MOHAN M.SHANTANAGOUDAR, J. - (1.) This appeal arises out of judgment of the National Consumer Disputes Redressal Commission ('National Commission') dated 25.10.2016 dismissing the Appellant's Review Application No. 76/2016 against the order dated 1.3.2016 by which the National Commission dismissed the Appellant's Consumer Complaint No. 117/2016.
(2.) The Appellant's case is that Respondent No. 1/Opposite Party No. 1 had developed two buildings 'Madhuvan' with thirty two '1 BHK' flats in colony 'Shanti Park' in Thane, Maharashtra. Out of these the Appellant/complainant trust took possession of 29 flats for provision of hostel facilities to nurses employed by Lilavati Hospital, which is run by the Appellant trust. 29 agreements to sell were executed in respect of each flat on 25.11.1995, which were registered on 16.3.1996, and entire consideration amount was paid for the same. The architect issued completion certificate in respect of the flats on 17.2.1997. The flats were used for the purpose of hostel facilities till 2002. However, within 2-3 years of completion of the project, because of alleged poor building quality, the structure became dilapidated. The appellant vacated the flats in 2002 and since 2004, the flats are lying unused. In the meanwhile, an interim Board of Trustees was constituted by this Court by order dated 21.5.2014 in SLP No. 3772/2014, which is a separate litigation concerning dispute over control of the appellant trust between different groups of trustees. The aforesaid interim Board of Trustees called for a structural report from M/s Raje Consultants, which submitted their report in September 2015 finding that the cost of repairs would be more than the cost of reconstruction. The appellant also claims that Respondent No. 1 obtained the occupation certificate for the flats by playing fraud upon the local municipal corporation. Hence the appellant filed Consumer Complaint No. 117/2016 before the National Commission claiming Rs 7,65,95,400/- in compensation on account of annual loss of rent from 2002 to 2015, cost of reconstruction of building 'Madhuvan' and future loss of rent of Rs 35,00,000/- per year, along with Rs 5,00,000/- in damages. Initially, the National Commission by order dated 1.3.2016 dismissed the complaint as barred by limitation on the ground that cause of action for raising the complaint arose in 2004, the year since when the flats are lying unused; however the complaint was filed in 2016. Under Section 24A of the Consumer Protection Act, 1986 ('1986 Act') the period of limitation for filing a complaint is two years, hence the complaint was time-barred. The National Commission further held that the pending litigation between the trustees in SLP No. 3772/2014 (supra) is not sufficient to explain the delay as the dispute concerning constitution of Board of Trustees of the appellant trust arose in 2014 whereas it was not the appellant's case that there was no competent Board of Trustees in 2004 when the cause of action arose. Subsequently the National Commission in the impugned judgment, hearing Review Application No. 76 of 2016 against the order dated 1.3.2016 (supra), found that it had incorrectly recorded in the aforesaid order that 'conveyance deeds' of the 29 flats were registered on 16.3.1996, whereas what was registered by the appellants was actually agreements to sell. Hence on account of this error on the face of the record, the National Commission recalled the order dated 1.3.2016. However the National Commission again proceeded to dismiss the complaint, this time on the ground that the appellant trust was not a 'consumer' within the meaning of Section 2(1)(d) of the 1986 Act as the aforesaid section excludes a person who obtains goods and services for a 'commercial purpose'; that since providing hostel facility to the nurses is directly connected to the commercial purpose of running the hospital, and is consideration for the work done by them in the hospital, the appellant would not be a 'consumer' under the 1986 Act. Hence this appeal.
(3.) Section 2(1)(d) of the 1986 Act defines 'consumer' as follows: "(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 prom- ised, 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 purposes. 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." (emphasis supplied) The above Explanation clause was added to Section 2(1)(d) by way of Ordinance No. 24 of 1993 (subsequently replaced by Amendment Act No. 50 of 1993), with effect from 18.6.1993. Amendment Act No. 50 of 1993 also added 'housing construction' to the definition of 'service' under Section 2(o) of the 1986 Act. In the present case, it is not denied that the Appellant has validly taken possession of the flats constructed by Respondent No. 1 and paid consideration for the same, and can therefore be said to have availed of its housing construction services. This Court has held in Spring Meadows Hospital v. Harjol Ahluwalia through K.S. Ahluwalia, I (1998) CPJ 1 (SC), that the person who hires the service for a beneficiary can also be included in the definition of 'consumer' under Section 2(1)(d)(ii). Though that case was in the context of parents hiring the services of a hospital for their minor child, the same principle may also be extended to a case such as the present one where an employer such as the Appellant trust hires certain services for the welfare of its employees. Hence, though possession of the flats was acquired for the purpose of providing housing facility to the hospital nurses, the Appellant is entitled to claim against Respondent No. 1 as a consumer. The only issue which arises for our consideration therefore is whether the purchase of flats for the purpose of providing accommodation to nurses employed by the Appellant trust's hospital qualifies as a 'purchase of services for a commercial purpose'; and consequently whether the Appellant is excluded from the definition of 'consumer' under Section 2(1)(d) of the 1986 Act. Learned senior counsel for the Appellant, Mr. Guru Krishna Kumar argued in reliance upon this Court's decisions in Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583, and Paramount Digital Colour Lab v. Agfa India Private Limited, (2018) 14 SCC 81, that the Court has to look at the dominant purpose for which the purchase is made in order to decide whether it was for a 'commercial purpose.' In this case, the dominant purpose for purchasing the flats was to provide housing to the nurses and was not linked to the commercial operations of the hospital. Per contra, learned senior counsel for the Respondents Ms. Kiran Suri argued that under the Explanation to Section 2(1)(d), only goods and services availed "exclusively for the purpose of earning livelihood by self-employment" are excluded from the ambit of 'commercial purpose'. In the present case, the hostel facilities in the flats constructed by Respondent No. 1 were for the purpose of providing comfortable accommodation to the nurses, which in turn would increase their efficiency and lead to provision of better services to the hospital. Hence the flats were indirectly connected to the commercial purpose of increasing profits for the hospital. Such a purchase would not fall in the category of 'earning livelihood by self-employment'. Learned senior counsel relied on this Court's decisions in Laxmi Engineering (supra), Cheema Engineering Services v. Rajan Singh, (1997) 1 SCC 131, and Kalpavruksha Charitable Trust Toshniwal v.Brothers (Bombay) Pvt. Ltd., (2000) 1 SCC 512, to buttress her argument. ;