National Consumer Disputes Redressal
M.T. James vs P.M. Baburajan on 27 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1507 OF 2012 (Against the order dated 29.12.2011 in First Appeal Nos. 366/10, 387/10 & 222/11 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram) Mr. M.T. James ........ Petitioner (s) Director Deev Gen Set (P) Ltd. Industrial Development Area South Vazhakkulam P.O. Keenpuram Aluva PIN-683105 Vs. 1. Mr. P.M. Baburajan Managing Director Hotel Bezota International ......... Respondent (s) Thiruvalla. 2. Mr. Manu Sreenivasan Managing Director, Authorized Dealer Unique Diesels Pvt. Ltd. Greaves Cotton Ltd. 41/1789, Sitaram Complex Opp. Sudheendra Medical Mission Hospital Kacherrypady, Chittor Road Kochi-18 3. M/s Greaves Cotton Ltd. Manufacturers of Diesel, Generating Sets A/212-213, Udyog Industrial Estate Vithaivadi Thane-421003 Maharasthra BEFORE: HON'BLE MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER HONBLE MR. SURESH CHANDRA, MEMBER For the Petitioner (s) : Shri Siddharth Dias, Advocate For the Respondent No.1 : Ms. Lakshmi N. Kaimal, Advocate For the Respondent No.2 : Already ex parte For the Respondent No.3 : Shri M. Dias, Advocate Pronounced on : 27th January, 2015 ORDER
PER SURESH CHANDRA This revision petition has been filed by the petitioner under section 21 (b) of the Consumer Protection Act, 1986 against the common judgement dated 29.12.2011 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in appeal Nos. 366 of 2010, 387 of 2010 and 222 of 2011. Petitioner was OP No.1 before the District Forum from whom the complainant, respondent No.1 herein, had purchased 180 KVA diesel generator set for getting steady and uninterrupted electric supply for complainants hotel. Respondent No.2 was OP No.2 and is the maintenance agent for the generator set in question and respondent No.3 was OP No.3 and is the manufacturer of the generator set.
2. Briefly stated, the factual matrix of this case relevant for its disposal are that the complainant who is the Managing Director of Hotel Bezota International, Thiruvalla, which is a 3-Star Hotel, purchased a 180 KVA diesel generator set from the petitioner for his hotel to ensure steady and uninterrupted electric supply. The complainant paid Rs.9,75,000/- by way of demand draft and cash as the price/consideration for the generator set and installation charges. The generator set was installed at the premises of the complainants hotel and commissioned on 10.7.2008. As per the allegation, on commissioning itself, it was noticed that the sound of the set was beyond normal limits. Even thereafter, the generator machine broke down and started giving problems. Keeping in view frequent problems faced by the complainant in regard to the functioning of the generator set and not feeling satisfied with the response of the OPs to the complaints made by him, the complainant filed a consumer complaint before the District Forum alleging deficiency in service and unfair trade practice on the part of the OPs and prayed for an order for directing the OPs to replace the generator set with a brand new one which will comply with the statutory requirements or in the alternative allow the complainant to realize Rs.9 lakhs from the OPs given by the complainant for the generator set in addition to Rs.2 lakhs as compensation for the deficiency in service and Rs.5 lakhs as compensation for the loss sustained by the complainant along with cost of the proceedings. The petitioner along with OP-2 filed a common reply and respondent No.3/OP-3 filed a separate reply to the complaint. Denying any deficiency in service on their part, the OPs opposed the complaint on several grounds. It was also contended that the complainant is not a consumer for the purchase of the generator set because it was purchased for his hotel business which is nothing but a commercial purpose and as such the complaint itself was not maintainable before the consumer fora.
3. After hearing the parties and considering the evidence led by them in support of their cases, the District Forum vide order dated 13.5.2010 allowed the complaint in terms of the following order:-
(a) The first opposite party is directed to replace and install a brand new genset of the same brand within 30 days from the date of receipt of this order at the complainants premises along with a compensation of Rs.25,000/- (Rupees Twenty five thousand only) for the deficiency of service committed by the first opposite party and a cost of Rs.5,000/- (Rupees Five thousand only) to the complainant, failing which the complainant is allowed to realise Rs.9,75,000/- (Rupees Nine lakhs seventy five thousand only) from the first opposite party with interest @ 7% per annum from the date of filing of this complaint till this date along with the compensation and cost ordered herein above and thereafter @ 10% interest per annum till whole realisation.
(b) The complainant is directed to return the defective genset and all its accessories to the first opposite party in the event of compliance of this order by the first opposite party.
(c) However, the first opposite party is at liberty to realise reasonable amounts from opposite parties 2 and 3 in case any deficiency of service committed by them to the first opposite party.
4. Not satisfied with the aforesaid relief granted by the District Forum, the complainant/respondent No.1 filed an appeal No.366/10 before the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram for awarding compensation for loss sustained by the complainant. The petitioner/OP-1 along with OP-2 filed appeal No.222/11 and OP -3 filed a separate appeal No.387/10 before the State Commission praying for setting aside the order passed by the District Forum against them. The State Commission vide its common impugned order dated 29.12.2011 upheld the order of the District Forum and dismissed all the three appeals.
5. Aggrieved of the impugned order passed by the State Commission, OP-1 has now preferred this revision petition challenging the same.
6. We have heard Shri Siddharth Dias, Advocate for the petitioner, Ms. Lakshmi N. Kaimal, Advocate for respondent No.1 and Shri M. Dias, Advocate for respondent No.3. Respondent No.2 was not represented and hence was proceeded ex parte. Learned counsel for the petitioner submitted that the impugned order passed by the State Commission is not sustainable either in law or on facts and is liable to set aside. He contended that the State Commission has failed to exercise the jurisdiction vested in it in the correct legal perspective and has acted with illegality and material irregularity in the exercise of its jurisdiction. Besides several other grounds, the main ground on which the counsel would assail the impugned order was that the complainant is not covered by the definition of a consumer as provided under section 2 (1) (d) of the Consumer Protection Act and as such its complaint was not maintainable before the consumer fora and hence both the District Forum and the State Commission committed grave error in entertaining the same. He submitted that fora below totally misunderstood the definition of consumer as contained in section 2 (1) (d) of the Act while entertaining the complaint and failed to appreciate the fact that the generator set in question was used for commercial purposes for generating power as alternative source of power supply for uninterrupted supply of power during the course of hotel business with a view to make profit. He submitted that the purchase and installation of the genset in question in the hotel for providing uninterrupted power supply has not been disputed and as such there cannot be any doubt that the genset was purchased and used for commercial purposes. Relying on the judgement of the National Commission in the case of Synco Textiles Pvt. Ltd. Vs. Greaves Cotton Company Ltd. [1(1991) CPJ 499 (NC)], learned counsel submitted that words for any commercial purpose are wide enough to take in all cases where goods are purchased for being used in any activity directly intended to generate profit. He also submitted that the finding of the fora below to the effect that since the breakdown is during the warranty period, so even 5-Star Hotel is a consumer is misconceived and illegal. He contended that after 2002 amendment to the Consumer Protection Act (w.e.f. 15.3.2003), availing a service for commercial purpose is excluded from the definition of service under section 2 (1) (d)
(ii). He submitted that the cases relied on by the fora below are arising from cases filed prior to 2002 amendment whereas the cause of action in the present case has arisen in the year 2008 to which the amended law would be applicable. In support of his submission, learned counsel has relied on the orders of this Commission in the cases of Gurbaksh Logistic India Vs. Action Construction Equipments Ltd. & Anr. [II(2012) CPJ 350 (NC)] and Sanjay D. Ghodawat & Ors. Vs. R.R.B. Energy Ltd. & Ors. [2010 (004) CPJ 0178 NCDRC]. In view of this, learned counsel pleaded that the findings of the fora below regarding the maintainability of the complaint itself being perverse and illegal being against specific provisions and settled position of law, the impugned orders are liable to be set aside and revision petition allowed with cost.
7. On the other hand, learned counsel for respondent No.1 has strongly supported the concurrent orders of the fora below and submitted that in the given facts and circumstances of the case, they deserve to be upheld and the revision petition dismissed.
8. We have carefully considered the rival contentions and perused the record. The first and the foremost legal issue which has arisen for our consideration in this case is as to whether the complaint in this case filed by respondent No.1 is maintainable keeping in view the provisions of section 2 (1) (d) as amended by 2002 amendment to the Act which came into force on 15.3.2003. The amended section which came into force on 15.3.2003 reads thus:-
(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 obtains 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 and partly promised, 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 of such services for any commercial purposes];
[Explanation. For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]
9. So far as the present case is concerned, admittedly the complainant/respondent No.1 who is the Managing Director of a 3-Star Hotel at Thiruvalla purchased the 180 KVA diesel generator set in question and used the same by installing it in his hotel for providing steady and uninterrupted electric supply within the hotel premises. This being the admitted position, it does not require any further clarification or proof to establish that the genset was purchased and used in the course of hotel business and without any doubt the same was done with a view to earn profits. In this view of the matter, we have no manner of doubt in our mind that the genset was purchased for commercial purposes. This being the position, respondent No.1 cannot be covered by the definition of a consumer as provided in section 2 (1) (d) (i) which provides that the definition of a consumer does not include a person who obtains such goods for resale or for any commercial purpose. In view of this specific provision, even if the goods in question are not meant to be resold or the power generated by the same is not for resale, as long as the purchase and use of the goods in question is for any commercial purpose the user cannot be covered by definition of consumer under the Act. Similar is the position in respect of hiring or availing of the service for a commercial purpose,. There is no plea taken by the complainant regarding the use of the genset bought by him for his hotel and the services availed by him in that regard that same were done exclusively for the purposes of earning his livelihood by means of self-employment. In the circumstances, the complaint of the complainant is hit by the provisions of section 2 (1) (d) both in respect of the purchase of the genset and its maintenance during the warranty period. This is in line with the view taken by the National Commission in a number of cases some of which have been referred by learned counsel for the petitioner and the law as laid down by the Apex Court. In a recent judgement in the case of Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd. [(2011) 1 SCC 525], their Lordships of the Supreme Court in the civil appeal filed by the appellant who was the opposite party and had supplied certain computer software to the complainant/respondent in that case, while accepting the appeal have observed thus:-
8.
We have gone through the impugned judgment, wherein there is a clear cut finding that the software in question amounted to sale of goods by the appellant to the respondent for commercial purpose and as such the respondent would be excluded for being considered as a `consumer' under Section 2(1)(d)(i) of the Act. However, the National Commission then proceeded to hold that there was a warranty period of one year in the year 2000 and as such since the complaint was filed on 1.8.2000, i.e. prior to the amendment of Section 2(1)(d)(ii) by the Amendment Act, 2002, a person hiring or availing of any services for a consideration was not excluded even though the services were availed for any commercial purpose. In that view, it proceeded to hold that if there was any deficiency in service during the warranty period, the complaint could be maintained before the consumer forum for the said purpose. For this, the National 6Commission relied on its judgment in Meera Industries, Howrah Vs. Modern Constructions, Howrah passed in R.P. No. 1765 of 2007.
7. Shri U.U. Lalit, learned Senior Counsel appearing on behalf of the appellant pointed out that there is a basic error committed by the National Commission inasmuch as it has proceeded on the basis that the complaint was filed on 1.8.2000, which was prior to the amendment of Section 2(1)(d)(ii) by the Amendment Act, 2002. Shri Lalit pointed out that the complaint in fact was filed on 26.6.2003 i.e. after the amendment of the said Section, which came on 15.3.2003. The learned Senior Counsel, therefore, submitted that even if there was any service which was hired from the appellant in view of the finding of the National Commission that the goods themselves were purchased from the appellant for commercial purposes, there would be no question of the service being included in Section 2(1)(d)(ii) particularly in view of the amendment. The learned Senior Counsel pointed out that the service offered by the appellant was only for proper working of the Modules which were included in the software and as such was for commercial purpose. He, therefore, pointed out that the order of the National Commission holding the complaint maintainable to the extent of services offered is clearly incorrect, as it proceeds on the wrong assumption that the complaint was filed on 1.8.2000 i.e. before 15.3.2003 when the amendment was made to Section 2(1)(d)(ii).
10. It is thus clear from the above that the findings of the fora below are perverse and illegal in regard to holding that the complainant/respondent is a consumer and his complaint was maintainable before them. They obviously committed grave error both in regard to their appreciation of the facts of the case and interpreting the law on the subject and as such their orders cannot be sustained in the eye of law and are liable to be set aside. We accordingly allow the revision petition, set aside the orders of the District Forum and the State Commission and dismiss the complaint as not maintainable before the consumer fora in view of the provisions of section 2 (1) (d) of the Consumer Protection Act, 1986. There shall be no order as to costs.
Sd/-....
(V.B. GUPTA, J.) PRESIDING MEMBER Sd/-.
(SURESH CHANDRA) MEMBER SS/