State Consumer Disputes Redressal Commission
M/S Maya Engineering Works vs Icici Bank on 4 September, 2013
IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision:04.09.2013 First Appeal No.2010/645 (Arising out of Order dated 07.06.2010 passed by the District Consumer Forum(New Delhi) Vikas Bhawan, New Delhi in Complaint Case No.1395/2005) M/s. Maya Engineering Works. Appellant /Complainant D-15, Shopping Cnetre, through Sh. Mahender S. Adil, Mansarovar Garden, authorized representative. New Delhi-110015. Versus ICICI Bank Ltd. . Respondent/Opposite Party A-9, Phelps Building through Mr. Hemant Gupta, Connaught Place, New Delhi advocate. CORAM Justice Barkat Ali Zaidi President Ms. Salma Noor Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice Barkat Ali Zaidi , President
1. The facts of the complaint case are that the complainant firm is a manufacturer and exporter of engineering goods, and the OP is a Banking company authorized dealer in foreign exchange with whom the complainant is maintaining a current account. The complainant pursuant to an order of overseas buyer M/s. Next Trading International, Lusaka, Zambia to send him some goods had shipped them vide invoice dated 12.07.2004, bill of lading dated 19.07.2004, packing slip, bill of exchange and had submitted these export documents to the OP for collection. The OP was under statutory obligation to present the aforementioned documents for collection for USD 29796 which the OP failed. The OP further failed to serve mandatory notice of dishonour and his negligence and omission resulted in loss and damages to the complainant. The complainant therefore filed a complaint before the District Forum against the OP, praying that the OP be directed to pay the complainant Rs.449659/-, towards the losses and damages, compensation towards inconvenience and mental agony and the costs.
2. The OP opposed the claim denying all the adverse allegations against him by filing the written version, also raising few preliminary objections that the complainant doest not fall under the definition of consumer as given under section 2(1)(d)(ii) of The Consumer Protection Act 1986, as the complainant was using his current account with the OP for commercial purpose, and the complaint being time barred. OP alleged that the complainant changed his instructions for collection to the OP thrice yet the OP duly complied with his obligations towards the complainant, in the transaction in question.
3. The Forum dismissed the complaint of the complainant without adverting to its merits, on the ground that the transaction in question is a commercial transaction, and the complainant does not fall within the definition of consumer.
4. That is what brings the appellant/complainant in appeal before this Commission.
5. We have heard Sh. Mahender Singh Adil, A/R of the complainant and Sh. Hemant Gupta, counsel for the respondent in this appeal.
6. First question which needs to be considered at the outset is that whether transaction is hit by section 2(1)(d)(ii) of The Consumer Protection Act, being commercial transaction as alleged by the respondent/OP.
7. A/R of the complainant relied upon case of Kishore Lal Vs Chairman, Employees State Insurance Corporation (2007) 4 Supreme Court Cases 579, wherein following observations were made:
The definition of `consumer' in the CP Act is apparently wide enough and encompasses within its fold not only the goods but also the services, bought or hired, for consideration. Such consideration may be paid or promised or partly paid or partly promised under any system of deferred payment and includes any beneficiary of such person other than the person who hires the service for consideration. The Act being a beneficial legislation, aims to protect the interests of a consumer as understood in the business parlance. The important characteristics of goods and services under the Act are that they are supplied at a price to cover the costs and generate profit or income for the seller of goods or provider of services. The comprehensive definition aims at covering every man who pays money as the price or cost of goods and services. However, by virtue of the definition, the person who obtains goods for resale or for any commercial purpose is excluded, but the services hired for consideration even for commercial purposes are not excluded. The term `service' unambiguously indicates in the definition that the definition is not restrictive and includes within its ambit such services as well which are specified therein. However, a service hired or availed, which does not cost anything or can be said free of charge, or under a contract of personal service, is not included within the meaning of `service' for the purposes of the CP Act.
8. This case came to be interpreted by the National Commission in the case of Victory Electricals Ltd. Vs IDBI Bank Ltd. & Ors. I(2012) CPJ(NC) and the following observations were made by the National Commission:
4. Learned counsel for the complainant has vehemently argued that services availed by the complainant cannot be said to be for commercial purpose and at best it can be said that it was for ancillary purpose to the business of the complainant. In support of the contention, she has heavily relied upon the decision of the Supreme Court in the case of Kishore Lal Vs. Chairman, Employees State Insurance Corporation (2007) 4 SCC 579 and in particular to the observations made by the Bench in para 7 of the said decision, which is to the following effect:
The definition of consumer in the CP Act is apparently wide enough and encompasses within its fold not only the goods but also the services, bought or hired, for consideration. Such consideration may be paid or promised or partly paid or partly promised under any system of deferred payment and includes any beneficiary of such person other than the person who hires the service for consideration. The Act being a beneficial legislation, aims to protect the interests of a consumer as understood in the business parlance. The important characteristics of goods and services under the Act are that they are supplied at a price to cover the costs and generate profit or income for the seller of goods or provider of services. The comprehensive definition aims at covering every man who pays money as the price or cost of goods and services. However, by virtue of the definition, the person who obtains goods for resale or for any commercial purpose is excluded but the services hired for consideration even for commercial purposes are not excluded. The term service unambiguously indicated in the definition that the definition is not restrictive and includes within its ambit such services as well which are specified therein. However, a service hired or availed which does not cost anything or can be said free of charge or under a contract of personal service is not included within the meaning of service for the purposes of the CP Act.
Learned counsel laid great emphasis on the sentence, by virtue of the definition, the person who obtains goods for resale or for any commercial purpose is excluded but the services hired for consideration even for commercial purposes are not excluded appearing in the above paragraph. In our view the said observation must be in context of the provisions of section 2 (1) (d) as it appeared before amendment of the clause (ii) thereof and could not be in context of the amended clause (ii) which has specifically excluded the person(s) availing services for commercial purpose from the purview of definition of consumer appearing in that section. The judgment of the Supreme Court is to be read as whole and not in isolation. On a careful reading of the judgment, it cannot be said that Supreme Court laid down that any person who avails the services for any commercial purpose can still be considered as consumer and is entitled to invoke the jurisdiction of a consumer fora. Such an interpretation and meaning would render the amendment made in clause (ii) of Section 2 (1) (d) totally redundant which could never be the intention of the Supreme Court in making the said observations.
9. It will thus appear that in accordance with the interpretation of the National Commission, the present transaction is hit by the commercial clause given in section 2(1)(d)(ii) of The Consumer Protection Act. It has to be noticed that the complainant is admittedly a commercial firm, carrying on business of exporting engineering goods. It is not a business by an individual for earning his livelihood. Prima facie therefore the transaction entered into by the complainant, will be covered by the commercial clause under section 2(1)(d)(ii) of The Consumer Protection Act. It has therefore to be held that the complaint is barred by section 2(1)(d)(ii) of The Consumer Protection Act. The District Forum was therefore right in holding that the complaint is not maintainable in view of section 2(1)(d)(ii) of The Consumer Protection Act, and the matter need not be considered on merits.
10. Appeal dismissed.
11. A copy of this order be provided to the parties free of costs as per rule and a copy of this order be sent to the concerned District Forum to place it on the record of the complaint case No.1395/2005 for information. The file be consigned thereafter to Record room.
Announced on 04th day of September 2013.
(Justice Barkat Ali Zaidi) President (Salma Noor) Member Tri