This appeal has been filed by the appellant Security Hi-Tech Graphics Pvt. Ltd. against the order dated 05.12.2014 of the State Consumer Disputes Redressal Commission, West Bengal, (in short ‘the State Commission’) passed in S.C.Case No.CC/216/2014.

2.      Brief facts of the case are that on 12.04.2013, the appellant/complainant approached the respondents for conducting tour of Kashmir through e-mail.  The appellant/complainant approached the opposite party to book for 22 heads for the period from 21.5.2013 to 02.06.2013.  The booking included flight tickets, hotels at the desired venues and for cars and luggage vans for transportation within the State of Jammu and Kashmir.  The respondents gave total estimate cost for the tour as Rs.23,94,750/-.  On 16.04.2013, the appellant/complainant deposited an amount of Rs.7,00,000/- by a cheque bearing No.501651 dated 16.04.2013 drawn on Axis Bank against proper receipt.  On 22.04.2013, the respondents issued tour chart.  On 04.05.2013, the appellant/complainant informed the respondents through e-mail that due to some compelling situation i.e. sudden illness of mother of one of the directors, they are unable to go for the tour and asked for refund of deposited amount.  The respondents intimated that they will intimate about refund accordingly.  But the respondents did not take any steps for refunding the deposited amount.  The appellant made repeated requests for refund but to no avail.  On 26.09.2013 having no other alternative, the appellant sent one legal notice to the respondents and further requested them for refund of the deposited amount of Rs.7,00,000/-.  On 09.10.2013, the respondents for the first time replied and intimated that since cancellation was done 11 days prior to the tour, the entire amount of Rs.7,00,000/- will be considered as cancellation charges.  In the year 2014, aggrieved by the action of the respondents, the petitioner ultimately filed consumer complaint bearing SC Case No.CC/216/2014 before State Commission. 

3.      The complaint was resisted by the opposite parties/respondents by filing written statement.  The learned State Commission finally dismissed the complaint vide its order dated 05.12.2014 as under:-

“Though the main thrust of the OPs has been on the point of territorial and pecuniary jurisdiction, it is also seen in the light of its validity in the eye of the law concerned i.e. the Consumer Protection Act, 1986.  It has been held by the Hon’ble National Commission in a decision reported in 2012 (2) CPR 68 (NC) that, “Respondent is a private limited company and the commercial activities carried out by it cannot be for its earning livelihood by means of self-employment.  Company has to act through somebody and the question of livelihood and self-employment under these circumstances would not arise.  Company has judicious identity and it can be sued through a person.  Company does the commercial activities for its shareholders.  Question of earning livelihood by means of self-employment would not arise.”

        In this case also the Complainant is a private limited company. So, the complaint filed by it does not fit into the bill to come under the purview of the Consumer Protection Act, 1986.  It is not maintainable, since it is not a ‘consumer’ as strictly defined in the act. As such, the other matters involved regarding territorial and pecuniary jurisdiction is not further dealt with. Complaint, thus, stands dismissed.

4.      Hence the present appeal. 

5.      Learned counsel for the appellant also filed application for deletion of respondent Nos.2 & 3 and therefore, the learned counsel for the appellant and the learned counsel for the respondent No.1 were heard.

6.      Learned counsel for the appellant states that the State Commission has dismissed the complaint on the ground that the complainant is not a consumer within the definition of the ‘consumer’ as given in the Consumer Protection Act 1986 as the complainant is a private limited company which cannot earn its livelihood by means of self-employment.  The learned counsel argued that the complaint filed has nothing to do with any commercial activity of the complainant as it was only a tour worked out for officers of the Company and the prayer was to get refund of the amount paid to opposite parties/Tour Company.  To support his claim, the learned counsel referred to the decision of the Hon’ble Supreme Court in Karnataka Power Transmission Corporation and Anr. Vs. Ashok Iron Works Private Limited, (2009) 3 SCC 240, wherein the following has been held:

“21. Section 2(1)(m), is beyond all questions, an interpretation clause, and must have been intended by the legislature to be taken into account in construing the expression `person' as it occurs in Section 2(1)(d). While defining `person' in Section 2(1)(m), the legislature never intended to exclude a juristic person like company. As a matter of fact, the four categories by way of enumeration mentioned therein is indicative, categories (i), (ii) & (iv) being unincorporate and Category (iii) corporate, of its intention to include body corporate as well as body un-incorporate. The definition of `person' in Section 2(1)(m) is inclusive and not exhaustive. It does not appear to us to admit of any doubt that  11company is a person within the meaning of Section 2(1)(d) read with Section 2(1)(m) and we hold accordingly.”

7.      From the above decision of the Hon’ble Supreme Court, it is clear that an entity cannot be excluded from the purview of being a “consumer” on the ground that it is a company.  Thus, the complainant has to be considered as a consumer.

8.      It was further stated by the learned counsel for the appellant that the State Commission had pecuniary jurisdiction because the tour package was for Rs.23,94,750/-.  This was asserted in the background of the decision of the larger bench of this Commission in Consumer Case No.97 of 2016, Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC).

9.      On the other hand learned counsel for respondent No.1 stated that the State Commission has relied on the judgment of this Commission in RP No.3517 of 2009, M/s. MCS Computer Services (P) Ltd. Vs. M/s. Allena, decided on 14.03.2012 in observing that private limited Company cannot be a consumer.  The case cannot proceed under the Consumer Protection Act 1986 and the complainant may seek remedy in a civil court. The learned counsel read out the following portion of the aforementioned judgment of this Commission:-

 “Respondent is a private limited company and the commercial activities carried out by it cannot be for its earning livelihood by means of self-employment.  Company has to act through somebody and the question of livelihood and self-employment under these circumstances would not arise.  Company has judicious identity and it can be sued through a person.  Company does the commercial activities for its shareholders.  Question of earning livelihood by means of self-employment would not arise.”

10.    The learned counsel further stated that the State Commission did not have the pecuniary jurisdiction to decide the present complaint as the amount asked for refund was only for Rs.7,00,000/- and even compensation is included it will not cross Rs.20,00,000/-

11.    I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and have examined the material on record.  First of all, it is seen that the complaint has been filed for the refund of amount paid to the opposite parties/Tour Company for organising a tour for the officers of the appellant Company.  From the definition of “person” given in the Consumer Protection Act, 1986  in Section 2(1)(m), a firm has been treated as a person and therefore, a ‘consumer’.  Though the Company is not directly listed as a person in this Section, but the Hon’ble Supreme Court in Karnataka Power Transmission Corporation and Anr. Vs. Ashok Iron Works Private Limited (supra) has clearly held that a Company is also to be included in the definition of “person” and thereby a Company will also be considered as ‘consumer’.  Thus, it is clear that the complainant will be considered as consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 subject to its full applicability.  It is now to be examined whether the transaction in question for which the complaint has been filed would be considered for commercial purpose or not.  Hon’ble Supreme Court in Laxmi Engineering Works Vs. PSG industrial Institute, (1995) 3 SCC 583 has held that the issue of commercial purpose has to be seen in the facts and circumstances of each case.  Moreover, it cannot be said that all the activities of a company would always be of commercial nature.  In the context of the present case, I do not see any difference in booking of tour package by any individual, a firm, a cooperative society or a company for its relatives or employees. Hence, this booking of a tour package for its officers cannot be said to be related to company’s commercial activities in any way.  Accordingly, I am of the view that no occasion arises in the present case for the applicability of explanation attached to Section 2(1)(d) relating to earning livelihood by means of self-employment.  Thus, I conclude that the complainant is a ‘consumer’ in the present case.

12.    Now coming to the question of pecuniary jurisdiction, it is important to note that the complaint was filed with the prayer of refund of Rs.7,00,000/- along with compensation of Rs.4,00,000/- and cost of litigation of Rs.1,00,000/-.  Thus, the total prayer was for Rs.12,00,000/- only.  When the State Commission decided the case vide its order dated 05.12.2014, the judgment of the larger bench in Consumer Case No.97 of 2016, Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC) was not there at that time and prima facie the State Commission should not have accepted the complaint.

13.    This Commission has decided the issue of pecuniary jurisdiction in the matter of Ambrish Kumar Shukla & Ors. (supra).  The same judgment in para 15 while giving the gist of answers to various questions, mentions the following:-

“15. Issue No. iii

        The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum.”

14.    From the above it is clear that the consideration paid at the time of hiring of the service of the opposite party may also decide the pecuniary jurisdiction in certain cases, particularly in cases of refund where no further amount is to be paid. In the present case only Rs.7,00,000/- has been paid and therefore, looking from this angle the State Commission did not have the pecuniary jurisdiction to decide the present complaint.  The value of consideration as per the definition of “consumer” given under Section 2(1)(d) of the Consumer Protection Act, 1986  includes “partly paid and partly promised”.  Thus, in case of refund of the amount paid to the opposite party, there would only be the element of “partly paid” and the element of “promised to be paid” would be missing.  Thus, the consideration in a case of refund would only mean the amount paid and therefore, consideration paid in the above quoted observation in the decision in Ambrish Kumar Shukla & Ors. (supra) could be only the amount paid by the complainant to the opposite party and this shall decide the pecuniary jurisdiction of the consumer forum.  Obviously, there is difference in the cases where parties want to go ahead and conclude the sale of goods or availment of services and where one party is only seeking refund and thereby clearly deciding for non-execution of the agreement. Thus, the value of service in a complaint case seeking refund of the paid amount would be limited to the amount paid whose refund has been sought.

15.    Based on the above consideration, it is clear that in the present case even if the total amount of Rs.7,00,000/- along with compensation of Rs.4,00,000/- is taken into account, the jurisdiction of the State Commission is not justified. 

16.    As the State Commission has considered the complaint on merit without considering the pecuniary and territorial jurisdiction, based on the above examination, the order dated 05.12.2014 of the State Commission is set aside and it is held that the complainant in the present case is a consumer as defined in the consumer Protection Act, 1986 and he is entitled to file a complaint.  The complainant is granted permission to file the complaint before the District Forum, having territorial jurisdiction in the matter.  It is clarified that the issue of pecuniary jurisdiction and ‘complainant being a ‘consumer’ shall not be considered again by the fora below.  The time taken  in the State Commission as well as in this Commission shall not be counted towards limitation.  First Appeal No.79 of 2015 stands accordingly disposed off.