NPX Tower Owners Association v. HI-Lead Infotech Pvt. Ltd. - (National Consumer Disputes Redressal Commission) (16 Aug 2016)

If goods bought or services hired or availed by a person for commercial purpose, then said person would not be consumer

MANU/CF/0319/2016

Consumer

Consumer complaint alleging deficiency in service on part of opposite party in respect of Builder-Buyer Agreement executed between members of association and opposite party in respect of shops/offices/food court space booked by them in development project undertaken by opposite party. It was alleged that, 53 members of complainant association were consumers qua the commercial space booked by them because they had booked commercial space with intention of using the same for self-employment in order to earn their livelihood.

On reading of complaint, question arises as to maintainability of consumer complaint because prima facie members of complainant association on whose behalf complaint has been filed do not appear to be consumers as envisaged under Section 2 (1) (d) of Consumer Protection Act, 1986.

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. Section, however, carves out an exception to above definition by providing that, if goods are bought or services are hired or availed for commercial purpose, then said person would not be consumer. Explanation to Section 2 (1) (d) however, gives a restricted meaning to term 'commercial purpose' by providing that, commercial space does not include used by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood.

A consumer association can also file a consumer complaint on behalf of one or more consumers in relation to goods sold or delivered to them or services provided or agreed to be provided to them. This implies that, consumer association can act only in representative capacity on behalf of aggrieved consumers. Therefore, complainant association in order to succeed in this complaint firstly have to establish that 53 persons on whose behalf instant complaint had been filed were consumers or anyone of them is a consumer. It is highly improbable that 53 persons on whose behalf the complaint has been filed had booked commercial spaces exclusively for establishing their shops/offices for earning their livelihood by way of self-employment. Some of noted complainants on query submitted that, they were earning livelihood either because of their present employment or by running their offices from home or from rented space, which belies allegation in complaint that, all 53 persons on whose behalf complaint had been filed were covered under explanation to Section 2(1)(d) of Act.

Complainant failed to show that, complainants represented in present complaint were consumers as defined under Section 2(1)(d) of Act, 1986. Therefore, common complaint on behalf of all 53 complainants amounts to misjoinder of parties and the causes of action. Instant complaint was not maintainable because persons on whose behalf complaint had been filed were not consumers as defined under Section 2(1)(d) of Act, 1986.

Relevant : Section 2 (1) (d) of Consumer Protection Act, 1986

Tags : DEFICIENCY OF SERVICE COMPLAINT MAINTAINABILITY