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Robin D'Souza, Goa v/s Mahindra Holidays & Resorts India Ltd., Chennai & Another

    F.A. No. 52 of 2016
    Decided On, 21 December 2016
    At, Goa State Consumer Disputes Redressal Commission Panaji
    By, MEMBER
    For the Appellants: S. Parab, Lr. Counsel. For the Respondents: J. Ramaiya, Lr. Counsel.

Judgment Text
U.V. Bakre, President

1. This appeal is directed against the Order dated 25/07/2016 passed by the Consumer Disputes Redressal Forum, South Goa ("The Forum", for short) in Complaint No. 40/2016. The Appellants were the Complainants whereas Respondents were the Opposite Parties (OPs) in the said Complaint. Parties shall hereinafter be referred to as per their status in the said Complaint.

2. Heard Ms. S. Parab, Lr. Counsel for the Appellants and Mr. J. Ramaiya, Lr. Counsel for the OPs. Both the parties have also filed written arguments. We have perused the record and proceedings also.

3. By impugned order, the Complaint has been dismissed at the stage of admission itself without issuing notice to the OPs. In paragraph 3 of the Complaint, the Complainants had pleaded that they were in business field dealing with electronic, security and surveillance and as such they were required to visit various places of business in India as well as abroad very often and that on many occasions they had faced problem of getting accommodation at their business points such as in Mumbai, Mahabaleshwar, Delhi, etc. as well as abroad. The Complainants, in paragraph 4 of the Complaint, had alleged that during a friendly talk with Mr. Sidney Alfred Fernandes, the Complainant No. 1 expressed his problems in securing accommodations in hotels/resorts during their business visits to various cities in India and abroad when Mr. Sidney told him about the OPs arranging/providing holiday suits/compartments for its members in various resorts in India as well as abroad. It was further averred in paragraph 12 of the Complaint that the Complainants had then purchased red season membership of the OP No. 1 to have facilities of reservation of one bedroom holiday suit/apartment as per the scheme, by effecting down payment of Rs. 3,37,500/- and by agreeing to pay the balance amount in 24 monthly instalments of Rs. 13,219/- each. In paragraph 14, the Complainants had averred that they had twice requisitioned the OPs for reservation and booking of one bedroom apartment/suit for them. The first requisition was made in the second week of August 2015 when the Complainants had arranged their tour to Mahabaleshwar and the second requisition was made in the first week of September 2015 to Bangkok and that the OPs turned down their requisitions on the ground that there was no accommodation and that the booking should be made four months in advance. The Complainants had further pleaded in paragraph 15 of the Complaint that the nature of their business commitments was such that they could not plan the tour four months in advance. Since the OPs had denied facilities of accommodation for the Complainants on two occasions, they had issued notice to the OPs and non-compliance of the same gave rise to the Complaint.

4. According to the Forum, the averments made in paragraphs 2 and 3 of the Complaint revealed that the Complainants did not come under the definition "Consumer" as defined under the Consumer Protection Act, 1986 (the 'Act', for short). The Forum observed that they did not find any averments made by the Complainants that services availed by them were exclusively for the purpose of earning their livelihood by means of self-employment. Therefore the Complaint was not admitted.

5. In our considered view, the Forum has committed gross error in disposing of the Complaint at the stage of admission itself. There was no need for the Complainants to plead that the services availed by them were exclusive for the purpose of earning their livelihood by means of self-employment. There was no averment in the Complaint to show that the services of the OPs were availed by the Complainants for the purpose of any employment or commerce. Merely because the Complainants are businessman and are required to visit various places for the purpose of their business for which they wanted accommodation at the business point that does not mean that they had purchased the membership of the OPs for obtaining accommodation for the purpose of their said business. The Complainants had nowhere pleaded that they had purchased the said membership to deal with their customers in the said hotel bedroom apartment/suit or that any business talks were to be held in the same. Similarly, it was not the case that the Complainant was to make profit from the said bedroom apartment/suit. The purchase of membership was for holiday entitlement. In fact, there was an averment in the Complaint that they could not plan their tour four months in advance due to their business commitments. In the case of "Laxmi Engineering Works v. P.S.G. Industrial Institute" (1995) 3 SCC 582, while explaining the meaning and ambit of the expression "any commercial purpose" with reference to the definition of the expression "consumer" in Section 2 (1) (d) of the Act, the Hon'ble Supreme Court has observed thus:-

"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 – 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 purpose to which the goods bought are put to."

6. In our considered view, none of the averments made in the Complaint were sufficient to establish at this stage only that the Complainants had availed the services of the OPs for commercia

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l purpose. The question was of fact to be decided in the facts of the case on merits. We are of the view that the OPs ought to have been notified about the Complaint and the said point ought to have been decided on merits. We are, thus, of the view that the Complaint ought to have been admitted. 7. In the result, the appeal is allowed. The impugned order is quashed and set aside. The Complaint is restored to the file of the Forum and the same stands admitted. The Forum shall furnish copy of the Complaint and annexures to the OPs on the next date fixed for appearance of the parties before the Forum and the OPs shall file written version within the time limit prescribed by the Act and the Forum shall dispose of the Complaint in accordance with law. Parties to appear before the Forum on 06/01/2017 at 10.00 a.m. Appeal allowed.