CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.402/2006
M/S B. JAIN X-PORTS INDIA
1922, 10TH STREET, CHUNA MANDI,
PAHARGANJ, DELHI
(THROUGH SH. KULDEEP JAIN,
PARTNER/AUTHORISED PERSON)
…………. COMPLAINANT
Vs.
- MR. HANS MICHAEL HUBER, MANAGING DIRECTOR & CEO
DAIMLER CHRYSLER INDIA PRIVATE LTD.,
SECTOR 15-A, CHIKHALI, PIMPRI,
PUNE-411018, MAHARASHTRA
- M/S T&T MOTORS LTD.,
(DEALER OF MERCEDES BENZ PASSENGER CARS)
212 OKHLA INDUSTRIAL ESTATE, PHASE III,
NEW DELHI-110020
(THROUGH ITS AUTHORISED PERSON)
…………..RESPONDENTS
Date of Order: 05.02.2016
O R D E R
A.S. Yadav – President
The main point for consideration is whether complainant is a ‘consumer’. Admittedly complainant is a partnership firm and is dealing in the business of printing of homeopathic books. Complainant purchased Mercedes Benz car on 25.10.2003 for a sum of Rs.25,28,733/- from OP. The car developed certain problems which are detailed in the complaint.
OP in the reply took the plea that since the car was purchased by a partnership firm hence complainant is not a consumer.
We have carefully gone through written submissions of the parties and the record.
Admittedly the car in question has been purchased by a partnership firm engaged in commercial activity. The resources of the partnership firm were used for purchasing of the car. Partnership is a firm for commercial purposes. It does not matter even if car is used by a partner of the firm.
It is useful to refer to case of Pharos Solutions Pvt. Ltd. Vs Tata Motors Ltd. & Ors., IV(2014) CPJ 525. In that case, the company purchased a car for use of its Principal Director, it was held that the car has been purchased for commercial purposes by a company and does not come within the meaning of consumer. It is useful to refer to para(s) 12, 13 and 14 of aforesaid judgment which are reproduced as under:-
- In Satish Kumar Gajanand Gupta V. M/s. Srushti Sangam Enterprises (India) Ltd. & Anr., III (2012) CPJ 264 (NC) – Consumer Complaint No.296 of 2011, decided by this Commission, on 3.7.2012, the Hon’ble Apex Court, in Civil Appeal No.6229 of 2012, decided on 14.9.2012, 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.
- In M/s Purusharth Associates Pvt. Ltd. V. M/s. Uppal Housing Ltd. Plaza & Anr., III (2012) CPJ 500 (NC), this Commission in Consumer Complaint No.112 of 2012, on 5.7.2012, 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.
- The above-mentioned case (M/s. Purusharth Associates Pvt. Ltd.) was dismissed in limine. Aggrieved by that order the complaint approached the Apex Court. The Hon’ble Supreme Court in Civil Appeal Nos. 8990-91 /2012, vide its order dated 7.1.2013, dismissed the same.
It is also useful to refer to case of General Motors India Pvt. Ltd. – Appellant Vs G.S. Fertilizers (P) Ltd. & Anr. – Respondents - wherein para -9, Hon’ble National Commission held as under:-
“Para-9 - We have heard learned Counsel for both parties and have gone through the evidence on record. We note that in his complaint before the State Commission the Respondent-Complainant had clearly stated that the vehicle was purchased for the use of its Managing Director. We agree with Appellants’ contention that this clearly amounts to its purchase for a ‘commercial purpose’ since the Managing Director of a private limited company would obviously not use this vehicle for self-employment to earn his livelihood but for ‘commercial purposes’ as a perk of his office. Counsel for the Respondent-Complainant has sought to challenge this contention by pointing out that since the present case pertains to 1999 and the amendment referred to was made only in 2002, it was not applicable in the instant case. We are unable to agree with this contention as well because the 2002 Amendment to the Act pertains to Section 2(1)(d)(ii) of the Act relating to hiring or availing of services for a consideration and not to section 2(1)(d)(i) of the Act relating inter alia to purchase of goods has been well settled by the Hon’ble Supreme Court as far back as in 1995 in its judgment in Laxmi Engineering Works V. P.S.G. Industrial Institute, II(1995) CPJ 1(SC)=1995(3)SCC583, wherein the Hon’ble Apex Court has ruled as follows:-
….. On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit-making activity will not be ‘consumers’ entitled to protection under the Act. It seems to us clear that the intention of Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit-making activity engaged on a large scale. It would thus follow that cases of purchase of goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit will all fall outside the scope of the definition. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large scale manufacturing or processing activity carried on for profit. In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the large-scale activity carried on for earning profit.”
Reference is also placed on the case of Interfreight Services Pvt. Ltd. Vs Usha International & Anr. I(1995) CPJ 128 (NC) claiming that there was no nexus between the ‘Commercial Activity carried on by Complaint’ and ‘use of fan’ held that the distinction that is sought to be made does not appeal to them. Hon’ble Commission further held as follows “It appears to us to be perfectly clear that the intention of parliament in excluding persons purchasing goods for commercial purpose from the definition of the expression ‘consumer’ is to impose a restriction that the special remedy before the Consumer Forum can be invoked only by ordinary consumers purchasing goods for their private and personal use and consumption and not business organizations buying goods for commercial purpose.”
Also further Hon’ble State Commission West Bengal in Mansukh & CC. (Overseas) Vs Maruti Udyog Ltd, & Ors., III(201) CPJ 246 upheld dismissal of complaint filed by a partnership firm holding that use of a car by individual partners amounts to use for commercial purpose and hence such a complaint is not maintainable. Hon’ble Commission observed as follows:-
“It may not be overlooked that partners use the car to increase their mobility and to accelerate that growth of the business activities of the partnership firm. Accordingly it cannot be said that the car was not in any way related to business activity of the partnership firm.”
The complaint is not maintainable hence the same is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
