Purchasers of goods for commercial purposes can be considered consumers in respect of services rendered or to be rendered during the warranty period, as per the interpretation of Section 2(1)(d)(ii) of the Consumer Protection Act.

ORDER

R.K. Batta, Presiding Member - The complainant, Modern Constructions, which is a partnership firm, had purchased TPH computerized HOT MIX PLANT from O.P.-Meera Industries on 2.11.2005 on payment of Rs. 18.72 lakh. According to the complainant, the said TPH computerized HOT MIX PLANT could not start operation from inception in spite of efforts being made by the technicians/engineers of OP. The engineers of O.P. failed to put the machine in operation in spite of their best efforts for a prolonged period. The complainant, therefore approached the State Commission seeking refund of the total cost of the TPH computerized HOT MIX PLANT to the tune of Rs. 27,71,578 with 18% interest thereon from 3.11.2005 till the filing of the application and further interest thereon. The opposite party in their written submissions had contended that the TPH computerized HOT MIX PLANT was purchased for commercial purpose for earning huge profit and the complainant was not a consumer on account of which, the complaint was not maintainable.

2. The State Commission had taken note of the fact that the complainant had ventured into a big commercial project and for execution of the project had purchased the TPH computerized HOT MIX PLANT for earning profit. Regarding the contention of the complainant that they are consumers with the ambit of Section 2(1)(d) since the TPH computerized HOT MIX PLANT was purchased for earning livelihood and for self-employment, it was held that the complainant cannot directly take shelter under Section 2(1)(d) of the Consumer Protection Act. However, relying upon judgment of this Commission in Amtrex Ambience Ltd. v. M/s. Alpha Radios and Anr., (1996) 1 CPJ 324 (NC), the State Commission held that the purchaser becomes consumer in respect of services rendered or to be rendered by the manufacturer or supplier during the warranty period. Accordingly, it was held that though the TPH computerized HOT MIX PLANT was sold for commercial purpose, yet the purchaser would certainly be a consumer under Section 2(1)(d)(ii) of the CP Act in respect of services rendered or to be rendered by the consumer for the proper functioning of the machinery/equipment during the period of warranty and as such, the complaint was maintainable.

3. It appears that subsequently, O.P. filed petition on 24.4.2007 for further clarification of order dated 28.3.2007 on the ground that the decisions cf the National Commission on which reliance was placed in order dated 28.3.2007 were in connection with the un-amended Section 2(l)(d)(ii) of the Act and after the amendment which came into effect from 15.3.2003, the position has changed considerably. The State Commission made it clear that though it would hear the petition filed on 24.4.2007, there would be no order modifying or reviewing order dated 28.3.2007, since the State Commission has no power to review its own order. The State Commission referred to other judgments of the National Commission and held that order dated 28.3.2007 was passed on correct appraisal of the complaint and was a reasoned order. The view taken in order dated 28.3.2007 was in fact reiterated by order dated 7.5.2007 and it was held that the complainant was very much a consumer in terms of Section 2(1)(d)(ii) since the defects had arisen within the warranty period. These orders are subject matters of revision before us.

4. The short controversy, which has been raised in this revision, is when goods are purchased for commercial purpose whether the purchaser would be consumer during the warranty period in terms of Section 2(1)(d)(ii) of the Act. According to learned Counsel for the petitioner, the amendment to Section 2(1)(d)(ii) of the Act, which came into effect from 15.3.2003, excludes a person who avails of service for any commercial purpose. According to learned Counsel for the petitioner, warranty is a kind of service and would fall within the ambit of services as contained in Section 2(1)(d)(ii) of the C.P. Act. Learned Counsel fo