JUSTICE J.M.MALIK 1. The whole controversy centers around the question of maintainability of this complaint, i.e., “Whether, the Pharos Solutions Private Ltd., is a ‘consumer’, under Section 2(1)(d) (i) and (ii) with the Explanation, appended to it, of the Consumer Protection Act, 1986?, with explanation appended to it. 2. Pharos Solutions Pvt. Ltd., the complainant, purchased a premium segment car for its principal Legal Director, namely, Rajeshwar Tyagi, Advocate. They purchased a Range Rover Evoque car, manufactured in the year 2013. The OPs, namely Tata Motors Ltd., OP1, JLR India, proprietorship of Tata Motors Ltd, OP2 and AMP Motors P. Ltd. , OP3, tendered a Proforma Invoice for complainant to avail financial facility. On 19.04.2013, the car was delivered to the complainant with the year of manufacture. 19.04.2013, being a holiday due to SriRamnavmi, a temporary registration No., assuring regular registration, subsequently, was handed over to the complainant. The car was delivered with the Sale Invoice, insurance cover and copy of Trade Registration Certificate, copies of which have been placed on record as Annexures P-3 to P5. The car was got registered in 2013 and the complainant got the RC during the end of January, 2014. 3. The car insurance was to be renewed. It came to light that the car was manufactured in the year 2012 and not in the year 2013. The complainant protested orally but the OPs avoided the same. Consequently, a protest in writing was lodged by the complainant, vide its email, on 25.03.2014. It is alleged that the OPs had deliberately lied and misled the complainant by giving pricing of a wrong vehicle when, in fact, the OPs intended it otherwise to pass an older and inferior car so as to dupe and defraud the complainant. 4. Consequently, the complainant was even overcharged with Rs.1,03,000/- by the OPs and the amount is illegally charged and recoverable from the OPs. The car delivered, even came to be defective and unstable and complaints in this regard were lodged occasionally and later on, frequently. It is averred that foul and deceit of OPs in selling a wrong car and to make an illegal and wrongful recoveries glares on its face and conviction in this regard is unassailable and irrefutable. Trailing mails exchanged between the parties, marked as Annexure-6, has been placed on record. It is further contended that the car manufactured in the year 2012 and fraudulently given as manufactured in the year 2013, results in the loss of Rs.25.00 lakhs to the complainant, being the difference in price/value of the cars in the consecutive years. The car of the previous year is not acceptable to the complainant and as such, the OPs indulged in unfair trade practice to mislead, dupe and fleece the complainant. The complainants friends and relations also stand duped and cheated by the OPs. Ultimately, this complaint was filed before this Commission, on 14.08.201, with the following prayers :- “i) To accept this as a class action complaint appointing and treating this complainant representing the said class. ii) Opposite parties, in deference to their order acceptance, be directed to supply/deliver car being a Range Rover Evoque of the current year of manufacture 2014 at the all told road price of Rs.60.00 lakhs already recovered from the complainant by the OP#3 and in the alternative to compensate and reimburse the complainant for the purchase of a similar car of the current year manufacture elsewhere. iii) OPs to refund Rs.1,03,000/- the amount illegally recovered and overcharged in excess of the value of invoice Annexure P-3. iv) Complainant further prays for reward of Rs.3.00 crores as damages from all the OPs on account of pain, agony and harassment from the false representations of Opposite Parties. Amount claimed with interest @ 12% p.a., from the date of filing of this complaint till actual payment. v) Opposite Parties be further directed to pay to the State a sum of Rs.25.00 crores as punitive damages for their fraudulent and deceptive representations to sell cars different from the one contracted for and being of lesser value to complainant and their other customers for their illegal gains and ‘UNJUST ENRICHEMENT’. vi) Towards the costs of litigation and related expenses Rs.1,00,000/-. vii) Such other alternate relief, costs and /or damages as the Hon’ble Forum may deem fit and proper in the circumstances of the case”. 5. We have heard the counsel for the complainant at the time of admission of this case. He has invited our attention towards his written note where he has referred to the Economic Times dated 26.08.2014. Its relevant para runs as follows :- “Says cos did not make genuine parts freely available in the market, thereby manipulating prices. The Competition Commission of India (CCI) has imposed a combined penalty of over Rs.2,500 crore on 14 of India’s carmakers, including all the big names, for indulging in unfair practices in the spare parts market, the latest in a series of tough enforcement actions by the newest among India’s regulators. Tata Motors faces the maximum fine of Rs.1,346 crore, followed by Maruti Suzuki Rs.471 crore, Mahindra & Mahindra Rs.292 crore, General Motors Rs.85 crore, Honda Car India Rs.78 crore”. 6. The counsel for the complainant vehemently argued that the Indian car makers include, the OPs who are indulging in unfair trade practice and, therefore, he has claimed more than Rs.3.00 crores for the complainant itself and Rs.25.00 crores for the State. Counsel for the complainant has also cited a number of authorities in support of his case, including the celebrated authority, reported in Dr. J.J. Merchant & Ors. Vs. Shrinath Chaturvedi – (2002) 6 SCC 635, wherein it was held that the consumer fora are competent to entertain cases of any claim and many other authorities but this is not a question of dispute herein with. 7. However, the key question revolves around the controversy, “Whether, the complainant is a ‘consumer’?” In support of his case, the counsel for the complainant has cited few more authorities reported in Lucknow Development Authority, AIR 1994 SC 787, wherein it was held that legislation is a milestone in the history of socio economic legislation and is directed towards achieving public benefit. Right vests in consumer for UTP or defect in goods or deficiency in service. The word “consumer”, is a comprehensive expression. In State of Karnataka Vs. Vishwabharti, AIR 2003 SC 1043, it was held that it is well settled rule of interpretation of statute that the language employed in a section must be given in its ordinary meaning. In Hindustan Motors Vs. A S Wirk, 161 (2009) DLT 88 (DB), it was held that Consumer Act has wider reach. He has also cited National Ch. Vs. UI Insurance, II (2007) CPJ 206 NC. 8. This plea is palliative and does not delve deep to the roots of malady. It must be borne in mind that the complaint has been filed on behalf of Pharos Solutions Pvt. Ltd. The complaint was filed in the year 2014, i.e., after the amendment of the C.P. Act, 1986, dated 15.03.2003. Section 2(1)(d) defines ‘consumer’. Section 2(1)(d) runs as follows :- “(d) ‘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 boys 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 service 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;]” 9. The complainant passed Resolution, dated 02.03.2013, which runs as follows :- “Resolved that Anand Gupta, S/o. Sh. Paras Ram Gupta, a Director of the Company is hereby authorized to take all such steps as may be necessary to initiate or defend any legal action, both civil, criminal, viz., to file and institute suits, complaints, appeals, consumer complaint or any proceedings before any court/ forum, whatsoever, for and on behalf of the company and in this regard to file, sign and institute, petitions, plaints, pleadings, applications, affidavits, etc., or to file written statements, replies etc., in prosecuting and/or defending an action and in the aforesaid regard tender evidence, orally or by affidavit, as may be necessary and expedient and in the best interest of the company or to take execution of decrees in favour of the company and in the said regard to give any receipts or discharge as may be required in satisfaction thereof, for the company and as may be advised by us from time to time or by our solicitor cum attorney Mr.Rajesh Tyagi, Advocate and for effective prosecutions of any of the aforesaid legal proceedings to sign Vakalats in favour of our said counsel or appoint or engage any other lawyer and attorney as suggested and approved by the above named attorney of the company. We hereby ratify the acts of Anand Gupta, the attorney, under these presents. Certified True Copy Sd/- Anand Gupta” Director”. 10. The above said farfetched authorities are not applicable to the present case. In Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. – IV (2010) CPJ 299 (NC), this Commission held, as under :- “Housing – Purchase of space for commercial purpose - There was delay in possession. Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given. Sale deed was not executed. Deficiency in service was alleged. It was held that even if private limited company was treated as ‘person’, purchase of space could not be for earning its livelihood. Purchase of ‘space’ was for commercial purpose”. 11. In Shika Birla Vs. DLF Retailers Developers Ltd., Consumer Complaint No. 183 of 2012, the Hon’ble Apex Court, in Civil Appeal No.5458 of 2013, dated 08.07.2013, upheld the order of this Commission, while observing that the complainant does not fall within the definition of ‘consumer’, under Section 2(1)(d). 12. In Satish Kumar Gajanand Gupta Vs. M/s. Srushti Sangam Enterprises (India) Ltd., & Anr., Consumer Complaint No.296 of 2011, decided by this Commission, on 03.07.2012, the Hon’ble Apex Court, in Civil Appeal No. 6229 of 2012, decided on 14.09.2012, upheld the order of this Commission that the petitioner was not a ‘consumer’ when he intended to purchase some permanent accommodation at Mumbai, for his stay during his business visits, from Delhi, to save on the expenditure incurred for hotels. For that purpose he had booked two flats. 13. In M/s Purusharth Associates Pvt. Ltd. Vs. M/s Uppal Housing Ltd. Plaza & Anr., this Commission in Consumer Complaint No.112 of 2012, on 05.07.2012, observed in paras 11 and 12 of its judgment , as under : “11. Learned counsel for the complainant argued that these flats will be used for the officers of the Company. Learned counsel for the complainant could not deny that those officers would transact the commercial activity. A bare-look on this Resolution clearly goes to show that these flats would be meant for commercial purposes.” 12. The complaint being not maintainable, is therefore, dismissed. Nothing will debar the complainant to seek remedy before the appropriate Forum, as per law. 14. The above-mentioned case (M/s. Purusharth Associates Pvt. Ltd.) was dismissed in limine. Aggrieved by that order the complainant approached the Apex Court. The Hon’ble Supreme Court in Civil Appeal Nos.8990-91/ 2012, vide its order dated 07.01.2013, dismissed the same. 15. In Subhash Motilal Shah (HUF) & Ors. Vs. Malegaon Merchants Co-op. Bank Ltd., the petitioner, ‘HUF’, had opened a current account to be used for commercial purpose. It was held that it was not a ‘consumer’, by this Commission vide its order dated 12.02.2013 and the SLP filed against the said order, was dismissed by the Hon’ble Apex Court in Civil Appeal No. 39200/2013, dated 13.01.2014 16. Now we advert to cases relating to ‘machines’ which were meant for commercial purposes. (1) Civil Appeal No. 30699 of 2013 (Manager Mapsko Builders Pvt. Ltd. & Ors. Vs. Sunil Dahiya) filed against the order of this Commission dated 05.08.2013 (RP No.3479 of 2011), the Hon’ble Apex Court, vide its order dated 07.10.2013, held that the complainant is not a ‘consumer’. (2) Civil Appeal No.2229 of 2014 (M/s. Amla Processing Pvt. Ltd. Vs. M/s. Best Engineering Technologies), filed against the order of this Commission dated 15.04.2013 (FA No.619/2012), the Hon’ble Apex Court, vide its order dated 20.01.2014, held that the complainant is not a ‘consumer’. (3) Civil Appeal No.19843 of 2009, (Cadila Healthcare Ltd. Vs. Anuradha Enterprises) filed against the order of this Commission dated 17.03.2009 (RP No.1999 of 2005), the Hon’ble Apex, once again, held that the complainant is not a ‘consumer’. 17. This Bench in Mohan Branwal (an individual) Vs. Pawan Kumar, Sales Manager, vide order dated 30.08.2013, in Revision Petition No.2917 of 2013, where the complainant purchased one plant with machine for soya bin Bari making unit at chance was held to be for ‘commercial purpose’. The plea of defect or deficiency in service during the warranty period was not accepted. The Apex Court in Special Leave to Appeal (Civil) No.37191 of 2013, upheld the view of this Commission, vide order dated 17.12.2013. 18. In Kalpavruksha Charitable Trust Vs. Toshniwal Brothers (Bombay) Pvt. Ltd., AIR 1999 SC 3356, while placing reliance on Laxmi Engginering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583, the Hon’ble Apex Court was pleased to hold, as under :- “6. It is, therefore, clear that in spite of the commercial activity, whether a person would fall within the definition of “consumer” or not would be a question of fact in every case. The National Commission had already held on the basis of the evidence on record that the appellant was not a “consumer” as the machinery was installed for “commercial purpose”. We have been again referred to various documents, including the “project document”, submitted by the appellant itself to the Bank for a loan to enable it to purchase the machinery in question, but we could not persuade ourselves to take a different view. 9. In the instant case, what is to be considered is whether the appellant was a “consumer”, within the meaning of the Consumer Protection Act, 1986, and whether the goods in question were obtained by him for “resale” or for any “commercial purpose”. It is the case of the appellant that every patient who is referred to the Diagnostic Centre of the appellant and who takes advantage of the CT Scan, etc., has to pay for it and the service rendered by the appellant is not free. It is also the case of the appellant that only ten percent of the patients are provided free service. That being so, the “goods” (“machinery”), which were obtained by the appellant, were being used for “commercial purpose”. [Emphasis Supplied] 19. The car in hand was not purchased exclusively for the purposes of earning livelihood by means of self-employment for the legal Director of the Company. It is not for the livelihood of the Director or personal use of the Director. He has to use the car only for commercial purposes. There is no resolution for purchase of car. In case the companies are allowed to save the court fees, the very purpose of ordinary consumer or as defined by the Act shall stand defeated. Consequently, we find that the present case is not maintainable and the same is, therefore, dismissed in limine. However, there lies no rub for the complainant to seek remedy before any other appropriate forum or civil court, as per law. Further, he may seek help from the celebrated authority reported in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583. |
