PRESENT:-
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
Benny Varghese, Hoel ‘Surya’,
Pampa Tourist Home,
Behind Medical Trust Hosptal, : APPELLANT
S.A.Road Ernakulam.
(By Adv.S.Reghukumar)
Vs
The Manager,
H. & R.Johnson (India) Ltd.,
No.40/937, Laxmi, P.T. Usha Road, : RESPONDENTS
Ernakulam – 11
Nalnda Agancies, XL/3397,
T.D.East, Sannidhi Road, Cochin-35
JUDGMENT
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
The above appeal is preferred from the order dated 11/2/2005 passed by the CDRF, Ernakulam in OP No.577/03 which was filed by the appellant herein as complainant against the respondents 1 & 2 as opposite parties claiming a total of Rs.1,10,000/- as compensation for the deficiency in service on the part of the opposite parties in supplying defective flooring tiles. The opposite parties entered appearance and disputed the maintainability of the complaint on the ground that the complainant is not a consumer as defined in the Consumer Protection Act, 1986. They also disputed the deficiency of service alleged by the complainant. The Forum below admitted the case of the complainant regarding deficiency in service on the part of the opposite parties. But the complaint was dismissed on the ground that the complainant will not come under the purview of the Consumer Protection Act, 1986. Aggrieved by the dismissal of the complaint, the present appeal is filed by the complainant in OP No.577/03.
2. When this appeal was taken up for final hearing, there was no representation for the respondents 1 and 2 (opposite parties). The learned counsel for the appellant /complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He canvassed for the position that the service availed of by the complainant will come under the purview of the Consumer Protection Act, as the complainant has not derived any profit directly out of the tiles purchased for furnishing or decorating the complainant’s hotel. He also relied on the decision rendered by the Hon’ble National Commission in M/s.Harsolia Motors /appellant Vs. M/s. National Insurance Company Ltd. and others/ respondents reported in 2005 (1) CPR 1 (NC) and requested for allowing the complainant in OP.No.577/03.
3. The points that arise for consideration are:-
1) Whether the appellant/complainant can be considered as a consumer coming under the purview of the Consumer Protection Act, 1986?.
2) Whether the finding of the Forum below that the complaint in OP.No.577/03 is not maintainable on the ground that the complainant is not a consumer as defined in Section 2 (1) (d) of the Consumer Protection Act, 1986 can be upheld.?
4. Points 1 and 2:-
There is no dispute that the appellant/complainant purchased flooring tiles manufactured by the 1st respondent / 1st opposite party through the 2nd respondent/2nd opposite party dealer and that the aforesaid purchase was effected on 14/3/2003 on consideration of Rs.44,000/-. The case of the complainant was that the tiles supplied to him by the respondents/opposite parties were of bad quality as there were colour variations and size variations. The Forum below on an appreciation of the evidence adduced from both sides came to the conclusion that the tiles supplied were defective and thereby occurred deficiency in service on the part of the respondents/opposite parties.
5. The respondents/opposite parties raised the contention that the tiles were purchased by the appellant/complainant for commercial purpose and so the complainant cannot be considered as a consumer coming under the purview of the Consumer Protection Act , 1986. The Forum below considered the evidence tendered by the complainant as PW1 and also the other materials available on record and came to the conclusion that the complainant is not a consumer as defined in Section 2(1)(d) of the Consumer protection Act because of the fact that the tiles were purchased for furnishing the hotel run by the complainant.
6. The case of the appellant/complainant is that the complainant is not getting any profit directly out of the tiles purchased for furnishing the floor of his business place (hotel) and so the service availed of by the complainant on consideration would not attract the exclusion Clause in Section2 (1) (d) of the Consumer Protection Act, 1986. The learned counsel relied on the decision of the Hon’ble National Commission in the case of M/s.Harsolia Motors Vs. M/s. National Insurance Company Ltd. The principles enunciated in the decision (supra) would make it clear that the complainant could not be excluded from the definition of consumer as defined in Sec.2(1)(d) of the Consumer Protection Act. In the aforesaid decision the insurance policy was taken by a commercial unit for goods purchased or service hired in an activity which was not directly intended ended to generate profit. In such a situation it was held that the insurance policy taken by commercial unit could not be held as one for commercial purpose so as to exclude it from the purview of the Consumer Protection Act. On applying the aforesaid principle followed by the Hon’ble National Commission it can be concluded that the complainant herein who purchased the tiles for furnishing his business place was not intended for deriving any profit directly out of the said tiles. If that he so, the appellant/complainant could not be excluded from the definition of consumer as defined under Section 2 (1) (d) of the Consumer Protection Act. There can be no doubt about the fact that the appellant/complainant is not getting any profit directly from the goods namely, the tiles purchased by him from the opposite parties. So, the purchase of goods from the opposite parties and the consequent or resultant service availed on consideration would come within the ambit of the Consumer Protection Act. Hence this Commission is of the view that the appellant/complainant can be treated as consumer coming under the purview of the Consumer Protection Act. The Forum below has not gone into those aspects of the case as revealed by the decision rendered by the Hon’ble National Commission in the decision cited supra. Ofcourse, the Forum below had no opportunity to go through aforesaid decision reported in 2005 (1) CPR 1 (NC).
7. This is a fit case to be remitted back to the Forum below to consider and fix the quantum of compensation legitimately due to the appellant/complainant. Hence the matter is remanded to the Form below for disposal of the same accordingly. These points are answered accordingly.
In the result the appeal is allowed. The impugned order dated 11/2/2005 passed by CDRF, Ernakulam in OP No.577/03 is set aside, as far as the finding regarding the maintainability of the complaint in OP No.577/03 is concerned. It is made clear that the finding of the Forum below regarding deficiency in service on the part of the opposite parties would stand unaffected and unattended. As far as the present appeal is concerned the parties are directed to suffer their respective costs. They have to appear before the Forum below on 6/8/08.
M.V.VISWANATHAN : JUDICIAL MEMBER
PK.
