CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.373/2007
CONTROLLER
KERALA HOUSE
3-JANTAR MANTAR ROAD
NEW DELHI-110001
…………. COMPLAINANT
Vs.
M/S FEDDERS LLOYD CORPORTION LTD.,
B-10/1 OKHLA INDUSTRIAL AREA,
PHASE-II,
NEW DELHI
HAVING ITS REGD. OFFICE AT
C-4 NOIDA, PHASE-II,
GHAZIABAD,
U.P., INDIA
…………..RESPONDENT
Date of Order: 29.09.2015
O R D E R
A.S. Yadav – President
This complaint is filed by Kerala House through its Controller. The case of the complainant is that it purchased one Llyod Wall Mounted Osmosis Water Purifier for Rs.16,160/- on 27.4.2004 and one Llyod Reverse Osmosis Commercial Mosel water purifier for Rs.38,300/- on 03.7.2004 from OP. Both the water purifiers had a warranty for a period of one year from the date of installation both the purifiers were not working properly. Complainant informed the OP about the non-functioning of the water purifiers and OP repaired the purifiers each time but the same started given problems immediately after repairs. On 14.9.2004 OP repaired the water purifiers but after the said repair also the purifiers were not functioning properly. On 15.9.2004, complainant received a fax message from OP stating that the same was not functioning due to some breakage done intentionally and the same will not fall under warranty. Complainant sent a letter to OP on 27.9.2004 to replace the water purifiers. On 04.10.2004 OP repaired the water purifiers but the same started giving problems. On 06.10.2004 complainant sent a letter to OP to replace the water purifiers stating that they were repaired several time within the short span and very purpose of drinking pure water is not served. On 14.10.2004 complainant received a fax message from OP advising to install a filter for proper working of purifiers. Event after installing the filter at the expense of complaint, the purifiers have not been worked properly hence complainant sent letters to OP to replace the machine on 02.2.05 and 18.2.05. On 30.3.05 a technician from OP repaired the machine but the same worked only for few days. Complainant sent letters to OP either to cure the defects or to replace the machines on 30.3.2005 and on 23.6.2005. As OP showed reluctance to attend the complaint, complainant was forced to get the purifiers repaired from outside for a total amount of Rs.23,202.06 on 08.10.2005 and was also compelled to purchase drinking water from outside as there was spread of jaundice last year to its staff and guests.
Complainant has prayed that OP be directed to replace the two water purifiers or to pay a sum of Rs.150772.06 (for cost of purifiers and expenses on its repair and for water purchased from outside) and also to pay Rs.10,000/- towards litigation expenses and Rs.10 lakh towards compensation.
OP in the written submissions took the plea that complainant is not a consumer as per definition under Consumer Protection Act as the product was purchased by Kerala House for its business purposes. It is further stated that there was no deficiency on the part of OP as complainant itself is responsible for causing damage to otherwise perfectly working appliance. The complainant has misused the appliance and have failed to take due care for proper working of the appliance. Whenever any complaint even bogus was made by the complainant, the engineer of OP has visited the establishment and rectified the defect, if any, found in the appliance. The complainant failed to take proper precaution and they have damaged the appliance deliberately. There was no justification in the request of the complainant for replacement of purifier. It is prayed that the complaint be dismissed.
We have gone through the written arguments submitted by the parties as well as evidence on the record. The most important question is whether complainant is a “consumer” within the meaning of section 2(1)(d) of the Consumer Protection Act.
Section 2(d)(i) of Consumer Protector Act 1986 defines ‘consumer’ as under:-
“(d) ‘consumer’, means any person 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 party 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 resale or for approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or
- 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 service for consideration paid or promised, or partly paid or party promised, or under any system of deferred payment, when such services are availed of with the approval of first mentioned person, but does not include a person who avails of such services for any commercial purpose.
[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.]”
It is useful to refer to case of Pharos Solutions Pvt. Ltd. Vs Tata Motors Ltd. & Ors., IV(2014) CPJ 525. In that case, the company purchased a car for use of its Principal Director, it was held that the car has been purchased for commercial purposes by a company and does not come within the meaning of consumer. It is useful to refer to para(s) 12, 13 and 14 of aforesaid judgment which are reproduced as under:-
- In Satish Kumar Gajanand Gupta V. M/s. Srushti Sangam Enterprises (India) Ltd., & Anr., III (2012) CPJ 264 (NC) – Consumer Complaint No.296 of 2011, decided by this Commission, on 3.7.2012, the Hon’ble Apex Court, in Civil Appeal No.6229 of 2012, decided on 14.9.2012, upheld the order of this Commission that the petitioner was not a ‘consumer’ when he intended to purchase some permanent accommodation at Mumbai, for his stay during his business visits, from Delhi, to save on the expenditure incurred for hotels. For that purpose he had booked two flats.
- In M/s Purusharth Associates Pvt. Ltd. V. M/s. Uppal Housing Ltd. Plaza & Anr., III (2012) CPJ 500 (NC), this Commission in Consumer Complaint No.112 of 2012, on 5.7.2012, observed in paras 11 and 12 of its judgment, as under:-
- Learned Counsel for the complainant argued that these flats will be used for the officers of the Company. Learned Counsel for the complainant could not deny that those officers would transact the commercial activity. A bare look on this Resolution clearly goes to show that these flats would be meant for commercial purposes.
- The complaint being not maintainable, is therefore, dismissed. Nothing will debar the complainant to seek remedy before the appropriate Forum, as per law.
It is significant to note that in para 20 of its complaint, complainant has stated that because of defective purifier there was spread of jaundice last year to its staff and guests.
It is not in dispute that guests coming in Kerala House give money for their stay and for consumption of food articles. Even persons from outside can come and take food in Kerala House. So for all practical purposes Kerala House is indulging in commercial purpose and is not a consumer within the meaning of Consumer Protection Act. Hence the complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
