S.M. Kantikar ORDER
Ajit Bharihoke, J. (Presiding Member)
1. M/s. N P X Tower Owners Association through its Secretary Deepak Agrawal has filed consumer complaint against M/s. Hi-Lead Infotech Pvt. Ltd. alleging deficiency in service on the part of the opposite party in respect of Builder-Buyer Agreement executed between the members of the association and the opposite party in respect of shops/offices/food court space booked by them in the development project undertaken by the opposite party. It is alleged that the 53 members of the complainant association are consumers qua the commercial space booked by them because they had booked the commercial space with the intention of using the same for self-employment in order to earn their livelihood.
2. On reading of the complaint, the question arises as to maintainability of consumer complaint because prima facie the members of the complainant association on whose behalf the complaint has been filed do not appear to be consumers as envisaged under section 2 (1) (d) of the Consumer Protection Act, 1986. Therefore, at the outset, we have heard arguments on maintainability of the complaint.
3. Before adverting to the arguments on behalf of the complainants, we deem it appropriate to have a look on the definition of 'consumer' as provided in section 2 (1) (d) of the Act. The relevant Section 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."
4. On reading of the above, it is clear that a person is a consumer who buys any goods or hires or avails of any service for a consideration whether paid or partly paid or promised to be paid. The section, however, carves out an exception to the above definition by providing that if the goods are bought or the services are hired or availed for commercial purpose, then the said person would not be consumer. The explanation to section 2 (1) (d) however, gives a restricted meaning to the term 'commercial purpose' by providing that commercial space does not include the used by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood.
5. Learned counsel for the complainant-association has firstly contended that definition of consumer as envisaged under Section 2(1)(b) of the Consumer Protection Act, 1986 will not come into play in this case because the instant complaint has been filed by a consumer association which has been expressly empowered under Section 12(1)(b) to raise a dispute before the consumer fora.
6. In order to appreciate the contention of the learned counsel for the complainant it would be useful to have a look on Section 12(1)(b):
"12. Manner in which complaint shall be made- (1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by-
1. any recognized consumer association whether the consumer to whom the good sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;
2. one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
3. the Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general."
7. On reading of the above it is clear that a consumer association can also file a consumer complaint on behalf of one or more consumers in relation to the goods sold or delivered to them or services provided or agreed to be provided to them. This implies that the consumer association can act only in representative capacity on behalf of aggrieved consumers. Therefore, the complainant association in order to succeed in this complaint firstly have to establish that 53 persons on whose behalf the instant complaint has been filed are consumers or anyone of them is a consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.
8. The case of the complainant is that the 53 persons on whose behalf the complaint has been filed are consumers in view of the explanation to Section 2(1)(d) which provides 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 purposes of earning his livelihood by means of self-employment. Learned counsel for the complainant association has contended that the 53 persons on whose behalf the complaint has been filed had booked the commercial spaces with the intention to use the said commercial spaces exclusively for setting up their establishments/offices, etc. for earning their livelihood. The above said plea in itself is not acceptable for the reason that it is highly improbable that 53 persons on whose behalf the complaint has been filed had booked the commercial spaces exclusively for establishing their shops/offices for earning their livelihood by way of self-employment. Some of the above noted complainants namely, Mr. Surender Kharia, Mr. Deepak Aggarwal, Mr. Pankaj Nagalia, Ms. Kamla Jha are present. They, on our query have submitted that they are earning livelihood either because of their present employment or by running their offices from home or from rented space, which belies the allegation in the complaint that all the 53 persons on whose behalf the complaint has been filed are covered under the explanation to Section 2(1)(d).
9. Learned counsel for the complainant has contended that the issue whether or not the above noted 53 persons are covered under the explanation to Section 2 (1) (d) is a question of fact which requires evidence to prove. In this regard it is pertinent to note that the complainant association in support of the complaint has filed affidavits of all the 53 persons who had booked commercial space in the project undertaken by the opposite party. We have gone through the said affidavits which are cryptic and vague. In neither of the affidavits there is a specific averment that the person who has sworn the affidavit had booked the commercial space with the intention to use that space for the purpose of earning livelihood by way of self-employment. Thus, we find no merit in the contention of the learned counsel for the complainant.
10. In view of the discussion above the complainant has failed to show that the complainants represented in this complaint are the consumers as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. Otherwise also, 53 persons on whose behalf the complaint has been filed are seeking benefit of explanation to Section 2(1)(d), therefore, in order to succeed each one of them would be required to discharge the onus of establishing that they are covered under explanation to Section 2(1)(d) which would require distinct independent evidence qua each complainant. Therefore, common complaint on behalf of all 53 complainants amounts to misjoinder of parties and the causes of action. On this count also the complaint is liable to be dismissed.
11. In view of the above discussion we are of the considered view that the instant complaint is not maintainable because the persons on whose behalf the complaint has been filed are not the consumers as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. The complaint is, therefore, dismissed in limine. It is, however, made clear that this order will not come in the way of the individual complainants to avail of appropriate legal remedy by approaching the appropriate forum having jurisdiction.
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