State Consumer Disputes Redressal Commission
Vinod Kumar Jain vs L & T Finance Ltd. Through Adhikrit ... on 16 March, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2016/53
Instituted on : 03.10.2016
Vinod Kumar Jain, S/o Shri Hanuman Prasad Jain,
R/o : A-4 Romensque Vila,
Near Suneeta Park, Labhandi,
Raipur (C.G.) ... Complainant.
Vs.
1. L & T Finance Limited,
Through : Authorized representative,
City 2 Building, Plot No.177, CST Road,
Vidya Nagri, Nagri Marg, Kalina,
Santakruz, East Mumbai - 400098
2. L & T. Finance Limited,
Through Authorized Representative,
Shop No.307, 2B, Third Floor,
Malind Manore, Ravindranath Tagore Marg,
South Tukoganj, Chhoti Gwal,
Indore (M.P.)
3. L & T Finance Limited,
Through : Authorized Representative,
Simran Tower, First Floor, Near Life Insurance
Corporation Office, Pandri,
Raipur (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Shri Anurag Tiwari, Advocate for the complainant.
Shri Rakesh Puri, Advocate for the OPs.
ORDER
Dated : 16/03/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs to direct the // 2 // OPs to pay total compensation of Rs.33,86,000/- to the complainant, which includes sale amount Rs.26,50,000/-, compensation @ 2% per month from 31.08.2015 till date of filing of the complaint i.e. Rs.6,36,000/- and Rs.1,00,000/- towards travelling expenses for going to Odisha.
2. Briefly stated the facts of the complaint of the complainant are that Gujarat Apolo Hot Mix Plant DG Set Model No.A.N. P 1500 Year 2002 Serial No.2 R J 03399 was financed by the OPs to Atharva Infrastructure, Raipur. The above plant was mortgaged with the OPs in lieu of finance. On being default made by Atharva Infrastructrue on making payment, the OPs took the Plant DG Set in their possession and the same was kept in Borigumma Yard Odisha. The above Plant DG Set was sold by the OPs to the complainant on sale price of Rs.26,50,000. The amount of Rs.20,00,000/- was paid by the complainant to the OPs through UTR No .SBNR 12015083119387129 and a sum of Rs.6,50,000/- was paid through SBINR 12015083119387309 on 31.08.2015. The affidavit cum sale agreement was executed between the parties. It was agreed between the parties that the plant will be handed over by the OPs to the complainant within 45 days and the OPs will provide (1) original invoice of Athrava Infrastructure (2) No Objection Certificate of the OPs and (3) Sale Confirmation Letter from Atharva Infrastructure. After receiving the entire sale consideration of the above plant from the complainant, // 3 // the OPs sent a letter dated 08.09.2015 and asked the complainant to take possession of the plant. On 11.09.2015, when the complainant went to Borigumma Yard Odisha for taking possession of the plant, then the OPs asked the complainant to deposit a sum of Rs.3,00,000/- towards parking charges and other charges. The complainant told the OPs that the above amount will be paid by the OPs then they refused to give delivery. The complainant informed the OPs regarding the same and requested to give delivery of the plant, then the OPs gave only assurance and did not give any response to his request. The complainant went to Borigumma Yard Odisha along with his staff for taking delivery of the plant, in which he spent Rs.1,00,000/- The OPs are fully responsible to pay the above amount to the complainant. The complainant continuously requested the OPs through telephone and by personally contacting the OPs but the OPs did not give importance to his request and are only giving assurance and are passing time. The complainant sent notice to the OPs through his advocate but the OPs did not give delivery of the plant and also did not pay the compensation. The OPs did not give reply of the above notice. The act of the OPs comes in the category of deficiency in service. Therefore, the complainant filed the instant complaint and prayed for granting relief as mentioned in the complaint.
3. The OPs have filed their written statement and averred that M/s Vinod Kumar Jain, which is a partnership firm has purchased the // 4 // plant in his own will. The above partnership firm has executed the affidavit and agreement. Personal transaction has not been made with the complainant. Partnership firm M/s Vinod Kumar Jain itself executed the documents. After selling the plant to the purchaser firm, letter was issued to the purchaser firm on 08.09.2015 for taking possession of the plant. In this letter the OPs mentioned that the Company will bear parking charges till 12.09.2015. The averment that Borigumma Yard refused to give delivery of the plant is incorrect. The complainant did not suffer any loss. The complainant has no right to send notice. No transaction was made with the complainant. The OPs did not commit any deficiency in service towards the complainant or the purchaser firm. The complainant is not entitled to get any relief. The complainant is not a consumer and no consumer dispute is existed in the matter. This Commission has no jurisdiction to hear the instant complaint. The plant which is mentioned in the complaint is a very big machine which is for fully commercial purpose. This plant has been financed by the OPs to M/s Atherva Infrastructure and the same was taken in their possession by the OPs when the above company defaulted in making payment. The OPs want to sale the above plant on the principle as is where is. As per information of the OPs, the purchaser firm M/s Vinod Kumar Jain through Atherva Infrastructure, shown its interest to purchase the plant. The purchaser firm M/s Vinod Kumar Jain gave an offer letter // 5 // in this regard to the OPs, in which it was offered to purchase the plant at Rs.26,50,000/- and the above firm consented to purchase the plant as per the condition of the OPs i.e. principle of "as is where is". The OPs accepted the proposal of the purchaser firm and the OPs sold the above plant to purchaser firm M/s Vinod Kumar Jain and letter was issued on 08-09-2015 for handing over the plant. The possession of the plant was to be taken from Borigumma Parking Yard, but till date the purchaser firm has not taken possession of the plant. As per information of the OPs due to any dispute with M/s Atherva Infrastructure, the plant could not be delivered to purchaser firm M/s Vinod Kumar Jain. There is no hurdle or prohibition on behalf of the OPs for delivery of the plant. The purchaser firm M/s Vinod Kumar Jain is a partnership firm, who purchased the plant for earning large scale profit and for commercial purpose. The complainant is a partner in the above firm, but he has no right to file the instant complaint. The complainant is not consumer. This complaint has been filed in the personal capacity. The purchaser firm M/s Vinod Kumar Jain is a firm which is constructing road and government construction at a large scale and the State Government has given A-5 category licence. This firm is doing construction work in various parts of the State of Chhattisgarh. Beside it, the complainant is also a director of Vinod Kumar Jain Agro Exim Pvt. Ltd. which is selling agricultural product, seed etc. The transaction held between the OPs and // 6 // purchaser firm M/s Vinod Kumar Jain does not come within Consumer Protection Act, 1986. The transaction is commercial transaction and is based on personal contract. The OPs sold the plant on the principle of "as is where is" and the same was purchased by M/s Vinod Kumar Jain after seeing it. The instant complaint requires elaborate evidence and the same is not maintainable under Consumer Protection Act, 1986. The complainant has deliberately not impleaded Borigumma Yard as party, therefore, the complaint is not maintainable on this ground. The complaint is liable to be dismissed with cost of Rs.25,000/-.
4. The complainant has filed documents which are affidavit cum sale agreement dated 31.08.2015, letter dated 08.09.2015 sent by the OPs to Borigumma Yard, Orissa for release of the assets - Gujarat Apollo Hot Mix Plant with DG Set, registered notice dated 07.11.2015 sent by Tiwari and Tiwari Associates, Advocates to L & T Finance Limited, Mumbai and L & T Finance Limited, Indore (M.P.), Account Statement from 31.08.2015 to 31.08.2015, acknowledgement, order sheet dated 06.08.2016 of this Commission in Complaint Case No.CC/2016/36 - Vinod Kumar Jain Vs. L & T Finance Ltd. and Two Others.
5. The OPs have filed documents. Annexure R-1 is Finance Letter to M/s Atherwa, Annexure R-2 is Valuation Report, Annexure R-3 is // 7 // Offer Letter by M/s Vinod Kumar Jain, Annexure R-4 is Construction details to website. Annexure R-5 is Other business details on website.
6. Shri Anurag Tiwari, learned counsel appearing for the complainant has argued that Gujarat Apolo Hot Mix Plant DG Set Model No.A.N.P. 1500 Year 2002 Serial No.2 R.J. 03399 was financed by the OPs to Atharva Infrastructure, Raipur and the above plant was mortgaged with the OPs in live of finance. Atharva Infrastructure committed default in making payment, therefore, the above plant was taken by the OPs in their possession. The above plant was sold by the OPs to the complainant. The price of the above plant was Rs.26,50,000/-. The amount of Rs.20,00,000/- was paid by the complainant to the OPs through UTR No.SBNR 12015083119387129 and Rs.6,50,000/- was paid through SBI NR 12015083119387309 on 31.08.2015. The sale agreement was executed along with affidavit and it was agreed that after 45 of days the plant is to be provided to the complainant, but inspite of receiving entire sale consideration from the complainant, the plant was not given to the complainant. The OPs sent letter dated 08.09.2015 and asked the complainant to take possession of the plant. On 11.09.2015 the complainant went to Borigumma Yard, Odisha for taking possession of the plant, then OPs asked the complainant to deposit a sum of Rs.3,00,000/- towards parking charges and other charges. The complainant told the OPs that all amount was paid to the OPs, then the OPs refused to give livery of // 8 // the plant. The complainant spent a sum of Rs.1,00,000/- regarding taking possession of the plant, but the plant was not delivered by the OPs to the complainant. Thus, the OPs committed deficiency in service. Therefore, the complainant has filed instant complaint. The complainant is entitled to get reliefs as mentioned in the complaint.
7. Shri Rakesh Puri, learned counsel appearing for the OPs has argued that the Affidavit Cum Sale Agreement was executed between the OPs and M/s Vinod Kumar Jain. M/s Vinod Kumar Jain is a partnership firm, who purchased the plant. The complainant has not purchased the plant in his personal capacity. Personal transaction has not been made with the complainant. After sale of the plant to the purchaser firm, a letter was issued to the purchaser firm on 08.09.2015 for taking possession of the plant. In the above letter it has been specifically mentioned that the Company will bear parking charges till 12.09.2015. The transaction between the parties is purely commercial transaction and the dispute is not a consumer dispute, therefore, the complainant does not come within the purview of consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. The complaint is liable to be dismissed. The complaint has been filed by Vinod Kumar Jain in his personal capacity and he was not authorised by the partnership firm to file the complaint, therefore, the complaint is not maintainable and is liable to be dismissed.
// 9 //
8. We have heard learned counsel appearing for both the parties have also perused the documents filed them in the complaint case.
9. The instant complaint has been filed by Vinok Kumar Jain in his personal capacity. Affidavit Cum Sale Agreement has been filed by the complainant. In the Affidavit Cum Sale Agreement it is mentioned that "I Vinod Kumar Jain S/o Shri Hanuman Prasad Jain residing at A-4 Romansque Villa, Labhandi, Near Sunita Park, Raipur, partner of M/s Vinod Kumar Jain, having office at A-3, Jeevan Vihar, Opp. Airport Road, Telibandha, Raipur (C.G.), solemnly affirm and state as under..". In each page of the affidavit cum sale agreement, seal of M/s Vinod Kumar Jain is affixed.
10. The OPs have filed document Annexure R-3, which is offer letter by M/s Vinod Kumar Jain. In the said offer letter also the name is mentioned as M/s Vinod Kumar Jain. Looking to the above documents, it appears that the Affidavit Cum Sale Agreement was executed between the OPs and M/s Vinod Kumar Jain and it was not executed by Vinod Kumar Jain in his personal capacity.
11. The complainant pleaded that he purchased the Plant with DG Set at the price of Rs.26,50,000/-. Initially the above plant was purchased by Atherva Infrastructure, Raipur, but it was repossessed by the OPs. Thereafter, the above plant was sold by the OPs to the complainant. Looking to the price, nature of work of the plant and the // 10 // plant is a big plant, it appears that the plant was purchased for commercial purpose. The complainant did not plead that he purchased the plant for self employment and for livelihood of his family.
12. In Birla Technologies Limited v. Neutral Glass and Allied Industries Limited, (2011) 1 Supreme Court Cases 525, Hon'ble Supreme Court has observed thus :-
"7. By its order dated 4.3.2004, the State Commission accepted the appellant's preliminary objection and dismissed the complaint. The respondent complainant, therefore filed First Appeal No.218 of 2004 before the National Commission. By its order dated 17.12.2009, which is impugned here, the National Commission reversed the order of the State Commission and held that the "goods" purchased by the respondent from the appellant were being used by the respondent for a commercial purpose and, therefore, the respondent was not a "consumer" within the meaning of Section 2(1)(d)(i) of the Act. However, the National Commission further held that notwithstanding such findings, the respondent was entitled to maintain a complaint under the Act with respect to the deficiency in service during one-year warranty period with respect to the said goods relying on Section 2(1)(d)(ii) of the Act.
10. Shri Siddharth Bhatnagar, learned counsel appearing on behalf of the respondent could not dispute this proposition and fairly accepted that the complaint was in fact filed on 26-6-2003 i.e. much after the amendment to Section 2(1)(ii), by which the following words were added :
// 11 // "but does not include a person who avails of such services for any commercial purpose".
11. In view of the findings of the National Commission that the goods sold by the appellant to the respondent complainant amounted to "goods" and that such goods were purchased for commercial purpose for earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary.
12. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15-3-2003 by way of the amendment by the same Amendment Act, as it is nobody's case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent's livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto."
13. In Rajeev Metal Works and Others v. Mineral & Metal Trading Corporation of India Ltd., (1996) 9 Supreme Court Cases 422, Hon'ble Supreme Court has observed thus :-
"6. Having given our anxious and very careful consideration to the respective contentions, the question emerges whether the appellant firm is a consumer. The word 'consumer' has been defined under Section 2(1)(d)(i) and (ii) thus :
// 12 // "(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 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 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 services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person."
7. Clause (i) provides that one who 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 promise, 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, is a consumer. The admitted case is that this does not apply. The question, therefore, is whether the service of the respondent availed by the appellants is covered under Section 2(1)(d)(ii)? Whether the transaction in the nature of buying the goods for a consideration which has been paid or promised? Whether the transaction in // 13 // question excludes the person who obtains such goods for resale or for any commercial purpose from the purview of the Act? It is true as contended for the appellants that the definition requires to be interpreted broadly so as to give effect to the legislative intention envisaged under the Act. But when the legislature having defined the term 'consumer' in broader terms, sought to exclude certain transactions from the purview of the Act what could be the meaning that would be assigned to the exclusionary clause, viz., "but does not include a person who obtains such goods for resale or for any commercial purpose". The intention appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, the object of the Act appears to be to exclude such commercial transactions from the purview of the Act. Instead, legislature intended to confine the redressal to the services contracted or undertaken between the seller and the 'consumer' defined under the Act. It is seen that the appellants admittedly entered their letters of credit with the respondent. The respondent is a statutory authority to act as canalised agency on behalf of the industries to procure required goods on their behalf from the foreign seller and acts in that behalf in terms of the letter of credit and conditions enumerated thereunder. It is seen that the respondent did not undertake any direct responsibility for supply or liability for non-supply of the goods. On the other hand, the appellants had solicited to have the goods supplied to it through the respondent and opened letter of credit in favour of the respondent. After collecting requirement from various industries in the country admittedly a consolidated demand for supply of the required quantity of the G.P. Sheets was indented with foreign sellers so as to procure the required goods for onward supply to the appellant and others. The goods supplied were required for commercial purpose, i.e., for manufacture and resale as finished goods during the course of their commercial business. Under the circumstances, the appellants intended to purchase these goods for commercial purpose, namely to // 14 // manufacture the tin sheets for resale. It is true that the word 'resale' used in the exclusionary clause of Section 2(1)(d) (i) was used in connection with the purchase of goods defined in the Sale of Goods Act for commercial purpose The ultimate object of the supply of the goods, namely, G.P. sheets to the appellants was manufacture of finished goods for resale. The goods were intended to be used for commercial purpose. Thus, considered, we are of the opinion that the appellants are not consumers by virtue of the exclusionary clause under Section 2(1)(d)(ii). Therefore, they would not come under Section 2(1)(d)(ii) of the Act. Since the object of the supply and purchase of the goods was commercial purpose, it would certainly come within the exclusionary clause of Section 2(1)(d)(ii). Otherwise, if the construction sought to be put up by Mr. Sanghi is given effect to, while foreign sellers are not liable under the Act within the definition of Section 2(1)(d) as they get excluded from the purview of the Act, the canalising agency would be fastened with the liability. Thereby, the definition of the word 'consumer' under Section 2(1)(d)(ii) is not attracted.
8. Consequentially, clause (ii) of Section 2(1)(d) does not apply. Considered from this perspective, we are of the opinion that the appellants are not consumer under Section 2(1)(d)(ii) of the Act. Thereby the complaint would not lie under Section 21 of the Act."
14. In Kurji Holy Family Hospital v. Boehringer Mannheim India Ltd. & Ors., III (2007) CPJ 371 (NC), the Hon'ble National Commission has observed thus :
"23. Dealing with the similar terms of the sale agreement, in the case of Indochem Electronic & Anr. v. Additional Collector of Customs, A.P., II (2006) SLT 658 = I (2006) CPJ 1 (SC) = (2006) 3 SCC 721, the Apex Court held as under :-
// 15 // "22. The deficiencies in EPABX system supplied by the appellants were such as were required to be attended to immediately. If the appellants had not been able to attend thereto immediately, there would be a 'deficiency of services' on the part of the appellants as immediate attention to such complaints was part of the contract.
23. The State Commission as well as the National Commission have arrived at findings of fact as regards nature of deficiencies of service complained of by the respondent in terms of the provisions of the contract. If such breaches of conditions of warranty admittedly had taken place during the period of warranty, no exception can be taken to the judgment and order passed by the State Commission as also the National Commission.
24. The appellant had all along been aware that the system installed by it had not been functioning properly. On its own showing, it had been attending to the complaints made by the respondent relating to the functioning of the system. It has categorically been stated by the appellant itself that despite expiry of the period of warranty it had been attending to the complaints as and when made by the respondent which were of serious nature.
24. Similar is the position in the present case. Admittedly, the 'Swelab' was not functioning since the initial stage. Therefore, the respondents replaced it by another 'Swelab'. That also was not functioning despite its being repaired by the respondents' mechanics on a number of occasions. And, in such cases it would be a deficiency in service as defined in Section 2(1)(g) of the Consumer Protection Act, 1986. It is also to be stated that the Swelab Auto Counter AC 920-11 Haematology Analyzer cannot be used by the hospital, if it is defective or not functioning properly, because in such case, the pathological reports // 16 // will be inaccurate which will have adverse effect on diagnosis and treatment."
15. In JCB India Ltd. Vs. Mallappa Sangappa Mantri & Anr., IV (2012) CPJ 220 (NC)., Hon'ble National Commission has observed thus :-
"6. We have no manner of doubt in holding that the aforesaid observations of the State Commission based on which the impugned order was passed were not only contrary to the facts on record but against the settled law in this regard and hence the impugned order cannot be sustained. The reliance of the State Commission on the decision rendered by the National Commission in the case of Dr. Vijay Prakash Goyal v. The Network Ltd., IV (2005) CPJ 206 (NC) = 2006 (1) CPR 164 (NC), is ill-placed since the present dispute has arisen after the amendment of Section 2(1)(d)(i) containing definition of a consumer w.e.f. 15.3.2003. Keeping in view the admitted position emanating from the complaint itself and other aspects of this case, we are convinced that the machine was being used by the complainant for earning profits and hence for commercial purposes by employing a number of people and we do not find any denial to these facts buy the complainant anywhere on record. In the circumstances, as already held by this Commission in the cases cited by the Counsel, we are of the considered view that when a customer buys goods for commercial purposes and avails of services attached to the goods in the nature of warranty, he cannot be considered to be consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(1)(d)(i) of the Act which came into force w.e.f. 15.3.2003. In view of this, the complainant / respondent No.1 cannot be held to be a consumer and hence the complaint in question is not maintainable before any Consumer Forum. Consequently, the revision petition stands allowed and the impugned order is set aside and complaint is // 17 // dismissed with no order as to costs. Liberty, however, is granted to the respondent No.1/complainant to approach appropriate Forum for redressal of his grievance and in case he chooses to do so, he can claim the benefit of Section 14 of the Limitation for the time spent before the Consumer Fora in accordance with the ruling given by the Apex Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583."
16. In Kishore Ramchandra Bhide v. Habibat India Agro Development Pvt. Ltd. & Ors., IV (2012) CPJ 706 (NC), Hon'ble National Commission, has observed thus :-
"7. The Supreme Court has discussed the term 'consumer' in the celebrated authority reported in Laxmi Engineering Works v PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 3 SCC 583, wherein it was held :
"The National Commission appears to have been taken 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(1)(d) 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 // 18 // 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 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 purpose to 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 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".
// 19 // A person cannot be said to be consumer if he purchases the second house."
17. In Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC)., Hon'ble National Commission has observed thus :-
"3. From the facts narrated in the complaint, it is clear that the Turbine (T.G. Set) in question had been purchased by the complainant for commercial purpose and, purchase for commercial purpose is excluded under Section 2(1)(d)(i) of the C.P. Act. Likewise, the services of the warranty for commercial purpose are also excluded for commercial purpose under Section 2(1)(d)(ii) w.e.f. 15.3.2003. A Division Bench of this Commission to which one of us (R.K. Batta, J) was a party has after scrutiny of a large number of judgments, which actually pertain to the pre-amendment period i.e. before 15.3.2003, in Meera Industries v. Modern Constructions, R.P. No.1765 of 2007 decided on 22.5.2009, wherein it was held :
"In view of the above, we are of the opinion that whether a customer buys goods for commercial purpose and avails of services attached to the goods in the nature of warranty, he cannot be considered to be a consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(d)(ii) of the Act, which came into force w.e.f. 15.3.2003. In view of this, the complainant cannot be held to be a consumer with reference to the services attached to the warranty and the complaint is not maintainable".
18. In Sanjay D. Ghodawat v. R.R.B. Energy Ltd., IV (2010) CPJ 178 (NC), Hon'ble National Commission has observed thus :-
// 20 // "21. In the complaint it was contended that the complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, since the complainant had engaged and availed the services of OP for providing software. The main prayer in the complaint was seeking directions to the OP to rectify the defects in the services to provide 7 modules (software system). It was only in the alternative that refund of the entire consideration was sought with interest. In the complaint, the complainant had alleged that contract with OP was entered into on 1.6.1998 pursuant to which, the software was to be developed in 15 months from 1st April, 1998 till 30th July, 1999. The complainant had also pleaded that the OP had agreed to provide one year warranty from the final date of installation for one year and annual maintenance. The complainant noted defects in the modules as also shortcomings in OP's services during the warranty period in the year 2000. The grievance of the complainant is that the services during the warranty period were not provided and the defects were not rectified. Hence, complaint was filed on 1.8.2000. Prior to the amendment Section 2(1)(d)(ii) by Amendment Act, 2002 a person hiring or availing services for consideration was not excluded even though the services were availed for any commercial purpose.
Therefore, in this case, if there was any deficiency in service during the warranty period, the complaint could be maintained before the Consumer Forum for the said purpose. Accordingly, insofar as defects in service during the warranty period are concerned, the case is governed and covered by the judgments of this Commission relating to the pre-amendment period, which has been referred to in Meera Industries, Howrah v. Modern Constructions, Howrah (supra). Therefore, the complaint in F.A. No.218/04 with respect to the deficiency of service during the warranty period is maintainable and appeal to that extent is allowed and the order of the State Commission to that extent is modified with no order as to costs."
// 21 //
19. In M/s Rohit Chemical & Allied Industries Pvt. Ltd. National Research Development Corporation, IV (2013) CPJ 87 (NC), Hon'ble National Commission has observed thus :
"22. In Laxmi Engineering Works v. P.S.G. Industrial Institute, AIR 1995 SC 1428, it was held :-
"12. Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression 'resale' is clear enough. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. 'Commercial' denotes "pertaining to commerce" (Chamber's Twentieth Century); it means "connected with, or engaged in commerce; mercantile; having profit as the main aim" (Collins English Dictionary) whereas the word 'commerce' means "financial transactions especially buying and selling of merchandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taken 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 // 22 // to Section 2(1)(d) 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 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 purpose to 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 // 23 // 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 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. This is necessary limitation flowing from the expressions "used by him" and "by means of self-employment in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words".
20. On the basis of Affidavit Cum Sale Agreement dated 31.08.2015 and other documents, it appears that the above plant was not purchased by the complainant for his personal use or livelihood, but it was purchased by the partnership firm M/s Vinod Kumar Jain, which indicates that the plant was purchased by M/s Vinod Kumar Jain for commercial purpose, therefore, the complainant does not come within purview of "consumer" as defined in Section 2(1)(d) of the Consumer Protection Act, 1986 and the dispute between the parties is not "consumer dispute", therefore, the complaint is not maintainable. The complaint is liable to be dismissed.
21. Therefore, the complaint of the complainant, is hereby dismissed. No order as to the cost of this complaint.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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