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Complainant No.1 is a Doctor.
He admittedly is running a clinic at 112-13, Ashoka Super Market,
Junction of S.V. Road and Aarey Road, above Bata Show-Room, Goregaon
West, Mumbai. The instant complaint has been filed on the allegation that
the complainants booked a commercial space in the development project
(Krishna Ambika Arcade) at S.V. Road, Goregaon (West), undertaken by the
opposite party developer.
2.
It is the case of the complainants that although they have paid Rs.2,64,13,182/-
against the consideration amount, the opposite party developer has not
given the possession of the premises despite expiry of stipulated time
for delivery of possession.
3.
On going through the complaint, prima-facie it appears that the complainant
does not fall within the definition of consumer in view of exception
carved out in the definition of consumer as provided under Section 2 (1)
(d) of the Consumer Protection Act, 1986 (in short, “the Act”). We have,
therefore, heard arguments on the issue of maintainability of the
complaint.
4.
Before adverting to the arguments of learned counsel for the complainant,
we deem it necessary to produce the definition of consumer as provided
under Section 2 (1) (d) of the Act. The definition reads 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”
5.
On reading of the above, it is clear that consumer is a person who buys
goods or hires or avails of services for consideration present, past or
future. The section however carves out an exception by providing that the
person who has purchased goods or hired/availed of services for
commercial purpose, shall not be included in the definition of consumer.
The explanation to Section 2 (1) (d) however gives restricted meaning to
the term “commercial purpose” in the context of Section 2 (1) (d) by
providing that if the goods are bought or services are hired or availed
exclusively by the complainant for earning his livelihood by way of
self-employment, it shall not be treated as commercial purpose.
6.
On perusal of the complaint it appears that it is not the case in which
the complainants have hired or availed the services of the opposite
parties exclusively for the purpose of earning livelihood by means of
self-employment. The following allegations in the complaint support our
view: -
“The Complainant No.l, offers various diagnostic
services from his abovementioned clinic which was set up in the year
1994.The Complainant No.l offers the following services viz: Digital
X-ray, Digital Sonography, Whole Body Colour Doppler Sonography, 2D
Colour Echo Cardiography, Digital OPG, Digital Lateral Cephalogram, 3D
& 4D Sonography and various other pathology services.
The Complainant No.l
has a staff of 10 people in the said clinic. The said staff also includes
one associate Doctor. The said clinic of the Complainant No.l admeasured
only 850 Sq.ft. and was insufficient for carrying on various activities
listed above. Further there was no facility in Goregaon (W) area
which provided for C.T. Scan and M.R.I. in the year
2003. The Complainant No.l being Radiologist saw this as an
opportunity to establish a state of the art Radiology Centre in
Goregaon (West). For the said purpose complainant’s existing clinic was
wholly insufficient as the set up for a C.T. Scan requires atleast 500
Sq.ft. area and set up for M.R.I. requires atleast 800 Sq.ft.”
7.
On reading of the above, it is clear that complainant No.1 is a
Radiologist having a clinic with a staff of 10 persons including associate
Doctors. Thus, it is clear that before hiring or availing the services of
the opposite parties, complaint No.1 was running business of Radiologist
with the assistance of associate Doctors and support staff. This clearly
indicates that the complainant No.1 was not only earning livelihood
before booking of the commercial premises but he was also providing
employment to 10 persons. That being the case, the case of the
complainants does not fall within the explanation to Section 2 (1) (d) of
the Act. In aforesaid view, we are supported by the judgment of Hon’ble
Supreme Court in the matter of Lakshmi Engineering Works vs. P.S. G.
Industrial Institute (1995) 3 SCC 583. Relevant observation of
Hon’ble Supreme Court reads as under: -
“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.
8.
In view of the discussion above, the complainants do not fall within the
definition of consumer. As such they have no locus standi to maintain the
consumer complainant. Complaint is accordingly rejected with the
observation that this order will not prevent the complainants from
availing of their legal remedy before the appropriate Forum on the same
cause of action.
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