are not tenable. Admittedly, the complainant had availed the services of the Ops vide silver package amounting to Rs.78,340/- so as to expand and promote its business by selling its product i.e. medicines etc. to the buyers/purchaser, whose details/inventory was to be furnished by the OPs on its portal to the complainant.

11.            Applying the twin test of “close & direct Nexus with profit generating activity and “dominant purpose” as propounded by the Hon’ble Supreme Court to the facts of the present case, it is crystal clear that the services availed by the complainant vide silver package amounting to Rs.78,340/- from the OPs were for “commercial purpose”.

12.            According to the explanation appended with the said section 2(7)(ii), a person who buys goods and uses the same exclusively for the purpose of earning his livelihood by means of self-employment is excluded from the purview of “commercial purpose”. Pertinently, the “explanation” does not speak about the person, who avails the service for a “commercial purpose”. The “explanation” only speaks about a person who buys the goods and not about a person, who “avails the services” for a commercial purpose; thus, the plea taken by the complainant that the services of the OPs were availed by the complainant-company to earn its livelihood by means of self-employment is not tenable.

13.            For the sake of clarity and better understanding of the phrase i.e. “commercial purpose”, the comparative table of the provisions contained in the earlier Act i.e. the Consumer Protection Act 1986 and the New Act i.e. the Consumer Protection Act 2019 is given below:-

Consumer Protection Act 2019	Consumer Protection Act 1986
Explanation- For the purposes of this clause:- The expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.	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.

 

14.            From the perusal of above, it is evident that the phrase/ expression i.e. the “service availed” stands omitted in the New Consumer Protection Act, 2019, whereas the same is found inserted in the earlier Consumer Protection Act, 1986; so, under the Consumer Protection Act, 2019, with regard to “commercial purpose”, a person who ‘buys goods” exclusively  for the purposes of earning his livelihood by means of self-employment is a ‘consumer’; but a person who ‘availed services’ exclusively for the purpose of earning his livelihood by means of self- employment is not a ‘consumer’. Therefore, it is clear that in the present complaint, the complainant is not a ‘consumer’ being ousted by the “Explanation” (a) to definition of ‘consumer’ under Section 2(7) of the Consumer Protection Act, 2019.

15.            The Hon’ble NCDRC in para no.8 of its judgment dated 25.01.2021 in consumer case no.886 of 2020 titled as  M/s Freight  System (India) Pvt. Ltd. Vs. Omkar Realtors & Developers Pvt Ltd. & Anr(NC) decided on 25.01.2021 has held as under:-

8. Explanation (a) to Section 2(7) that “ the expression “commercial purpose” does not include  use by a person of goods bought and used  by him exclusively for the purpose of earning his livelihood, by means of self-employment.”, provides  an exception for ‘goods’, not for ‘service’.

16.            Thus, the complainant is not covered under the definition of consumer as defined in Section 2(7) of the CP Act 2019. Therefore, the present complaint is not maintainable under the Consumer Protection Act, 2019. The observations made by the Hon’ble National Commission in the case of M/s Freight System(India) Private Limited (supra) in para 16 and 19 of the said order are very relevant which are reproduced as under:-

16.     The complainant Co.’s case, that it is a ‘consumer’, fails on its facts and on the law. It may however also be observed that anyhow allowing anyone into consumer protection for has adverse ramifications, including inter alia:

a)       evasion of court fee in civil courts; and

b)       eroding into the time and resources of consumer protection for a, which could otherwise be better devoted to the ordinary general consumers, who straightaway fall, ex facie, in the definition of  ‘consumer’ (without having  to    write a treatise to enable their anyhow entry into the fora).

19.     It is made explicit that the merit of the dispute between the opposing sides has not been entered into. The complainant Co. is free to agitate its case in any appropriate forum/court as per the law.

                It is well settled legal proposition of law that the merits of the case are not required to be looked into, if the complaint is found not maintainable under the Consumer Protection Act, 2019.  

17.            In the light of discussion made above, the present complaint is dismissed in limini with liberty to the complainant to approach the competent authority/court if he is so advised. A copy of this order be sent to the complainant free of costs and file be consigned to the record room after due compliance.

Announced on: 25.10.2024

 

        Dr. Suman Singh            Dr.Sushma Garg                Satpal

             Member                               Member                      President

 

Note: Each and every page of this order has been duly signed by me.

 

                                                 Satpal

                                            President