ASHA LUGANI vs PREMIER AUTOMOBILES LIMITED-O.P.

BRIEFLY the facts of the case are that the petitioner is the sole-proprietor of M/s Asha Fashions 1893, Uday Chand Marg, Kotla Mubarakpur, New Delhi-24. The firm has been exporting fashion garments for the last several years to the various countries. She, with the funds of the firm, purchased a Premier Padmini BU/AC car from respondent No. 2 Prem Nath Motors for a sum of Rs. 1,53,816/- . She took delivery of the car on 18.5.90. The car is being manufactured by respondent No. 1. Before taking delivery of the car, it is alleged, she found several defects and deficiencies in the car. She was informed by respondent No. 2 that the defects were of minor nature and would be repaired at the time of first service. On the assurance given by the respondent No. 2, she took delivery of the car.

IT is next pleaded that since the time the car has been delivered to the complainant, it has been giving trouble to her. There are various defects in the car, which could not be rectified by the respondents at the three services. Ultimately she left the car at the workshop of respondent No. 2 at Mandir Marg. She, it is alleged, was informed that the engine of the car required replacement and assured that the complete engine of the car would be replaced. However, neither the engine was replaced nor the car was properly repaired. The various defects in the car, it is further alleged, still persist. Consequently she has prayed that the respondents be directed to refund the sum of Rs. 1,53,860/- alongwith interest @ 24% p.a. from 4th May ''90 till the date of repayment of the amount alongwith rupees one lac as damages. The complaint has been contested by respondent No. 1. Respondent No. 2 has proceeded against ex-parte. In their written statement respondent No. 1 has inter-alia pleaded that the complainant is not a consumer. On 8th May''91 we directed the learned Counsel for the complainant to satisfy us that the Commission had jurisdiction to entertain the case. He was also directed to bring the balance-sheet and account books of the firm. Thereafter he made a statement on 27th May ''91 that the car was purchased by the complainant in the name of M/s Asha Fashions of which the com plainant was the sole proprietor and the price of the car had been paid out of funds of the proprietorship firm.

The question now arises for determination is whether the complainant is a ''consumer'' as defined in Section 2(1)(d) of the Consumer Protection Act and has a right to file the complaint. The learned Counsel for the complainant has argued that the complainant is the sole proprietor of the firm and the car was purchased by her for personal use and therefore she was a ''consumer''. In support of his contention he has placed reliance on a decision of the Rajasthan State Commission in Jaheed Hussain v. Lohia Auto Pvt. & Ors. I (1991) CPJ 56. On the other hand the learned Counsel for the respondent has argued that the car was purchased out of the funds of the firm and the price of the car has been reflected in its account books. In the circumstances it cannot be said that the car has not been purchased for commercial purposes. To support his arguments he has placed reliance on a decision of the National Commission in M/s Lohia Starlingers v. M/s Jayant Computer Ltd. original petition of 39/89 decided on 11th December, 89 I (1991) CPJ 145 (NC).

WE have duly considered the arguments of the learned Counsel. The word ''consumer'' has been defined in Section 2(1)(d) as follows:- ''Consumer'' means any person, who, - (1) buys any goods for a consideration but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) From a bare reading of the definition, it is evident that if a person purchases goods for commercial purpose he cannot be termed as a ''consumer''. The car as already mentioned above, has been purchased by the complainant out of the funds of the firm and it has been registered in the name of the firm. That shows that it has been purchased for a purpose of the firm. If some goods have been purchased by a firm these will be deemed to have been purchased for the business activity. Even if the car is used on some occasions by the complaint for herself that would not change the nature of the transaction so far as the Consumer Protection Act is concerned. It does not matter whether the firm is a partnership firm or a proprietorship firm of the complainant. In the circumstances it cannot be said that the car has been purchased for personal use of the complainant. It was observed in Lohia Starlinger''s case (supra) as follows:- "The Counsel for the complainant admitted that the cost of the computer system formed part of the assets in the balance sheet of the complainant company, the cost of maintenance and operation and depreciation of the computer system were charged to the Profit & Loss Account of the complainant company, and that the expenses on account of depreciation operation and maintenance from the part of the overhead costs of the products manufactured and sold by the complainant company. This leaves no room for doubt whatsoever that the computer system was and is being used for commercial purpose and had been acquired as such. In fact, in his affidavit of 22nd November, 1989, the Sr. Manager (Systems) of the complainant company had stated "I am using the computer system delivered by the opposite party for purpose of the complainant''s business..."

WE are bound by the observations of the National Commission. The case referred to by the learned Counsel for the complainant has no application to the facts of the present case. In that case a truck was registered as a public carrier. It was held that it was purchased for commercial purpose. WE do not think that the Counsel for the complainant can take any benefit from the observations in this case. We are, therefore, of the view that the complainant is not a consumer, and therefore, she cannot file the complaint. For the aforesaid reasons we dismiss the complaint with no order as to costs. Complaint dismissed.