Sri Shyamal Gupta, Member

Present Appeal emanates out of the Order dated 11-03-2014 passed by the Ld. District Forum, Kolkata-II (Central) in C.C. No. 57/2013.

Complainant’s case, in a nutshell, is that it placed an order with the OP for the purpose of installation of an Elevator at his branch office on 02-06-2011.  After installation of the Elevator, during trial run itself, several problems were detected with the said Elevator.  The Complainant lodged a written complaint on 11-05-2012.  However, instead of rectifying the defects, the OP proposed to implement new technology at a cost of Rs. 1,35,000/- to get rid of the various problems faced by the Complainant.  However, such proposal being not acceptable to the Complainant, it asked the OP to either rectify the defects of the Elevator or refund the advance money paid by the Complainant to the OP.  As no fruitful outcome emerged out of the severe perseverance of the matter with the OP, the complaint was filed.

By filing a WV, the OP firstly disputed the status of the Complainant being a ‘consumer’.  Further the OP denied all the material allegations of the complaint petition.

Decision with reasons

Heard the Ld. Advocates and perused the material on record, including the citations referred to by both sides.

It is argued by the Ld. Advocate of the Appellant that the Respondent being a ‘Limited’ Company cannot be treated as a ‘consumer’.  It is further submitted by him that the lift was used for commercial purpose and for this reason also the present dispute is not adjudicable in its present form and prayer before the Consumer Fora.

The Consumer Protection Act, 1986 does not define the term ‘commercial purpose’.  So, interpretation of the term has been left open to the Consumer Fora by the Legislators.

“Commercial Purpose” is a very broad term that includes all purposes that results in a financial benefit, or might result in a future financial benefit. According to the meaning given in standard dictionaries, the expression commercial means connected with, or engaged in commerce; mercantile; having profit as the main aim.

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”.

Further, 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.

The Hon’ble Supreme Court has 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 real test, to my mind, is not the DNA of the buyer, i.e., whether the buyer is a ‘Limited/Private Ltd. Company’ or not.  It is all about the purpose of buying a product/hiring services from someone.  The term ‘commercial purpose’ denotes commercial activity.  But the goods purchased or services availed of by a person, to become for commercial purpose, must have a direct nexus with the commercial activity which that person is carrying on.  The purpose will be the determining factor.  It would be wrong statement based on fallacy to assume that all purchases made or any services availed of by a business house would invariably come under the exclusionary clause, irrespective of the purposes for such purchase or availing of service.  As such, whenever question arise whether goods have been purchased or services availed of is for commercial purpose, Consumer Forum should ideally apply the purposive test, e.g., purchase of a refrigerator by the owner of the diagnostic centre and another fridge for his residential use cannot be equated for the simple reason that purposes of said purchase are altogether different. 

In the present context, the Elevator was not purchased for the purpose of re-selling the same, but it was purely meant for the own consumption of the Appellant.  No doubt, the Elevator was installed at the branch office of the Appellant to ease upward-downward movement of visitors, employees, associates of the Appellant and not for earning financial benefit to the Respondent Company.  Therefore, by no stretch of imagination it can be said that merely because the Elevator was installed at the branch office of the Appellant, it was meant to serve commercial purpose of the Appellant Company.  The Ld. District Forum appears to have grossly erred in coming to a judicious decision while determining maintainability factor of the case.

Now, as regards grievance of the Appellant, documents on record sufficiently proves that due service was not rendered by the Respondents when it mattered most.  While the Respondents did not render bare minimum service to the Appellant, there is every reason to believe that Appellant’s confidence about the competence of the Respondents was at a low ebb. Probably, therefore, it could not muster up due courage to try and use innovative technology of the Respondents. In any case, whether a consumer would respond to the proposal of the seller/service provider or not, is the sole discretion of the consumer.  Under any circumstances, Consumer cannot be coerced to accept the proposal of the seller/service provider against the wish of the former.    

Be that as it may, fact remains that the Respondents have failed to repair the defective Elevator.  I, therefore, deem it fit and proper to direct the Respondents to either ensure due repairing of the Elevator, or refund the advance paid by the Appellant.

In the net, the Appeal succeeds.

Hence,

O R D E R E D

that FA/441/2014 be and the same is allowed on contest against the Respondents.  Respondents are directed to either repair the defective Elevator within 45 days hence free of cost to the entire satisfaction of the Appellant, or refund the advance amount of the Elevator being paid by the Appellant together with simple interest @ 9% p.a. from the date of filing of the complaint, i.e., on 13-02-2013 till full and final payment is made.  In case of repairing of the Elevator, Respondents shall extend the validity period of warranty by a year from the date of satisfactory repairing of the defective Elevator. The impugned order is hereby set aside.