Order No.08 Date-18.02.2020
The instant order arising out of an applicant dated 20.12.2019 filed by the OP praying for dismissal of the complaint on the ground of non-maintainability.
The matter was heard on 03.02.2020.
The Ld. Advocate for the OP has submitted that the complainant has filed the instant consumer complaint on the allegation of deficiency in service rendered in course of transaction of a vehicle bearing registration No. WB 24 AE 4397. According to Ld. Advocate for the OP, the instant consumer complaint is not maintainable as the complainant is not a consumer within the meaning of CP Act, 1986 and the subject vehicle was sold in the name of Shambhavi Forms Pvt. Ltd. whereas in the instant case the name of the complainant has been mentioned as Vishal Muskara. There is no privity of contract between the complainant and the OP. Shambhavi Forms Pvt. Ltd. is a company which deals commercial establishment. Shambhavi Forms Pvt. Ltd. purchased the subject vehicle for their business purpose.
Per contra, the Ld. Advocate for the complainant has strongly opposed the prayer of the OP on the ground that the complainant is legally authorized person to act on behalf of the Shambhavi Forms Pvt. Ltd. by the resolution of the Board of Directors dated 22.04.2019. He has further stated that the Hon’ble NCDRC has clearly expressed their view regarding commercial purpose in Controls and Switchgear Company Ltd. vs. Daimler Chrysler India Pvt. Ltd. and Tata Motors Ltd. reported in IV (2007) CPJ 1 (NC) and General Motors Pvt. Ltd. vs. G. S. Fertilizers Pvt. Ltd. and Laxmi Engineering Works vs. P. S. G. Industrial Institute, 1995 (3) SCC 583. Thus, impugned prayer of the OP is liable to be rejected with cost.
We have heard the submission of both sides. Perused the impugned application coupled with its WO. Also perused the consumer complaint and its WV.
Section 2 (1) (d) of the CP Act which defines the terms “consumer”, to extend it is relevant, reads as under:-
"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 obtains 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 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;]
It would thus be seen that the emphasis is on the purpose for which the goods are obtained, though the use to which the goods are actually put would be helpful in deciding the purpose for which they were obtained.
4. The term 'commercial purpose' has not been defined in the Consumer Protection Act and as held in Laxmi Engineering Works v. P.S.G. Industrial Institute [(1995) 3 SCC 583], in the absence of a statutory definition, we have to go by its ordinary meaning. 'Commercial' denotes 'pertaining to commerce' (Chamber's Twentieth Century Dictionary); it means "connected with, or engaged in commerce; mercantile, having profit as the main aim" (Collin's English Dictionary) and the word 'commerce' means "financial transactions, especially buying and selling of merchandise on a large scale" (Concise Oxford Dictionary)".
4. Going by the dictionary meaning, a car or for that matter any goods obtained and the services hired or availed by a company can be said to have been obtained or hired or availed for a commercial purpose, only if the said goods or services are intrinsically connected with, or related to the business or commerce in which the company is engaged. The acquisition of the goods or the hiring or availing of services, in order to bring the transaction within the purview of section 2 (1) (d) of the Consumer Protection Act, therefore, should be aimed at generating profits for the company or should otherwise be connected or interwoven with the business activities of the company. The purpose behind such acquisition should be to promote, advance or augment the business activities of the company, by the use of such goods or services. As observed by the Hon'ble Supreme Court in Laxmi Engineering Works (supra), it is not the value of the goods but the purpose for which the goods are brought or put to use, which is relevant to decide whether the goods were obtained for a commercial purpose or not. The same would be the position, where services are hired or availed by a company. If the business activities of a company cannot be conveniently undertaken without the goods purchased or the services hired or availed by a company, such purchase or hiring/availing as the case may be, would be for a commercial purpose, because the objective behind such purchase of goods or hiring or availing of the services would be to enable the company to earn profits by undertaking and advancing its business activities.
5. If a car or other goods are purchased or the services are hired or availed by a company for the personal use of its directors or employees, the purpose behind such acquisition is not to earn profits or to advance the business activities of the company. The purpose is to make certain facilities and amenities available to the directors and employees of the company as a part of the incentive offered to them by the company, as a reward or remuneration for the work which they are expected to perform for the company. It is not as if a company cannot run its business without providing such facilities and amenities to its directors and employees. It is not necessary for the business of the company, to provide such facilities and amenities to its directors and employees. Providing such facilities and amenities only motivates them to perform their work in an efficient and congenial environment, besides serving as an incentive aimed at eliciting better performance. The company does not earn profit merely by making a car or certain other goods or services available to its directors and employees. Therefore, it would be difficult to say that such goods are purchased or the services are hired or availed by the company for a commercial purpose.
6. The goods and services made available by a company to its directors or employees can be classified into the following three broad categories:-
(a) The goods and services which are obtained for and made available to the directors or employees of the company and are used by them only for their personal purposes, unconnected with the business of the company. For instance, the cars used by the directors and employees of the company for their shopping, outings, recreations, etc. or for commuting to and from the office of the company. Another example can be the air conditioners and furniture provided at the residence of the directors and employees of the company or the telephone or broadband got installed by the company at their residence.
(b) The goods and services made available to the directors or employees of the company and used by them primarily for their personal purposes but incidentally, also for the purposes of the company. For instance, a car used mainly for outings, recreations, personal commuting etc. of the directors and employees or their families, but also for visiting the factory and offices of the company or attending the business meetings.
(c) The goods and services made available by a company to its directors and employees primarily for the purposes of the company and used by them mainly for the purposes of the company but incidentally also for their personal purposes. For instance, a vehicle purchased for being used as a staff car or a delivery van, but sometimes also used for the personal purposes of the directors or employees, unrelated to the business of the company.
7. As far as the goods and services falling in category (a) are concerned, there can be no dispute that since such goods were purchased or the services were hired or availed by the company and made available to its directors and employees for the purposes wholly unrelated to the business activities of the company, such an acquisition cannot be said to be for a commercial purpose. No commercial purpose of the company is achieved by purchasing such goods or hiring or availing such services and then making them available to its directors and employees.
8. In our opinion even if such goods or services are incidentally used by the directors or employees of the company for the purposes of the company, that would not lead to the conclusion that the acquisition of such goods or services was for a commercial purpose. The dominant purpose behind such acquisition being to provide an amenity to the directors or the employees as the case may be, it cannot be said that the company was seeking to make a profit or advance its business by such an acquisition. The use for the purposes of the company being subsidiary and incidental in nature, cannot override the dominant purpose for which they were acquired and made available to the director or the employee of the company. Therefore, the acquisition of goods and services, even if they fall under category (b) above, cannot be said to be for a commercial purpose.
9. As far as the goods or services falling in category (c) are concerned, since the dominant purpose behind such acquisition is to advance and sustain the business activities of the company and the use for the personal purposes of the directors or the employees being incidental, it can be safely said that such an acquisition was for the commercial purposes of the company.
10. In Laxmi Engineering Works (supra), the Hon'ble Supreme Court inter-alia observed as under:-
"...On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit-activity will not be 'consumers' entitled to protection under the Act. It seems to us clear that the intention of Parliament as can be gathered from the definition section is to deny 446 the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit making activity engaged on a large scale. It would thus follow that cases of purchase of goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit %ill all fall outside the scope of the definition. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large scale manufacturing or processing activity carried on for profit. In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the large scale activity carried on for earning profit. "
Relying upon the above-referred observations, it was contended by the learned counsel for the opposite party that the purpose behind enactment of Consumer Protection Act was to provide a speedy remedy to the small consumers and the Act is not intended for the benefit of large business entities such as corporates. We, however, find nothing in the judgment which would indicate that a company will not be a consumer within the meaning of the Act even if the goods are obtained or the services are hired or availed by it, for a purpose which by no means, can be said to be a commercial purpose. The Apex Court itself emphasised that for the exclusion to apply, there has to be a close nexus between the transaction of purchase of goods and the large scale activity, carried for earning profit. Therefore, if a transaction of purchase of goods or hiring or availing of services is not aimed at earning profits or advancing the business activities of the purchaser, such a transaction will not be out of the purview of the Consumer Protection Act.
The learned Advocate for the opposite party also relied upon the decision of the Hon’ble NCDRC in Interfreight Services Pvt . Ltd. Vs. Usha International 1(1995) CPJ 128 (NC), where the Hon’ble NCDRC inter-alia observed that the special remedy before the consumer forums can be invoked only by ordinary consumers, purchasing goods for their private and personal use and consumption and not by business organization buying goods for commercial purposes. There is no quarrel with the legal proposition that the provisions of the Consumer Protection Act are not for the benefit of business organizations buying goods for commercial purposes, but at the same time, such organisations are not ousted from the purview of the said Act, where the goods bought or the services hired or availed by them are not for commercial purposes.
Admittedly, the subject vehicle was sold to Shambhavi Forms Pvt. Ltd. a registered company Mr. Vishal Muskara filed the instant consumer complaint. On perusal of the consumer complaint, we do not find any averment that he subject vehicle was purchased primarily for the personal purpose of the Directors of Shambhavi Forms Pvt. Ltd. Thus, the subject vehicle was purchased for commercial purpose.
In view of the facts and view of the discussion, there is merit in the impugned application. Accordingly, Miscellaneous Application is liable to be allowed.
Hence,
Ordered
That the Miscellaneous Application dated 20.12.2019 is allowed on contest but without any cost.
Thus, MA being No. 661/2019 is disposed of.
As a consequence, consumer complaint is dismissed being not maintainable.
