State Consumer Disputes Redressal Commission
Ankit Jain vs Honda Siel Cars India Ltd. on 16 October, 2012
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI Date of Decision: 16.10.2012 Complaint No. 247/2009 Sh. Ankit Jain, 560, Udyog Vihar, Phase-5, Gurgaon ..Complainant vs 1. 2. 3. Honda Siel Cars India Ltd., Plot No.A-1, Sector-40/41, Surajpur-Kasna Road, Greater Noida Industrial Development Area, Distt. Gautam Budh Nagar, UP 201 301 Also at Ring Road Honda Bas Engineering Pvt. Ltd., Plot No.60-61, Udyog Vihar IV (NH8), Opp. DLF Square, Gurgaon, Haryana 122 001 Now relocated at SCO-313, Sec-29, Near Hotel LemonTree, Gurgaon, Haryana 122 001 Prime Honda, Capital Cars Pvt. Ltd., Patparganj Industrial Complex, Opposite Mother Dairy, New Delhi 110 092 -----Opposite Parties CORAM Salma Noor, Member
V.K.Gupta, Member(Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
V.K.GUPTA, MEMBER(JUDICIAL)
1. This is a complainant under Section 17 of the Consumer Protection Act, 1986.
2. In nutshell, the brief facts are that the complainant had purchased a new Honda Civic car bearing registration No. HR 26 AK 4400 from the show room of Prime Honda, OP No.3 on 19.2.2007 for Rs.10,88,000/-. The purchase was made in the name of Om Real Estate & Consultants in which the complainant was a partner and later on the registration was transferred in the name of the complainant himself. Soon thereafter since March, 2007 the Air Conditioning system started malfunctioning, engine collapsed when it was in first and second gear. The complainant approached the OP-1. It was informed by the representative of OP No.1 & 2 that the problem with the AC has been solved and will not occur again, but in spite of such assurance, the trouble started again in the AC. Again this was brought to the notice of the OP at the Service Centre as the AC Gril temperature was below the prescribed standard, but nothing was done. Again on 20.11.2007 the same trouble started. On 13.7.2008, it was informed by the Manager of the Service Centre that after doing preliminary check of A.C. such as cooling, gas leakage and pressure & grill temperature, there was no problem, therefore, the complainant has taken the car. Many times, on different dates, the problem started in the car, which is a manufacturing defect. The complainant claims for the replacement of defective Honda Civic Car, Rs.5,000/- as compensation and Rs.20,00,000/- as un-liquidated damages.
3. OP-1 has filed the written statement and denied the entire allegations. It was contended that the vehicle in question was purchased by Om Real Estate & Consultants having registered office at Gurgaon and it was registered in the name of Om Real Estate & Consultants. Therefore, the complainant was not the original purchaser of the said vehicle; hence he is not a consumer. OP No.1 is neither necessary nor proper party and no cause of action arose. Since purchase of the vehicle it has run 28,170 kms.. The problem in the A.C. system in question was also denied by the club of engineers.
Whenever where were some minor problems in running the vehicle and when it was brought to the service centre, it was removed and there is no manufacturing defect at all, hence the complainant is not entitled to claim any relief.
4. OP No.2 has filed a separate written statement and denied the allegations. The vehicle in question was purchased by Om Real Estate & Consultants from OP No.3 on 19th Feb., 2007. OP No.2 is one of the dealer of OP-1 company. No cause of action arose against OP No.2 and whenever the car was taken to the Service Centre of OP-2 for removing the minor problem, they were removed immediately.
5. OP No.3 has filed the separate written statement and also denied the entire allegations. OP No.3 is the dealer from whom Om Real Estate & Consultants has purchased the said car and thereafter OP No.3 has no role to pay in the whole sequence of the events. There is no manufacturing defect at all and when ever the vehicle was taken to the service centre for removal of minor defects, they were removed immediately.
6. The complainant has filed the rejoinder by which the fresh allegations raised by the OP in the written statement have been denied.
7. Both the parties have filed affidavit by way of evidence.
8. We have heard Ld. Counsel for both the parties and perused the material on record.
9. At the outset, the Counsel for the OP very vehemently submitted that the complainant cannot be said to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 in as much as the car in question was purchased by Om Real Estate & Consultants for commercial purposes. On the other hand, it has been argued by the Counsel for the Complainant that car in question was not for the commercial purposes.
10. It is an admitted case of both the parties that the car bearing No. HR 26 AK 4400 was purchased on 19.2.2007 in the name of Om Real Estate & Consultants, which is carrying out the business of Real Estate.
11. There is no mention in the complaint any where that the car was purchased for the personal use of the one of the Director or that it is for the livelihood of the Om Real Estate & Consultants, nor any evidence has been filed by the complainant to this effect. The only irresistible conclusion is that the car in question was purchased by Om Real Estate & Consultants. There is no iota of evidence that the car in question was purchased for the personal use of the Director.
12 The term `consumer has been defined in Section 2(1)(d) of the Consumer Protection Act, which reads as under:
2(1)
(d) Consumer means only 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 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 obtain such goods for resale or for any commercial purpose; or
(ii) hires or avails 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 promise, 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 such services for any commercial purposes
13. In Bihar School Examination Board vs. Suresh Prasad Sinha,IV(2009) CPJ34(SC)=VII(2009) SLT 109=AIR 2010 SC 93, the Apex Court has held, as under:
Consumer Definition of According to the definition of `consumer in Section 2(d) of the Act, a person who hires of avails of any services for a consideration, is a consumer. The following category of service-availors will not be consumers:(i) persons who avail any service for any commercial purposes; (ii) persons who avail any free service; (iii) persons who avail any service under any contract of service. A consumer is entitled to file a complaint under the Act if there is any deficiency in service provided or rendered by the service provider.
14. In Monstera Estate Pvt. Ltd. v. Ardee Infrastructure Pvt. Ltd., IV (2010) CPJ 299 (NC) it was held that:
housing Purchase of space for commercial purposes-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. Even if private limited company was treated as `person purchase of space coulod not be for earning its livelihood. Purchase of space for commercial purposes.
15. Again in M/s Sarsolia Motors v. National Insurance Co. Ltd. I(2005) CPJ 27 (NC)=in First Appeal Nos. 159,160,161 of 2004 decided on 3.12.2004, it was held as under:-
In support of his submission, Ld. Counsel Mr. Sharma, referred to the judicial dictionary meaning of the words `commercial purpose which is as under:
The word commercial according to the Oxford Dictionary means viewed as a matter of profit and loss. The word `purpose means `object which is in view or for which is made: `aim `amend.
The word `commercial purposes would, therefore cover an undertaking the object of which is to make a profit out of the undertaking (Municipal Board Unnao v. The State of UP, 1957 All. L.J. 479 at 498).
According to Oxford Dictionary, it means `Viewed as a matter of profit and loss.
The word `commercial is defined in the Concise Oxford Dictionary, New Edition of the 1990, at page 227, the word `commercial is defined as `having profit as a primary aim rather than artistic etc. value (Vide Dena Bank, Ahmednagar v. Prakash Birbhan Katariya, AIR 1994 Bom 343 at
345).
16. It was further held in Laxmi Engineering Works v. PSG Industrial Insititute ,II(1995)CPJ1(SC)=(1995)3SCC583, by Honble Apex Court as under:
The National Commission appears to have been taking a consistent view that where a person purchases goods `with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit, he will not be a `consumer, within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion-the expression `large scale is not a very precise expression Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression `commercial purposes a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a `consumer but a person who buys a typewriter or a car for typing others work, for consideration or plying the car as a `taxi, can be said to be using the a typewriter/car for a commercial purpose. The explanation, however, clarifies that in certain situations, purchase of goods for `commercial purposes would not yet take the purchaser out of the definition of expression of expression `consumer. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of `self employment, such purchaser of goods is yet a `consumer. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a `commercial purpose and he does not cease to be a consumer for the purpose of the Act. The explanation reduces the question, what is a `commercial purpose, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose of which the goods bought are put to. The several words employed in the explanation, viz, `uses them by himself, `exclusively for the purpose of earning his livelihood and `by means of self-employment make the intention of Parliament abundantly clear, that the foods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to em0phasise what we say. A person who person who purchases auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer.
Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer.
A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustration, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by other person, would not be a consumer..
17. Honble National Commission in Rajasthan State Industrial Development & Investment Corporation v. Diksha Enterprises III (2010) CPJ 333(NC) and also in RP No.1129 of 2012, Shri Harnam Singh vs. Shalimar Estate Pvt. Ltd. & Ors. III (2012) CPJ 225(NC) decided on 29th May, 2012 have propounded the same law that if the vehicle or any other thing is purchased for the commercial purposes, such complainant cannot be termed as consumer within the definition of Section 2(1)(d) of the Consumer Protection Act, 1986.
18. As stated earlier, there is no evidence in the complaint that the vehicle in question was for the personal use of the Director of the Company nor any other document to this effect has been filed.
The complainant has not adduced any evidence that the vehicle in question is for the livelihood.
19. A feeble attempt has been made by the Counsel for the complainant that at present the vehicle has been transferred by Om Real Estate & Consultants in the personal name of the complainant; therefore, the complainant is a consumer. We do not agree with the contention of the counsel for the complainant in this regard. Admittedly, the vehicle in question was purchased by Om Real Estate & Consultants, which was carrying on the business of Real Estate and it was any how transferred the vehicle in the name of the complainant after one year. The present complainant steps into the shoes of the previous owner of the vehicle i.e. Om Real Estate & Consultants. Further at the time of purchase of the vehicle by Om Real Estate & Consultants there was a privity of contract between the purchaser and the OP and in case the vehicle was transferred to the complainant after one year or so, there is no privity of contract between the present complainant and the OP.
20. In the light of the aforesaid discussion, we find that the present complaint is not maintainable. The complainant can seek the redressal of their grievance in another Forum.
21. Under these circumstances, the complaint is dismissed.
(Salma Noor) Presiding Member (V.K.Gupta) Member (Judicial) Arya