1. Heard the learned counsel for the appellant – complainant company and the learned counsel for the respondent no.1 – manufacturer.

None was present for the respondent no. 2 – authorized dealer, who was proceeded against ex-parte.

2. The case of the complainant, in brief, as stated in para 1 of the State Commission’s impugned Order dated 13.05.2016, is as below:

By this order, I shall be deciding preliminary objections raised by OP regarding maintainability of complaint. The case of the complainant is that on 11.08.2006 he purchased Scoda car no. HR-26AF-4589. In 2nd week of July, 2009, the car stopped running all of sudden and he contacted OP’s workshop. Rest of the allegations pertains to merits of the case and are not being mentioned herein. The claimant has prayed for return of his car in roadworthy condition, in the alternative to give a new car of the same make or its value. He has also prayed for damages on Rs. 2,00,000/- till date of notice i.e. 27.11.2009, additional charge of Rs. 3,000/- per day amounting to Rs. 8,16,000/- till filing of the case on 25.08.2010, additional damages of Rs. 5,000/- per day from date of filing of complaint on 25.08.2010 till actual delivery, damages of Rs. 2,00,000/- towards harassment, interest @ 24%, Rs. 55,000/- for the cost of litigation.

(para 1 of the State Commission’s Order)

3. The State Commission vide its Order dated 13.05.2016 has dismissed the complaint on the preliminary issue that the complainant is not a ‘person’ as used in the definition of ‘consumer’:

2. In reply, OP -1 raised preliminary objections that complainant is not a “person” as used in definition of “Consumer”. The vehicle is being used for commercial purpose. The vehicle was found to have logged in excess of some 91000 odd kilometres over 38 months from date of purchase.

3. During the course of arguments, the OP submitted that car has been purchased in the name of company and not individual. So apparently the same is meant for being used as commercial vehicle. He further submitted that there is no iota of allegations that the car was meant for personal use of any director. Hence, complaint cannot be entertained under Consumer Protection Act.

4. Arguments of OP are supported by the decision of National Commission in FA-723/06 titled as General Motors India Pvt. Ltd. Vs. G.S. Fertilizers Pvt. Ltd. decision on 07.02.2013. In para 9 of the judgement it was held that though vehicle had been purchased for use of MD, it will amount to purchase for commercial purpose. The reason being that MD of private limited company obviously would not use the vehicle for self employment to earn livelihood. Similar view was taken by National Commission in FA No. 7/13 titled as Belmarks vs. Skoda Auto India Pvt. Ltd. decided on 16.04.2013. In that case the complaint was dismissed by State Commission as not maintainable as car has been purchased for commercial purpose. i.e. for use of MD of appellant which is private limited company. The same was upheld by National Commission. To the same effect are decision of this Commission in FA no. 490/04 titled as Deep Blue Express Vs. Nijaan Auto (P) Ltd. decided on 26.02.2013 and decision of this Commission in Complaint Case No. 321/09 titled as Arch Finance Vs. Silvertone decided on 16.05.2013. Last in the series is decision of National Commission in Shivam Project (P) Ltd. Vs. Toyota Kirloskar Motor (P) Ltd. I (2015) CPJ 422.

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9. On the face of repeated decision of National Commission that in case the car is purchased in the name of a company, it does not become a consumer and complaint u/s consumer protection Act cannot be entertained, I do not think that complaint can be allowed to take help of indirect decision.

10. Objection of OP is upheld and complaint is dismissed.

(paras 2, 3, 4, 9 and 10 of the State Commission’s Order)

4. This first appeal has been filed against the said Order dated 13.05.2016 of the State Commission.

5. This bench finds the State Commission’s impugned Order to be well-appraised and well-reasoned. It notes in particular the extracts of the State Commission’s Order quoted in para 3 above. On the face of it, the bench finds no jurisdictional error, or a legal principle ignored, or miscarriage of justice.

6. It is admitted that the subject vehicle was purchased and registered in the name of M/s. R.D.S. Project Ltd., a company, which is in the business of real estate. It is clearly evinced on the face of it that the use of the vehicle was for commercial purpose. The onus of (a) categorically averring and (b) conclusively establishing that the subject vehicle was not for commercial use of the company and was for the personal use of one or the other position-holders or functionaries of the company was on the complainant company.

7. During arguments on 14.01.2019 learned counsel for the complainant company submitted that the subject vehicle was for the personal use of a director of the company.

The learned counsel also drew attention to Crompton Greaves Limited & Anr. vs Daimler Chrysler India Pvt. Ltd. & Ors., c. c. no. 51 of 2006, decided by National Commission on 08.07.2016:

11. For the reasons stated hereinabove, the issue referred to the larger Bench is answered as follows:-

(a) If a car or any other goods are obtained or any services are hired or availed by a company for the use/personal use of its directors or employees, such a transaction does not amount to purchase of goods or hiring or availing of services for a commercial purpose, irrespective of whether the goods or services are used solely for the personal purposes of the directors or employees of the company or they are used primarily for the use of the directors or employees of the company and incidentally for the purposes of the company.

(b) The purchase of a car or any other goods or hiring or availing of services by a company for the purposes of the company amount to purchase for a commercial purpose, even if such a car or other goods or such services are incidentally used by the directors or employees of the company for their personal purposes.

8. This bench notes that no averment per se, that the subject vehicle was for the personal use of a director of the company, was made in the complaint.

The judgement cited by learned counsel for the complainant company does not provide any benefit to it, since, one, no averment was made in the complaint that the subject vehicle was not for commercial purpose of the company and was for the personal use, exclusively / principally, of a director of the complainant company, or, for that matter, of any other functionary of the complainant company, and, two, the complainant company has in no manner discharged its onus of establishing that the subject vehicle was for the personal use (exclusively / principally) of a director of the company (there is nothing whatsoever on record towards establish this).

9. This bench would want to refer to section 2 (1) (d) (i) & (ii) and section 3 of the Act 1986.

Section 2 (1) (d) (i) & (ii):

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 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.

Section 3 :

Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

10. The Act 1986 is for better protection of the interests of consumers, to provide speedy and simple redressal to consumer disputes.

Section 3 specifically provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. That is, the remedy provided under the Act is in addition to the provisions of any other law for the time being in force; the provisions of the Act give the consumers an additional remedy besides those that may be available under other existing laws.

Section 2 (1) (d) (i) & (ii) specifically stipulates “but does not include a person who obtain such goods for resale or for any commercial purposes” and “but does not include a person who avails of such services for any commercial purposes”.

The Explanation to section 2 (1) (d) stipulates that “ “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.”

“exclusively for the purpose of earning his livelihood by means of self – employment” in the Explanation to section 2 (1) (d) has to be adjudged rationally and logically with the due understanding and significance of “exclusively” and “livelihood” and “self-employment.” Reasonable and logical interpretation does not imply an approach of anyhow allowing any complainant into the meaning of ‘consumer’ under the Act 1986.

The Explanation to section 2 (1) (d) is clear. “exclusively for earning his livelihood by means of self-employment” has to be read with the due understanding and significance of “exclusively” and “earning his livelihood” and “by means of self-employment”. Reasonable and logical interpretation has to be kept limited and confined to reason and logic, not hypothised towards anyhow allowing any

one in. 11. The bench thus finds that the State Commission has rightly determined that the complainant is not a ‘consumer’ within the meaning of section (2) (1) (d) of the Act 1986. 12. The bench but explicitly clarifies that it has not gone into the merits of the dispute between the opposing sides. 13. The bench also makes it clear, in the present context, that section 2 (1) (d) (meaning of ‘consumer’) and section 3 (additional remedy to consumers) have to be understood in conjunction and perspective. It has to be noted that denial to avail additional remedy in consumer protection fora to a person who is not a ‘consumer’ does not take away or affect his right to agitate his case in an appropriate forum / court as per the law. (Conversely, the availability of additional remedy in consumer protection fora does not take away the option of a ‘consumer’ to agitate his case in any other appropriate forum / court.) 14. The complainant company is, thus, free to agitate its case in any appropriate forum / court as per the law (but consumer protection fora are not for it). 15. With the above discussion, the instant appeal is dismissed.