M/s. International Tractors Ltd. vs Pal Constructions Company and Another

J.P. Singh, J.—Saddled by the Jammu and Kashmir State Consumer Disputes Redressal Commission, Jammu, hereafter 'the State

Commission' with liability to pay Rs. 12,95,650/- along with interest at the rate of 8% per annum to M/s. Pal Construction Company-respondent

No. 1 for deficiency in service of Sonalika Mustang Heavy Duty Back Hoe Loader, purchased by respondent No. 1 from it through Jammu

Motors Private Limited-respondent No. 2, the Appellant-M/s. International Tractor Limited is in appeal against the Commission's order dated

15.12.2010.

The State Commission was moved by respondent No. 1 with its Complaint against the appellant and its Agent alleging surfacing of

manufacturing defects in Sonalika Mustang Heavy Duty Back Hoe Loader, referred in the Complaint, as JCB Machine, within two and half months

of its purchase, which were not attended to by the appellant, despite its Agent's noticing defects in the machinery supplied by the appellant to

respondent No. 1 and claiming refund of Rs. 12,95,650/-, the cost of the Machinery along with interest at the rate of 18% per annum, besides

compensation of Rs. 2.00 lac, for, the machinery was rendered incapable of use.

The appellant contested the respondent's Complaint alleging misuse of Machinery and non-following of the instructions contained in the Manual

for use of Machinery, by respondent No. 1, besides raising the issue that having purchased the Machinery for commercial purposes, the

Commission would have no jurisdictional competence to determine respondent No. 1's Complaint, who was not a consumer under the Jammu and

Kashmir Consumer Protection Act.

The appellant, however, did not lead any evidence in support of the case set up by it in response to the respondent's Complaint. Therefore,

relying on the evidence produced by respondent No. 1, the State Commission directed the appellant to pay respondent No. 1 the amount claimed

by it as cost of the Machinery along with interest @ 8% per annum.

Learned counsel appearing for the appellant submitted that respondent No. 1, being a commercial concern and having purchased the Machine

for commercial purposes, was not 'Consumer' as defined in Section 2(d) of the Jammu and Kashmir Consumer Protection Act, 1986, as explained

in the Explanation appended thereto and the Machine having been purchased by it for commercial purposes, respondent No. 1's Complaint before

the Commission was not maintainable and the order made by the State Commission was, therefore, without jurisdiction, in that, the State

Commission could address the Complaint of only those Consumers, who fall within the expression Consumer as defined in the Act.

Responding to the submissions made by the appellant's learned counsel and referring to the law laid down by Hon'ble Supreme Court of India in

Laxmi Engineering Works v. P.S.G. Industrial Institute, reported as (1995) 3 Supreme Court Cases 583 and Karnataka Power Transmission

Corpn. and Another Vs. Ashok Iron Works Pvt. Ltd., , the learned counsel appearing for respondent No. 1 submitted that the issue raised by the

appellant being no longer res integra and concluded by the judgments referred to hereinabove, the appellant's Appeal was without substance.

We have considered the submissions made by learned counsel for the parties and perused the records of the State Commission and the order

made by it.

We find sufficient force in the submissions of the respondent's learned counsel that the issues raised by the appellant, may not survive for

consideration in the Appeal in view of the legal position settled by Hon'ble Supreme Court of India in the judgments referred to hereinabove.

The facts as pleaded and proved by respondent No. 1 amply demonstrate that the Machine in question was purchased by the respondent for

doing its business to earn for it. There being no evidence by the appellant to disprove the above fact pleaded and proved by the respondent,

respondent No. 1's case is thus clearly covered by one of the illustrations appearing in the case of Laxmi Engineering Works (Supra), where it was

indicated as follows:

...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 purpose of the Act. The explanation reduces the question, but is a 'commercial purpose',

to a question of fact to be decided in the facts of each case.

The appellant's next plea that being not a living person and, on the other hand, having the trappings of a Company/Firm, respondent No. 1 was

not a 'consumer' and the Complaint before the Commission was, therefore, not maintainable, too may not need consideration as this issue also

stands concluded by Hon'ble Supreme Court of India in Karnataka Power Transmission Corporation Limited's case (supra), where, holding that

the expression 'person' as used in the Act, does not exclude the Companies/Firms, their Lordships observed and held as follows:

The question that falls for our determination is: is a private limited Company a person as contemplated u/s 2(1)(d). The contention of the

learned counsel for the KPTC is that persons specified and enumerated in Section 2(1)(m) are the only categories of persons covered by that

clause and a company incorporated under the Companies Act is not covered thereunder. The learned counsel would submit that a company is

excluded from the definition of 'person' since the object of the Act, 1986 is to provide an affordable remedy to individuals or four categories of

collectivities or associations of individuals which may constitute legal entities for suing or being sued. According to learned counsel, the companies

incorporated were never intended to be covered by Act, 1986 as they could always pursue the ordinary remedy provided in law. The learned

counsel also submitted that the word 'includes' must be read as 'means'. In this regard, the learned counsel placed reliance upon two decisions of

this Court namely; (1) The South Gujarat Roofing Tiles Manufacturers Association and Another Vs. The State of Gujarat and Another, (2)

Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. and Others,

Lord Watson in Dilworth v. Commissioner of Stamps (1899) AC 99made the following classic statement:

The word include is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the

statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their

natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another

construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of

adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an

exhaustive explanation of the meaning which, for the purposes of the Act, @ page-Sc 1908 must invariably be attached to these words or

expressions.

Dilworth (supra) a few other decisions came up for consideration in Peerless General Finance and Investment Co. ltd. and this Court

summarized the legal position that inclusive definition by the Legislature is used; (one) to enlarge the meaning of words or phrases so as to take in

the ordinary, popular and natural sense of the words and also the sense which the statute wishes to attribute to it, (two) to include meaning about

which there might be some dispute; (three) to bring under one nomenclature all transactions possessing certain similar features but going under

different names.

It goes without saying that interpretation of a word or expression must depend on the text and the context. The resort to the word includes by

the Legislature often shows the intention of the Legislature that it wanted to give extensive and enlarged meaning to such expression. Sometimes,

however, the context may suggest that word 'includes' may have been designed to mean 'means'. The setting, context and object of an enactment

may provide sufficient guidance for interpretation of word 'include' for the purposes of such enactment.

Section 2(1)(m) which enumerates four categories namely, (i) a firm whether registered or not; (ii) a Hindu undivided family; (iii) a co-operative

society; and (iv) every other association of persons whether registered under the Societies Registration Act, 1960 (21 of 1960) or not while

defining person cannot be held to be restrictive and confined to these four categories as it is not said in terms that 'person' shall mean one or other

of the things which are enumerated, but that it shall 'include' them.

The General Clauses Act, 1987 in Section 3(42) defines 'person':

Person shall include any company or association or body of individuals whether incorporated or not.

Section 3 of the Act, 1986 upon which reliance is placed by learned counsel for KPTC provides that the provisions of the Act are in addition

to and not in derogation of any other law for the time being in force. This provision instead of helping the contention of KPTC would rather suggest

that the access to the remedy provided to the Act of 1986 is an addition to the provisions of any other law for the time being in force. It does not in

any way give any clue to restrict the definition of the 'person'.

Section 2(1)(m), is beyond all questions, an interpretation clause, and must have been intended by the Legislature to be taken into account in

construing the expression 'person' as it occurs in Section 2(1)(d). While defining 'person' in Section 2(1)(m), the Legislature never intended to

exclude a juristic person like company. As a matter of fact, the four categories by way of enumeration mentioned therein is indicative, categories

(i), (ii) & (iv) being unincorporate and category (iii) corporate, of its intention to include body corporate as well as body unincorporate. The

definition of 'person' in Section 2(1)(m) is inclusive and not exhaustive. It does not appear to us to admit of any doubt that company is a person

within the meaning of Section 2(1)(d) read with Section 2(1)(m) and we hold accordingly.

In view of the legal position settled by the Hon'ble Supreme Court of India on both the issues urged by the appellant's counsel to question the

judgment of the State Commission against the appellant, we find no merit in the Appeal additionally because the facts proved by respondent No. 1

before the State Commission demonstrate that Sonalika Mustang Heavy Duty Back Hoe Loader, supplied by the appellant to respondent No. 1

did not work despite appellant's attempt to make it functional, to the respondent's satisfaction and in this view of the matter, the Commission was

right in directing the appellant to pay the cost of the machinery that it had supplied to respondent No. 1, along with interest @ 8% per annum. This

Appeal is, accordingly, found without merit, hence dismissed with costs quantified at Rs. 10,000/-.