Lilavati Kirtlal Mehta Medical Trust And Another (S) v. Unique Shanti Developers And Others (S).

By this application complainant is seeking review of the order dated 01.03.2016 vide which consumer complaint filed by the complainants was dismissed as barred by limitation.

2. Learned counsel for the applicants/complainants has contended that order suffers from error apparent on the face of the record because while passing the order, Bench has proceeded on the premise that conveyance deed in respect of subject property was executed in favour of the complainant Trust in March 1996 whereas the document executed and registered was agreement to sale. We find merit in this contention. Therefore, in view of the aforesaid error on the face of record, order dated 01.03.2016 is recalled and consumer complaint is restored to its original number.

3. Arguments on admission heard. The complainant has filed the instant applicant alleging deficiency in service on the part of the opposite party in respect of a Buyer's agreement with following prayer:

“1. Pass an order directing the opposite party No. 1 to pay compensation to the complainant No. 1 to the tune of Rs. 7,65,95,400 (Rupees Seven Crore Sixty Five Lacs Ninety Five Thousand and Four Hundred Only) on account of annual loss of rent from 2002 till 2015 and on account of cost of reconstruction of the residential building called ‘Madhuvan’ bearing no. C-66 and 67, Shanti Park, Mira Road (East), Thane-401107 alongwith future loss of rent @ Rs. 35 lacs per years, and

a. Pass an order directing the opposite party No. 1 to constitute a cooperative society or company of purchasers of flats of ‘Madhuvan’ and to convey title of 29 flats to the complainant in accordance with Section 10 & 11 of the Maharashtra Ownership of Flats Act, 1963; and

b. Pass an order directing the opposite party No. 1 to pay an amount of Rs. 5,00,000 (Rupees Five Lacs only) on account of damages for harassment caused; and

c. Award costs of this litigation in favour of the complainant;

d. Pass any other order this Hon'ble Commission deems fit in the facts and circumstances of the case.”

4. The first question which arises for consideration is whether or not the complainant Trust is a consumer as envisaged under section 2(1)(d) of the Act. The term ‘consumer’ is defined in the Act as under;

2.(1)(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 purpose];

{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}.

5. Since this is a case relating to alleged deficiency in service, section 2(1)(d)(ii) is relevant. On reading of the aforesaid provision it is clear that so far as services are concerned, consumer is a person who hires or avails of services of the opposite party for consideration. Section carves out an inbuilt exception by providing that if the services are availed for commercial purpose, then the person hiring or availing the services is not a consumer. It is the case of the complainants that subject 29 flats were purchased for providing residential quarters to nurses employed in the Lilavati Hospital. Lilavati Hospital undisputedly is a reputed hospital and is being run on commercial basis. The question which needs consideration is whether the purchase of 29 staff quarters for residence of nurses would amount to hiring or availing of service of the opposite party for commercial purpose or otherwise?

6. Learned counsel for the complainant has contended that purchase of the aforesaid flats cannot be termed as hiring or availing of service for commercial purpose because primary purpose for the transaction was not to make profit but was only meant for residence of the nurses. We do not find merit in the contention for the reason that nursing service is the essential component for running of a big hospital like Lilavati Hospital. Providing of residence to the nurses obviously is directly connected to the commercial purpose of running the hospital because the residence is a facility provided to the nurses as a consideration for their working in the hospital. Thus, in our view, from the facts alleged in the complaint, it is clear that services of the opposite party were allegedly hired/availed for commercial purpose. Therefore, the complainant is not a consumer as envisaged under section 2(1)(d) of the Act. As the complainant is not a consumer, the complainant cannot invoke jurisdiction of the consumer forum by filing a consumer complaint. Thus, it is clear that complaint is not maintainable and liable to be dismissed.

7. We accordingly dismiss the complaint. It is, however, made clear that this order will not come in the way of the complainant to avail of his legal remedy by approaching appropriate forum on the same cause of action.