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Ethos Ltd. v/s Vijay H.A. Proprietor Interscap Engineering

    Consumer Case No. 2310 of 2018

    Decided On, 09 September 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Complainant: Geeta Gulati, Advocate. For the Opposite Parties: Not served.



Judgment Text

Oral:

The complainant is a limited company, engaged interalia in the business of selling luxury watches. The complainant company has its stores at various locations, including at airports and in malls. The complainant hired the services of the opposite party for the purpose of carrying out the work of fit outs in its various stores. The work is stated to have been awarded in respect of the stores at five different locations. Alleging deficiency in the services rendered by the opposite party, the complainant is before this Commission with the following prayers:-

(a) Pay the overhead expenses of Rs.4,15,28,004.00;

(b) For refund of Rs.14,11,479.00, for the loss caused for already executed work ;

(c) The compensation for deficiency of Service and Unfair Trade Practice for unnecessary loss caused by the opposite parties, for amount of Rs.50,000,000.00;

(d) Direct the Opposite Party to pay to the Complainant Rs.1,00,000.00 as litigation expenses;

(e) Any other relief/interest as this Hon’ble Court deems fit.”

2. I have heard the learned counsel for the complainant on the question as to whether the complainant, which is a limited company, can be said to be a ‘consumer’ with the meaning of Section 2(1)(d) of the C.P. Act.

3. Section 2(1)(d) of the C.P. Act to the extent it is relevant, excludes from the ambit of the term ‘Consumer’, a person who hires or avails the services for a commercial purpose unless he can bring his case within the four corners of the explanation below the said provision. The complainant being a company cannot even claim that it had hired or availed the services of the opposite party for the purpose of earning its livelihood by way of self-employment, the said explanation being applicable only in the case of a natural person.

4. Admittedly, the stores in which fit out work was to be executed by the opposite party were meant for sale of luxury items such as luxury watches. The complainant, in my view, therefore, hired or availed the services of the opposite party for a commercial purpose, the said purpose being to make money and earn profits by selling luxury watches in those stores. The complainant, therefore, clearly will not be a consumer within the meaning of Section 2(1)(d) of the C.P. Act. It would be pertinent to note here that the aforesaid provision has been amended w.e.f. 15.3.2003 thereby including the words “but does not include a person who avails of such service for a commercial purpose”.

5. The learned counsel for the complainant has referred to the decision of the Hon’ble Supreme Court in Kishore Lal Vs. Chairman, Employees State Insurance Corporation - [Appeal (Civil) 4965 of 2000] dated 8.5.2007. In the above-referred decision, the wife of the appellant was admitted in ESI Dispensary at Sonepat in the year 1993. Alleging negligence in the treatment of his wife, he had filed a consumer complaint. The complaint was resisted by the ESIC interlia on the ground that the complainant was not a consumer. It was observed in para 7 of the decision that as per the definition of consumer in the C.P. Act, the services hired for consideration even for commercial purpose were not excluded. This judgement is clearly inapplicable in the present case since it is based upon the provisions of Section 2(1)(d) of the C.P. Act as they stood prior to amendment w.e.f. 15.3.2003.

6. The learned counsel for the complainant next refers to the decision of Hon’ble Supreme Court in Trans Mediterranean Airways Vs. M/s Universal Exports & Anr. [Civil Appeal No.1909 of 2004] dated 15.9.2011. The consumer complaint in Trans Mediterranean Airways (supra) also pertained to a consignment sent outside India in the year 1992. The learned counsel for the complainant has drawn my attention to para 29 of the judgement where a reference is made to Kishore Lal (supra). As noted earlier, the decision of the Hon’ble Supreme Court in Kishore Lal (supra) would not apply to the prese

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nt case since the services of the opposite party admittedly were hired or availed after amendment of the Section 2(1)(d) of the C.P. Act w.e.f. 15.3.2003. 7. For the reasons stated hereinabove, a consumer complaint in respect of the grievance of the complainant is not maintainable. The complaint is, therefore, dismissed with liberty to the complainant to avail such remedy other than a consumer complaint as may be available to it in law.
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