TRAVELS And TRADES PVT. LTD. vs SWARAJ MAZDA LTD.

BRIEFLY facts of the case are that the petitioner is carrying on business of organising and operating tours of all natures by coaches, mini- coaches, cars and other type of vehicles.

RESPONDENT No. 1 is the Managing Director of M/s Swaraj Mazda Limited Chandigarh, which manufactures Air-conditioned mini-coaches and sells them. RESPONDENT No. 2 is the Managing Director of M/s Inderson Motors (P) Ltd. which is an authorised dealer of M/s Swaraj Mazda Limited. RESPONDENT No. 3 is financier and had been advancing money to the petitioner. The petitioner placed an order for supply of two factory built air-conditioned mini- coaches, with the first respondent through the second respondent. The price agreed between the parties for each coach was Rs. 4,26,085/- including extra fittings. The total amount of Rs. 8,52,170/- was advanced by respondent No. 3. It is alleged that the coaches were agreed to be supplied in the first week of January, 1989, but inspite of repeated reminders the delivery was not given to the petitioner at the agreed time.

In the month of March, 1989, respondent No. 1 demanded through respondent No. 2 an additional amount of Rs. 72,000/- on account of increase in price of the vehicles. The petitioner paid an amount of Rs. 12,000/- to respondent No. 2 for onward transmission of the same to respondent No. 1. It further arranged an amount of Rs. 60,000/- from respondent No. 3 and paid the same to respondent No. 1 through respondent No. 2. Out of an amount of Rs. 72.000/-. respondent No. 2 returned an amount of Rs. 4,000/- to the petitioner as rebate.

ON 25th March, 1989, first air-conditioned mini-coach was delivered to the petitioner by respondent No. 2 and on 1st April, 1989, second mini-coach was delivered by him. The coaches, it is alleged, remained off the road for a period of about 240 days on account of which the petitioner suffered a loss of about Rs. 1,60,000/-. The petitioner informed respondent Nos. 1 & 2 about the defects which they failed to rectify for a period of about one year. It is further alleged, that they requested the petitioner to send the two coaches to the Factories of respondent Nos. 1 & 2 at Ropar & Jullundhur. The petitioner sent the coaches there as required by the respondents. Still, the defects could not be rectified by the respondents during the last one year. Due to repeated break-down of the coaches in addition to other losses, the petitioner suffered loss of reputation which it has assessed at Rs. 1,00,000/-. A total amount of Rs. 5,46,250/- has been claimed by the petitioner from the respondent Nos. 1 & 2 on account of losses suffered by it. The petitioner has further claimed an amount of Rs. 1,23,952/- from the said respondent Nos. 1 & 2 so that it may be able to repay the instalments which have become due to respondent No. 3.

THE case was listed on 11.9.90 before the Commission. It was ordered on that date that the petitioner in the 1st instance should satisfy the Commission that the complaint was maintainable under the provisions of the Consumer Protection Act. 1986 (hereinafter referred to the Act). At the request of the learned Counsel, they were given time to prepare the arguments. Preliminary question that arises for determination is whether the present complaint is maintainable under the Act. From the complaint, it is clear that the complainant is carrying on the business of organising tours of coaches, mini-coaches, cars and other types of vehicles. In order to determine the question it is to be seen in the 1st instance, whether the petitioner is a complainant as defined in the Act. The word ''complaint'' has been defined in Section 2(d) as follows:- " ''complainant'' means (i) a consumer; or (ii) x x x x x x (iii) x x x x x x x "

The word ''consumer'' has been defined in Section 2(d), which reads as follows: " ''consumer'' means any person who, - (i) buys any goods for consideration............ but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) x x x x x x x x" (emphasis laid by underlining). It is evident from the words ''but does not include a person who obtains such goods for resale or for any commercial purpose'', that if a person acquires any goods for resale or for any commercial purpose, he does not fall within the definition of ''consumer''. Word ''commercial'' has not been defined in the Act. We have, therefore, to fall back on the meaning of the word as given in the dictionary. In the Concise Oxford Dictionary, 1989 Edition the meaning of word ''commercial'' have been given as; of engaged in, bearing on, commerce; interested in financial return rather than aristry''. The word ''commerce'' has been defined as, ''exchange of merchandise or services, especially on large scale''. In Chambers English Dictionary 1988 Edition, the definition of the word ''commercial'' and ''commerce'' are as follows: - Commercial -"pertain to commerce; having profit as the main aim (sometimes implying disregard of quality)".

Commerce -"Interchange of merchandise on large scale between nations or individuals". It is thus clear from the above definitions that if a person buys the goods for earning profit on a large scale, by their use he will be deemed to be carrying on commercial activity and cannot be termed as consumer. So if mini-buses are purchased for commercial purposes, by a person, he cannot be said to be a consumer.

IN the above view we are fortified by the observations of the National Commission in M/s Oswal Fine Arts v. M/s H.M.T. Madras I (1991) CPJ 330 (NC). IN that case a machine was purchased by the complainant from the respondent, which was allegedly defective. The complainant claimed damages amounting to one crore 60 lacs and odd. An objection regarding the jurisdiction of the Commission was taken. The learned Commission came to the conclusion that the Company was not a consumer. The relevant observations of the Commission are as follows:- "There is yet another insuperable obstacle disentitling the complainant to approach this National Commission with a claim for compensation, namely, that he is not a "consumer" as defined in Section 2(1)(d)(i) of the Consumer Protection Act, 1986. Admittedly, the machinery in question was purchased by the complainant for the purpose of its use in his Oswal Fine Arts Printing Press which is a commercial establishment. A person who obtains goods for a commercial purpose is specifically excluded from the scope of the expression "consumer" by the definition contained in Section 2(1)(d)(i).

THE second case in which the National Commission expressed opinion is Prestige Stones v. M/s Sharma Industries (Original petition No. 25 of 1989 decided on 15.9.1989). It was disposed of by the Commission with a short order which reads as follows: - "This complaint has to be rejected on the short ground that the purchase of the granite processing machine made by the Complainant was for a commercial purpose and the Complainant is, therefore, not a ''consumer'' as defined under the Act. THE petition is, accordingly, dismissed. THEre will be no order as to costs. Similar view was taken by National Commission yet in another case M/s Lohia Starlinger Ltd. v. M/s Zenith Computers Ltd. I (1991) CPJ 145 (NC). In that case the complainant purchased a Computer system for the commercial purpose. A similar question arose there, which was decided by the Commission in the following terms: - "The Counsel for the Complainant vehemently argued that the computer system had not been acquired for commercial purpose, that it was not being used for commercial purposes, to increase the production, to cut down the costs of production or to promote sales, that at best, it could be deemed to have been used to computerise the performance of certain activities in the company which hitherto were being done manually and that it could not be fairly and correctly maintained that the computer was purchased and being used for commercial purpose. He, therefore, submitted that the Complainant was a bonafide consumer as defined in the Act and that the Commission had full jurisdiction to entertain this case. 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 form 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 purposes and had been acquired as such. In fact, in his affidavit of 22nd November, 1989, the Sr. Manager (System) of the complainant company had stated "I am using the computer system delivered by .the opposite party for purposes of the complainant''s business........".

The Commission is, therefore, fully satisfied that the complainant company had bought the computer system for a commercial purpose and is, therefore, not a ''consumer'' as defined in the Consumer Protection Act. The complaint, therefore, is not maintainable before this Commission and is accordingly dismissed.

We are in respectful agreement with the above observations. After taking into consideration the facts and circumstances of the case, we are of the view that the complainant is not the consumer and therefore, the present complaint is not maintainable by it. Accordingly, the complaint is rejected with no order as to costs. Complaint rejected.