State Consumer Disputes Redressal Commission
M/S. Varun Interex Pvt. Ltd. vs King Fisher India Elevators & Air ... on 23 August, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/442/2014 (Arisen out of Order Dated 11/03/2014 in Case No. Complaint Case No. CC/56/2013 of District Kolkata-II(Central)) 1. M/s. Varun Interex Pvt. Ltd. C-3/3, Glliander House, 8, Netaji Subhas Road, P.S. Hare Street, Kolkata-700 001, West Bengal. ...........Appellant(s) Versus 1. King Fisher India Elevators & Air Condition Industries Office at 124, Arabindo Sarani, P.S. Shyampukur, Kolkata-700 006, West Bengal. 2. King Fisher India Elevators & Air Condition Industries Factory at Malaypur, Raghunathpur, Baduria, Pin-743 401, West Bengal. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER For the Appellant: Mr. Amarnath Sanyal, Advocate For the Respondent: Ms.Papiya Chatterjee., Advocate Dated : 23 Aug 2017 Final Order / Judgement Sri Shyamal Gupta, Member
By this Appeal, Order dated 11-03-2014 passed by the Ld. District Forum, Kolkata - II (Central) has been challenged by M/s Varun Interex Pvt. Ltd., Complainant of C.C. No. 56/2013.
Brief facts of the complaint case are that the Complainant placed an order with the OP for the supply and installation of a Hydraulic Elevator and allied works. However, the OP, despite receiving an advance of Rs. 5,60,000/- for this purpose, has not executed the order. Hence, the complaint.
Disputing the claim of the Complainant, it is submitted by the OPs that the former being a Limited company, cannot be treated as a 'consumer' and as such, the complaint is not maintainable. It is submitted that although repeated requests was made to the Complainant to supply sanctioned building plan, tax receipt, registered deed amongst others in order to obtain permission for the purpose of erecting a lift as per provisions of the West Bengal Lifts and Escalators Act, 1955 together with West Bengal Lifts Rules, 1958, the Complainant failed to furnish requisite documents. It is alleged that on the basis of assurance of the Complainant, their men went for doing necessary civil work of the lift. However, due to non-production of requisite documents, four persons of the OP were put behind the bar. As such, they were forced to stop at the work site.
Decision with reasons Heard the Ld. Advocates and perused the material on record, including the citations referred to by both sides.
In view of the objection raised by the Respondents, let me first decide as to whether the Appellant can be considered as a 'consumer'.
This is not the first time that the issue has been racked up by someone. In fact, the issue has been raised before different Courts of Law and as a result, several decisions emerged out of the same. Some of the remarkable decisions in this regard are appended below.
In Laxmi Engineering Works Vs. PSG Industrial Institute (1995) 3 SCC 583 the Hon'ble Apex Court considered the dictionary meaning of the word commerce and explained what is meant by commercial purpose by giving illustrations. Relevant paragraph is 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 purpose 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 for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for commercial purpose would not yet take the purchaser out of the definition 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 purposes 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 purposeto 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 goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an 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 illustrations, 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 another person would not be a consumer".
The Hon'ble Supreme Court in another case pointed out that there is no reason why the meaning of the word 'individual' should be restricted to human being and not to juristic entity [Jogendra Nath v. C.I.T. Calcutta, reported in AIR 1969 SC 1089].
The Hon'ble National Commission in Amtrex Ambience Ltd. v. Alpha Radios, reported in (1996) 1 CPJ 324 (NC), observed that even if any machinery or any other equipment is purchased for commercial purpose and there is manufacturing defect or any defect develops in the articles so purchased during the period of warranty period and the manufacturer has given an undertaking to keep the machinery or equipment in good working condition then "the purchaser will certainly be a consumer u/s 2(1)(d)(ii) in respect of services rendered or to be rendered by the seller for the proper functioning of the machinery/equipment, system during the period of warranty.
Held by the Hon'ble National Commission that machinery, even if purchased for commercial purpose, the purchase would be a 'consumer' qua the service provider under sec. 2(1)(d)(ii) during the period of warranty [Larsen & Toubro Ltd. v. Kishan Kumar, reported in AIR 2009 (NOC) 2801 (NC)].
The Hon'ble High Court, Rajasthan in Jaheed Hussain v. Shah and Lohia Auto Pvt. Ltd., reported in 1991 (1) CPJ 56 observed, "It is well settled that when the expression "commercial purpose" has not been defined in the Act, its common parlance meaning should be given and according to that a commercial purpose is that purpose, the object or aim of which is to make profit. "commercial" encompasses all business activities. IT means occupied with commerce."
My understanding of Sec. 2(1)(d) of the Consumer Protection Act, 1986 is that the question of 'commercial purpose' pertaining to purchase of goods arise only if the same is used for some profit generating activities on a large scale or where there is close and direct link between the purpose of procurement of the goods and the profit making activity. It further appears to me that status of the purchaser cannot be the determining factor to find out whether the same has been purchased for 'commercial purpose' or not; rather, the usage of the goods concerned, to my mind, should evoke due consideration.
Surely, the Appellant did not place order for supply of the Elevator with a view to re-sale the same as unlike the Respondents, the Appellant was not in the business of Elevator. Simple fact of the matter is that the Elevator was intended to be installed at the office of the Appellant to facilitate ease movement of visitors/functionaries of the Appellant Company and installation of the Elevator would not in any way help the Appellant garner profit. Therefore, it would be nothing but a futile exercise to suspect any profit making motto over intended installation of the Elevator in question. In view of this, it appears to me that the Ld. District Forum went terribly wrong in dismissing the complaint on maintainability ground.
Coming to the core issue of alleged deficiency in service over non-installation of the Elevator, it is argued by the Respondents that for want of some vital piece of documents from the Appellant, they could not install the Elevator. However, it is indeed surprising that not a single piece of documentary proof is furnished by them to drive home such point. In this regard, it may not be out of the place to mention here that the Respondent raised similar point in respect of another Appeal bearing No. FA/441/2014 involving same parties. Most intriguing factor of that case is that despite alleged non-supply of similar set of statutory documents, the Respondents went ahead and installed the Elevator at the intended site. Quite naturally, question would be asked how did they install the Elevator without having requisite piece of documents from the side of the Appellant.
Considering the pros and cons of the case in its entirety, I am of opinion that justice can only be met if the Respondents are directed to refund the advance money to the Appellant together with interest.
Appeal, thus, stands allowed.
Hence, O R D E R E D that FA/442/2014 be and the same is allowed on contest against the Respondents. The advance amount of Rs. 5,60,000/- should be refunded to the Appellant by the Respondents within 45 days hence together with simple interest @ 9% p.a. over the aforesaid amount w.e.f. 13-02-2013 till full and final payment is made. The impugned order hereby stands quashed. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER