Complainant no.1 is an Ex Indian Air Force Pilot and presently working as a commercial pilot in a private airlines. Complainant no.2 is the wife of complainant no.1. She was previously working but presently she is a home maker. 2. The complainants have filed the instant complaint on the allegation that taking note of rigorous health parameters of the flying job of complainant no.1 and increasing uncertainties and attending risk of the flying job, the complainants with a view to guard against consequences of any abrupt and unplanned exit from the job, booked commercial space comprising of basemen, ground floor, first floor, second floor and third floor in Commercial Plaza undertaken to be developed by the opposite parties in Sector 98, 99,104,105,105,108,109 and 110 Mohali. The total agreed consideration for the aforesaid Combined Vertical Unit was Rs.2,44,58,230/-. The possession was agreed to be delivered within 36 months. It is the case of the complainants that although they have paid almost 95% of the consideration amount, the opposite party has failed to complete the construction of the Plaza and deliver possession of the allotted unit to the complainants. Claiming this to be deficiency in service, complainants have raised instant consumer dispute seeking following reliefs: “a. Direct the opposite parties to refund to the complainants the principal amount of Rs.2,34,68,524/- paid by them, along with the interest @ 15% per annum from the date of deposit till refund and also pay an additional sum of Rs.2,00,000/- towards loss of opportunity suffered by the complainants; b. Pay the agreed compensation for the period of delay in the completion and delivery of possession from 01.07.2011 upto 31.05.2014 calculated at the stipulated rate of Rs.50 per sq. ft. per month for the total super area of 6515 sq.ft. amounting to Rs.1,41,01,250/- and further compensation at the same rate from 01.06.2014 till the date of refund of the above principal amount with interest as mentioned above; c. Pay compensation of Rs.10,00,000/- on account of pecuniary loss, mental agony and physical harassment suffered and being suffered by the complainants for the last about 6 years. d. Pay costs of Rs.2,00,000/- for driving the complainants into unwanted litigation; e. Pass any other/further order as may be found just and proper in the case.” 3. The opposite parties on being served with the notice of the complaint have filed the written statement, wherein apart from disputing the allegations on merits, which need not be reproduced, have raised preliminary objection that instant complaint is not maintainable because complainants are not the consumers as defined under section 2 (1) (d) of the Consumer Protection Act, 1986 ( in short, the Act). 4. Arguments on maintainability of complaint heard with the consent of parties. The question which needs determination is whether or not the complainants are consumers as envisaged under section 2 (1) (d) of the Act? 5. In order to find answer to this question, it would be useful to have a look on definition of ‘consumer’, as envisaged under section 2 (1) (d) of the Act which is reproduced as under: (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.” 6. On reading of the above, it is clear that consumer is a person who buys any goods or hires or avails of any service for consideration which has been paid or promised or partly paid and partly promised but does not include a person who buys such goods or avails of such service for any commercial purpose. 7. On perusal of complaint, it cannot be disputed that complainants are husband and wife had booked a commercial space i.e. Combined Vertical Unit comprising of basement, ground floor, first floor, second floor and third floor in the Commercial Plaza undertaken by the opposite party. Thus, it is clear that complainants had availed of service of the opposite party for commercial purpose. Therefore, as per the exception carved out in the definition of consumer, the complainants cannot be termed as consumers unless they are covered under the Explanation which provides that for the purpose of Section 2 (1) (d), “commercial purpose” does not include use by a person of goods bought and used by him and service availed by him exclusively for the purpose of earning his livelihood by way of self employment. 8. Learned counsel for the complainants has contended that complainant no.1 at the time of booking of subject commercial space was an airline pilot and the complainants had booked the aforesaid space in the project undertaken by the opposite party with the clear intention to set up aviation training academy in the said space with a view to earn livelihood by way of self employment after the complainant no.1 leaving the job as pilot which is always subject to uncertainties and attending risk. In support of this contention, learned counsel for the complainants as referred to allegations in para 2, 5 & 6 of the complaint as also affidavit of the complainants in support of the complaint. 9. On careful consideration of record, I do not find merit in the contention of the complainants. Undisputedly, at the time of booking of above noted commercial unit, complainant no.1 was gainfully employed as pilot with private airlines. Though the complainant no.1 in his affidavit has alleged that complainant no.2 was previously as Assistant Manager in Times of India and later as Managing heading the store with Tanishq and at the time of filing of complaint she was a home maker, the complainant no.1 has not given the date /s on which complainant no.2 quitted her job with Times of India and later with Tanishq. In absence of any cogent evidence to the effect that complainant no.2 was home maker at the time of booking of subject commercial space, I am inclined to draw a presumption that she was also gainfully employed when the subject commercial purpose was jointly booked by the complainants. 10. Complainant no.1 in his affidavit has tried to prove that he alongwith his wife had booked the subject commercial space with intention to set up aviation training academy in the Commercial Plaza with a view to earn livelihood for the complainants by way of self employment i.e. running academy. The aforesaid evidence of the complainants is belied by the allegations in para 6 of the complaint, which reads as under: “With the aim and to earn livelihood by self-employment, the complainants jointly applied in February, 2007 for the allotment of a unit comprising of Basement Floor, Ground Floor, First Floor, Second Floor and Third Floor of a unit in the Commercial Plaza and deposited the required booking amount equal to 15% of the sale price with the opposite parties. The complainant’s plan was to use the basement for storage, UPS, computer server, maintenance equipment, the ground floor for reception, office, pilot lounge and pilot shop; first floor for computer based training with about 25 work station cubicles, aviation library, briefing room, second floor for synthetic flying simulator for training flights, class room; third floor for conference/lecture hall, canteen/pantry. Thus, the complainants are the consumers and the opposite parties are service providers within the meaning of Consumer Protection Act. “ 11. On reading of the highlighted portion of para 6 reproduced above, it is obvious that the complainants wanted to start a huge set up in the said commercial space booked by them which would have employed receptionist, office staff and pilots etc. Otherwise, there was no need for setting up of reception, office, pilot lounge and pilot shop etc. To run such a project, complainants obviously would have to engage sufficient number of support staff. 12. In the matter of Laxmi Engineering Works vs. PSG Industrial Institute (1995) 3 SCC 583 Hon’ble Supreme Court had dealt with the definition of consumer and the explanation added to Section 2 (1) (ii) (d) by 1993 amendment. In para-11 of the judgment Hon’ble Supreme Court has observed as under: - “A review of the provisions of the Act discloses that the quasi-judicial bodies/authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not courts though invested with some of the powers of a civil court. They are quasi judicial tribunals brought into existence to render inexpensive and speedy remedies to consumers. It is equally clear that these forums/commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. The forum so created is uninhibited by the requirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself, any recognized consumers' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for "business-to-consumer' disputes and not for "business-to- business" disputes. This scheme of the Act in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal. 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 Dictionary); 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 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 the 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 earing 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 emphasis 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. This is the 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.” 13. On reading of the above, it is clear that in order to bring their case within the explanation to Section 2 (1) (d) the complainants have to show that they hired or availed of services of the opposite party exclusively for the purpose of earning their livelihood by means of self-employment. Hon’ble Supreme Court has taken pains to clarify this aspect by giving some illustrations such as if a purchaser of a truck purchases it for plying it as a public career by himself he would be a consumer. As against the said explanation, Hon’ble Supreme Court has observed that if a person 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. From this it is evident that if a person hires or avails of services with a view to run an academy which would entail employing several persons then such a person cannot be said to have availed of services of opposite party exclusively for the purpose of earning livelihood by way of self employment. From the pleadings of the complainants it is obvious that they wanted to start huge set up in the commercial space booked by them which would require employment of several persons like receptionist, office staff and pilot etc., therefore, it cannot be said that the case of the complainants is covered under the explanation to Section 2 (1) (d) of the Act. 14. In view of the discussion above, it is clear that the complainants have availed of services of the opposite party for a commercial purpose. Therefore, they are excluded from the definition of consumer as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986. Thus, the complainants not being the consumer have no locus standi to raise a consumer dispute. The complaint is therefore dismissed. This order, however, will not come in the way of the complainants to avail of their remedy by approaching the appropriate forum. |
