Date of Filing – 16.11.2011
Date of Final Hearing – 15.06.2017
The instant complaint under Section 17 (wrongly mentioned under Section 12) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a Private Limited Company through its Managing Director on the allegation of deficiency in services on the part of Opposite Parties in respect of delivery of 49 Air Condition Machines of various types along with the required accessories and fittings with prayer for several reliefs, viz. – (a) to replace all the faulty machines by new one of the desired model and provide an AMC for further free services; (b) for refund of the whole purchase amount paid by the complainant along with interest @ 18% p.a.; (c) a compensation of Rs.99,50,000/- for undue harassment; (d) litigation cost of Rs.50,000/- etc.
The Opposite Party Nos. 1 to 4 by filing a written version have challenged the maintainability of the proceedings on the ground that complainant cannot be termed as ‘consumer’ as defined in Section 2(1)(d) of the Act and on other points and it has been submitted that there was no deficiency in services on the part of them.
Both the parties have tendered the evidence on affidavit and also given reply against the questionnaire set forth by their adversaries. Besides the same, the parties have relied upon some documentary evidences.
On perusal of the petition of complaint, it emerges that the complainant has prayed for compensation of Rs.99,50,000/- and litigation cost of Rs.50,000/- but did not mention the value of the goods. Undisputedly, the complainant company intended to purchase 49 A/C Machines the value of which of Rs. 24,06,734/- and Rs.2,69,460/- and the said amount has not been calculated at the time of giving valuation of the complaint.
The Hon’ble National Consumer Commission is consistent with the view that it is the total value of the goods and/or services as well as that of compensation would determine the pecuniary limit of jurisdiction of Consumer Fora.
Needless to say, the jurisdiction means the authority of a Court/Forum to administer justice subject to the limitations imposed by law, which are three-fold, viz – (a) as to subject matter; (b) as to territorial jurisdiction and (c) as to pecuniary jurisdiction. If any Court or Forum passes any order without any competence, the said order would be a nullity. It is well settled that the question of territorial and pecuniary jurisdiction has to be ascertained at the initial stage or in the nascent phase of the proceeding. In a decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi – vs. – D.L.F. Universal Ltd. & Anr.) the Hon’ble Apex Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not in an appellate stage.
From the averment of the petition of complaint and the documents annexed with the petition of complaint, it would reveal that the value of goods i.e. 49 A/C machines and its accessories was Rs.26,76,194/- and if the amount of compensation of Rs.99,50,000/- is added with the value of goods, certainly the value of the claim exceeds Rs.1crore.
The provisions of Section 17(1)(a)(i) of the Act deals with the pecuniary jurisdiction of the State Commission, which provides –
“17. Jurisdiction of the State Commission. –
- Subject to the other provisions of this Act, the State Commission shall have jurisdiction-
- to entertain –
- complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore .......”.
In the case of Ambrish Kumar Shukla & Ors. –vs. – Ferrous Infrastructure Pvt. Ltd. reported in I (2017) CPJ 1 (NC) the Larger Bench of the Hon’ble National Commission while discussing on the point has observed thus-
“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing deficiencies in the goods purchased or the servicers to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint ....”.
Therefore, there cannot be any dispute that it is the value of goods or services and compensation claimed which determines pecuniary jurisdiction of the Consumer Forum. The State Commission enjoys a pecuniary jurisdiction not exceeding Rs.1 crore. In the instant case, the complainant has claimed Rs. 1 crore without adding the value of the goods and it is quite apparent that if the value of the goods and the compensation are added together, it will certainly exceeds rupees one crore. Therefore, this Commission lacks pecuniary jurisdiction to entertain the complaint.
Now, we will discuss whether the complaint can be termed as ‘consumer’ as defined in Section 2(1)(d) of the Act. For appreciation of the situation, it would be worthwhile to reproduce the provisions of Section 2(1)(d) of the Act which provides -
“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 then 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
- 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 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”.
The foregoing provision provides that the ‘consumer’ is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of services for any commercial purposes. Explanation to Section creates an exception and states that clause ‘commercial purpose’ does not include used by a person of goods brought and used by him and services available by him exclusively for the purpose of earning his livelihood by means of self-employment”.
In a decision dated 14.03.2012 in RP/3517/2007 (M/s. MCS Computer Services (P) Ltd. – Vs. – M/s. Allena Auto Industries Pvt. Ltd.), the Hon’ble National Consumer Commission has observed –
“Respondent is a private limited company and the commercial activities carried out by it cannot be for its earning livelihood by means of self-employment. Company has to act through somebody and the question of livelihood and self-employment under this circumstances would not arise. Company has judicious identity and it can be sued through a person. Company does the commercial activities for its shareholders. Question of earning livelihood by means of self-employment would not arise”.
The complainant has not filed any resolution of the Board of meeting to show the object behind purchase of such 49 A/C machines. However, in reply to the questionnaire of the OPs, Sri Alok Garodia, Managing Director of the complainant company has admitted that the complainant is engaged in the business of manufacture and distribution of computer hard work products. It is quite unbelievable a person will purchase 49 Air Condition machines for his personal use. Therefore, there is no doubt that the complainant will be excluded from the purview of the Act.
Consequently, the complaint is dismissed being not maintainable and also for want of pecuniary jurisdiction of this Commission. There will be no order as to costs.
However, this order will not debar the Complainant to approach a competent Court/Forum in accordance with law and in the process they may seek assistance of the decision of Hon’ble Supreme Court reported in (1995) 3 SCC 583 ( Laxmi Engineering Works – vs.- P.S.G. Industrial Institute) to overcome the hurdle of limitation as embodied in Section 14(1) of Indian Limitation Act.
