KERALASTATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM CC.NO.5/09 JUDGMENT DATED : 9/6/09 PRESENT:- SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRA MOHAN NAIR : MEMBER 1. Customer Line Private Ltd., having its registered office at 2A Link Hieights, Panampilly Nagar, Kochi 682036 and operating from 2nd Floor ChoiceTowers, S.A.Road, kochi 682016 represented by its Managing Directo, Rajesh Venugopal. : COMPLAINANTS 2. Rajesh Venugopal, 37 years s/o.Late K.P.Venugopal, residing at 2A LinkHeights, Panampilly Nagar, Kochi 682036. 3. Vijayalakshmy Venugopal, 62 years w/o. Late K.P.Venugopal, residing at 2A LinkHeights, Panampilly Nagar, Kochi 682036. Vs 1. Tata Communications Ltd (formerly VSNL Ltd.,) having its office at LVSB, Kashinadh Dhuru Marg, : OPPOSITE PARTIES Prabhadevi, Mumbai 400 028 represented by its Managing Director, Srinath Narasimhan. (By Adv.V.K.Mohankumar , (Menon & Pai) 2. Axcenta ITES Private Ltd, 127, SC Bose Road, Jawahar Nagar, Kochi 682020 represented by its Managing Director, Philip George. (By Adv.V.K.Mohankumar & Bhuvanendran Nair) JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The above complaint is filed claiming a total compensation of Rs.47,28,000/- under various heads with interest and cost. The case of the complainants is that the opposite parties failed to provide proper services to the complainants as agreed by the opposite parties and thereby the complainant suffered mental agony, inconvenience and financial loss. The 1st complainant is the Customer Line Pvt. Ltd. a Private Limited Company incorporated under the provisions of the Companies Act and complainants 2 and 3 are the Directors of the 1st complainant company. 2. When this complaint came up for admission, this State Commission was pleased to issue notice to the opposite parties 1 and 2 and thereby the opposite parties entered appearance through their counsel Adv.K.Mohankumar for the 1st opposite party and Adv.Satheesh George for the 2nd opposite party. The opposite parties argued for the position that the complaint herein is not maintainable as the complainants are not consumers coming under the purview of the Consumer Protection Act, 1986. Thus the opposite parties requested for dismissal of the complaint as not maintainable in law. They also contended that this State Commission has no jurisdiction to entertain the dispute involved in the complaint as the complainants are not consumers as defined under Sec.2 (1) (d) of the Consumer Protection Act, 1986. 3. The 2nd complainant appeared in person and submitted his arguments on his own behalf and on behalf of the 1st complainant company and the 3rd complainant Director of the 1st complainant company. It is submitted that the complainants 2 and 3 as Directors have been running the 1st complainant company for their livelihood by means of self-employment and that thereby they are be treated as consumers coming under the purview of the Consumer Protection Act, 1986. 4. The preliminary points that are to be considered at this admission stage of the complaint in CC 5/09 are as follows: 1) Whether the complainants can be considered as consumers as defined under Sec. 2 (1) (d) of the Consumer Protection Act, 1986? 2) Whether this State Commission has got the jurisdiction to entertain the disputes involved in the complaint in CC 5/09? 5. Points 1 and 2: There is no dispute that the 1st complainant is the Customer Line Pvt. Ltd. , a company incorporated under the provisions of the Companies Act and that the complainants 2 and 3 are the Directors of the 1st complainant Private Ltd., Company. Admittedly the 1st complainant company is running business of providing call center and business process outsourcing services to various domestic and international clints. It is also admitted fact that for running the said business the complainant company availed the services of the opposite parties 1 and 2. The very averments in the complaint would make it clear that the 1st complainant company is doing commercial business/transactions and for running the said business the complainants 2 and 3 are functioning as Managing Director and Director respectively. It is the case of the complainants 2 and 3 that they are running the business of the 1st complainant company for their livelihood by means of self-employment. But there is no document in support of the case of the complainants 2 and 3 that they are doing the business for their livelihood by means of self employment. On the other hand, the averments in paragraph 2 of the complaint would make it abundantly clear that the 2nd complainant is the Managing Director of the 1st complainant company and during the year 2003 the 1st complainant company have taken other persons as it is Directors. It is categorically admitted that in July 2003 the persons such as M/s.G.A.Menon, S.M.Guptha, Sajan Pillai, Joseph Nalkara, Arun Narayanan and Murali Gopalan were joined as Directors of the Company by investing their funds. Thereby it is admitted by the complainants that there are other Directors for the 1st complainant Customer Line Pvt. Ltd., If that be the position, it is too much to say that the 1st complainant company is being run by the complainants 2 and 3 for their livelihood by means of self-employment. It can be understood that the 1st complainant company is carrying out its various business and activities with so many other Directors including the 3rd complainant and that the 2nd complainant is the Managing Director of the 1st complainant Private Ltd., Company. It can be seen that the business is being run by the 1st complainant Private Ltd. Company assisted by his Directors including the Managing Director. It can very safely be concluded that the 1st complainant company is doing commercial transactions and that the complainants availed services of the opposite parties for commercial purposes. The case of the complainants that the business is being run for their livelihood by means of self-employment cannot be believed or accepted. Admitted facts would show other-wise. 6. The terms “consumer” is defined in Sec.2 (1) (d) of the Consumer Protection Act, 1986. It reads as follows: “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 pair 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 availed or 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 aforesaid definition given for consumer would make it clear that services availed by a person for commercial purpose would not come under the purview of the Consumer Protection Act, 1986 and that such a person cannot be considered as a consumer within the ambit of the Consumer Protection Act, 1986. The explanation to Sec.2 (1) (d) is an exemption which says that the goods purchased or the services availed for the purpose of earning livelihood by means of self employment could be brought under the said definition. Then the said purchase of goods or services availed by the person is to be exempted and thereby such person would come within the purview of the Consumer Protection Act and that such a person can be considered as a consumer. But in the present case the complainants 2 and 3 are only the Directors of the 1st complainant company and that the business is being carried out by the 1st complainant company as a commercial company doing business for the benefit of its Directors including the complainants 2 and 3. There is nothing on record to show that all the Directors of the company are depending on the income from the business for their livelihood by means of self-employment. The complainants have no such case also. 7. There is no dispute that the 1st complainant company availed the services of the opposite parties 1 and 2 for doing the business of running call center and business process out sourcing services. So the 1st complainant company availed the services of the opposite parties 1 and 2 for commercial purpose. There is no case that the 1st complainant Private Limited Company is running the business exclusively for livelihood by means of self-employment. There is also no case that the Directors or beneficiaries of the 1st complainant company are earning their livelihood by means of self-employment. Thus, in all respects it can very safely be concluded that the complainants herein are not consumers coming within the ambit of the definition consumer as defined in Sec.2 (1) (d) of the Consumer Protection Act, 1986. Therefore, this State Commission has no jurisdiction to entertain the disputes involved in the complaint in CC 5/09. If that be the position, the present complaint cannot be admitted to the file of this State Commission. Hence these points are found against the complainants in CC 5/09. In the result the complaint in CC 5/09 is dismissed as not maintainable. There will not be any order as to costs. M.V.VISWANATHAN : JUDICIAL MEMBER S..CHANDRA MOHAN NAIR : MEMBER Pk.
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