Date of Filing – 13.01.2010

Date of Final Hearing – 13.01.2017

PER HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a company incorporated under the provisions of the Companies Act, 1956 and its Director on the allegation of deficiency in services against by Skoda Auto a.s. through the Jia Auto Sales Pvt. Ltd. with a prayer for compensation of Rs.84,53,239/- along with interest @ 18% p.a. to be calculated till the date of payment.

          Succinctly put, Complainants’ case is that on 08.09.2008 the Complainant no.1 duly represented by the Complainant no.2 booked a Skoda Superb 2.5 V 6 Motor vehicle with standard fittings premium diesel car at a price of Rs.19,90,000/- through the OP nos. 19 & 22.  On that date, an amount of Rs.10,00,000/- was paid through a cheque and the car was delivered on that date.  The Complainants state that the OP nos. 19 & 22 agreed that all the original papers, starter kit and other accessories will be despatched within two days but to the utter dismay, those papers till date has not been delivered.  On 23.10.2008 the OP no.19 had issued a tax invoice in favour of Complainant no.1 for a value of Rs.21,08,825/- after discount and including Registration and Road Tax, Insurance Premium, Fancy Charge, Teflon Coating etc. and instead of Rs.19,90,000/-, the OP no.18 had asked the Complainant to pay a sum of Rs.20,85,735/- which was subsequently paid.  On 25.11.2008 pursuant to the Complainants’ application for auto loan, the Pro-Respondent no.25 i.e. HDFC Bank Ltd. disbursed a cheque for Rs.9,50,000/- with a condition that it shall be repaid by 36 equal instalments of Rs.31,552/- each commenced on and from 07.12.2008 till 07.11.2011.  The Complainants also state that Complainant no.2 was using the said car after obtaining the delivery thereof but after a mere run of 8000 Kms. It was noticed that tyre of the car had developed a swelling by the side for which the same had to be required to be replaced.  The Complainants had approached the OP no.19 but the Complainants had to purchase a new tyre at a price of Rs.6,800/-.  In the month of July, 2009 Complainant no.2 was on a visit at Visakhapattanam and in transit the car had suddenly occurred a snag in the gear box chamber.  The Complainants could not rectify the defect and as such it was taken to Bhubaneshwar Skoda Service Centre where the car was retained for more than 25 days.  Subsequently, the car was placed before OP nos. 19 & 23 for checking herein and for that purpose, Complainants had to incur expenses of Rs.35,000/- although the car was under scheme of warranty.  On 16.10.2009 while the Complainants along with their family members was driving from Kolkata to Jamshedpur, suddenly thereof a near fatal situation had occurred when the engine of the running care went off and with it the power steering of the car got locked along with the power breaks.  Over the matter, the Complainants sent e-mails on 22.10.2009 and 27.10.2009 but did not receive any satisfactory answer.  Ultimately, the said car was delivered to the Complainants on 03.12.2009 but on 22.12.2009 the Complainants had sent back the car to the Respondents due to various problems incurred while using the car.  The Complainants submit that there has been gross negligence and/or dereliction of duty and service on the part of the OPs and as such the instant complaint has been filed with prayer for relief as indicated above.

          The OP nos. 1, 2 and 9 to 18 by filing a joint written version have raised a preliminary issue challenging the maintainability of the proceeding on the ground that the Complainants do not fall within the category of ‘consumer’ as defined in Section 2(1)(d) of the Act.  The OPs specific case is that there was no deficiency on services on the part of them and as such the complaint should be dismissed. 

          OP nos. 19 to 21 and 23 by filing a separate written version have also stated that the complaint is not maintainable as the Complainants are not ‘consumer’ under the Consumer Protection Act.  The specific case of those OPs is that the OP no.19 had done the necessary repairs and replacement under warranty and after necessary repairs, the car was delivered to the Complainants on 04.12.2009 and as such the complaint should be dismissed.

          The Pro-Respondent no.25 in their written version has stated that the Complainants have no grievance against them and as such the complaint is liable to be dismissed against them.

          On the basis of contention of the parties, the following points are framed for adjudication;-

1. Is the complaint maintainable? 
2. Are the Complainants ‘consumer’ as defined in Section 2(1)(d) of the Act?
3. Is there any deficiency in services on the part of the OP?
4. Are the Complainants entitled to get the relief/reliefs, as prayed for?

   In order to prove the case, the parties led evidence through affidavit and documents.  However, at the time of final hearing, only Complainants and Pro-OP no.25 participated and rest OPs did not contest.  However, when the evidence of the parties is over and there are evidence on record, we shall proceed to dispose of the complaint on merit.

                                            DECISION

Point nos.1 & 2:-  

Both the points are taken up together as they are interlinked with each other.

The maintainability of proceeding has been seriously challenged by the OPs.  The Complainants in their petition of complaint have averred that the Complainant no.1 is a company incorporated under the provision of Companies Act, 1956 and used to carry on business in the nature of export and import of iron ores.  The Complainant no.2 is the Director of the Complainant no.1’s Company.

Now, for appreciation of the matter whether the Complainants falls within the category of ‘consumer’ or not, it would be worthwhile to reproduce the definition of ‘Consumer’ as contained in Section 2(1)(d) of the Act, which is set out herein below:

 “Consumer means any person who –

1. 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 then 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
2. 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 purpose”.

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”.

The foregoing provision provides that the ‘consumer’ is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of any services for any commercial purposes.  The explanation to the Section creates an exception and states that Clause ‘Commercial Purpose’ does not include used by a person of goods bought and used by him and services available by him exclusively for the purposes of earning his livelihood by means of self-employment.

In his reply against the questionnaire set forth by the OPs, Complainant no.2 has stated that he used the car for commutation to and from his office being one of the Directors of the Company.  In another question, he has admitted that the company has done profit in the last three financial years.  He has also admitted that besides the said car, there are several other cars in the company and three of those cars including the present one were being used by all the three Directors of the company including himself.  Therefore, it is quite evident that the Complainant no.2 being one of the Directors of Complainant no.1 company using the subject vehicle for the purpose of business use only, the vehicle was purchased from the show room of Jia Auto Sales Pvt. Ltd. (OP no.19) and therefore, the Complainant cannot be categorised as a ‘consumer’ within the meaning of Section 2(1)(d) of the Act.

In fact, Complainant no.1 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 some body 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 share holders.  Question of earning livelihood by means of self-employment would not arise.

In a decision reported in I (2005) CPJ 27 (NC) (M/s. Harsolia Motors – vs. – Ms. National Insurance Company Ltd.) the Hon’ble National Consumer Commission, has observed that if the goods are purchased for commercial purpose, then such consumer would be excluded from the coverage of the Act.

What is a ‘commercial purpose’, to a question of fact to be decided in the facts of each case.  In the case beforehand, it quite apparent that the Complainant no.2 being one of the Directors of Complainant no.1 Company was using the subject vehicle for official purpose and as such the Complainants cannot be considered as ‘consumer’ as defined in Section 2(1)(d) of the Act.  Resultantly, the instant complaint is not maintainable before a Consumer Forum.

Accordingly, both the Points are decided in the negative and against the Complainants.

Point Nos. 3 & 4:-

          In view of foregoing discussions with regard to Point nos. 1 & 2 when it becomes quite clear that the Complainants are not ‘consumer’ as defined in Section 2(1)(d) of the Act and a consumer complaint by a company is not maintainable.  Therefore, it would be an idle exercise to discuss on the point of alleged deficiency as levelled by the Complainants.

          Accordingly, the complaint is liable to be dismissed.  Both the points are disposed of accordingly.

          In the result, complaint fails.  It is, accordingly

                                              ORDERED

          That the complaint is dismissed on contest being not maintainable.  However, there will be no order as to costs.

          This order of dismissal will not debar the Complainants to seek redressal of their grievances before the appropriate Court/Forum in accordance with the law and in doing so, the Complainants may seek assistance of the observations made by the Hon’ble Supreme Court in the case of Laxmi Engineering Works – Vs. – P.S.G. Industrial Institute reported in (1995) 3 SCC 583 to overcome the hurdle law of limitation.