(Sri D. Shankar Rao, Member)

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to pay the amount of Rs.19,75,000/- together with interest thereon @ 24% p.a. from the date of the petition till the date of payment by taking back the Tractor cum Harvester bearing No.AP22 AD-0651.

2. The brief facts set out in complaint are that the complainant is an educated un-employee and being small farmer had purchased Mahindra Tractor cum Harvester of OPs.1 & 2 from OP-3 on 28-10-2010 for Rs.12,50,000/- on persuasion of OP-4. The complainant shelled down Rs.4,80,000/- which includes Rs.30,000/- towards insurance and documentation and the balance amount of Rs.8,00,000/- was financed by OP-5 on hypothecation of said Mahindra Tractor cum Harvester vehicle bearing R.C.No.AP 22/AD-0651. The vehicle guarantee period is 2000 working hours or two years whichever is earlier from the date of purchase. The fourth servicing of the vehicle was completed by 1050 working hours and it worked upto 1250 working hours without any trouble. On  20-3-2012 the vehicle came to halt at Naidupeta of Nellore district in Andhra Pradesh and the complainant explained the trouble to OP-4 on phone immediately. The OPs mechanic at Naidupeta branch came and inspected the vehicle and informed the OPs at Mahabubnagar on phone that the gear Fork and clutch plates were found out of order. On  22-3-2012, another mechanic of OPs at Sreekalahasthi came and inspected the vehicle and informed OPs at Mahabubnagar on phone that two wheels of 1^st gear, Fork and clutch were found out of order. The repair could not be taken up due to non-availability of spare parts. The complainant came to Mahabubnagar show room on 24-3-2012. The OPs.3 & 4 have assured that the spare parts could be secured by ensuing Monday i.e., on 26-3-2012 but could be secured on 3-4-2012 and on  4-4-2012 the complainant and two mechanics of OPs have reached Naidupeta by 8 a.m. on 5-4-2012. That on 6-4-2012 another mechanic of OPs at Sreekalahasthi also arrived at Naidupeta on the job. The complainant also travelled extensively along with the mechanics in different places for getting spare parts.  None of the spare parts did suit the repair. The OPs another mechanic from Mahabubnagar came to Naidupeta on 9-4-2012 with Fork then the spare parts were fitted to the vehicle.  All the mechanics were left for Mahabubnagar in the morning on 10-4-2012 but the vehicle revealed problem again. Gear oil profusely leaked and the gears developed abnormally loud sound.  On the report of complainant again, the OPs mechanic from Kadapa and Railway Kodur have come to the spot and found that the gear lever was defected, and then vexed with the situation the complainant brought the vehicle to Mahabubnagar and handed over the same at the show room of OPs on  16-4-2012 at 9:30 a.m. for which a job card was given showing several defects stating that the repair work would be attended to after receipt of spare parts. The complainant got issued legal notice dated 18-4-2012. The OPs.1 & 2 have got issued an evasive reply denying their liability.  However, it is clear from their reply outset that the product itself suffered from manufacturing defect. 

    The complainant has raised private loans on heavy interest for paying Rs.4,80,000/- for purchasing vehicle. The complainant has paid five installments of Rs.74,200/- each to OP-5 under hypothecation of vehicle loan and the next date of installment fell on 25-4-2012.  The business of harvesting is quite seasonal. The period from 20-3-2012 being Rabi season has been peak time for harvesting. The complainant requested OPs.3 & 4 to get his vehicle repaired as early as possible.  The indifferent answer of OPs.3 & 4 was that the complainant should also be prepared to suffer loss which would get benefit from the use of harvester. The complainant sustained heavy loss due to purchase of defective vehicle. The complainant could earn Rs.1,800/- per working hour from 7 a.m. to    5 p.m. Thus the complainant is claiming Rs.10,000/- per day from  20-3-2012 till 16-5-2012 amounting to Rs.5,80,000/- (Rs.10,000/- x 58 days) towards loss of earnings. The hardship being faced by complainant for the stringent demands from OP-5 for payment of installments in addition to the loss of earnings. The complainant had also to pay Rs.500/- per day to the driver for keeping vehicle and Rs.200/- per day to the cleaner in addition to the spent Rs.8,000/- for up and down journey of mechanics and their food etc. Thus the total loss incurred by the complainant is Rs.6,09,000/-.     

   The attitude of OPs.3 & 4 before purchasing vehicle and their indifferent response after break down the vehicle created great mental agony to the complainant for which they are liable to pay an additional sum of Rs.1,00,000/-. The complainant has lost faith on the workability of the vehicle even if it is repaired as it is never certain as to which part gets damaged and particularly when the spare parts are not available in the market at all.  The harvester is still in the garage of OPs.3 & 4.  Thus the total entitlement of complainant together with interest on the sale price and loss of earnings and expenditure in all comes to Rs.24,78,900/-.  However the complainant is restricting his claim to Rs.19,75,000/- in all.  Hence this complaint to direct the OPs jointly and severally to pay Rs.19,75,000/- with interest @ 24% p.a. from the date of complaint till payment by taking back the Tractor cum Harvester bearing R.C.No.AP-22/AD-0651.

3. The OPs.1 & 2 have filed their counter and stated that the OPs.1 & 2 are one legal entity and there is no entity with the name of M/s Mahindra Tractors but they have entity with the name of Mahindra and Mahindra Ltd. Therefore the OPs.1 & 2 are referred to OP-1 and the OP-1 stated further that the relationship between the OP-1 and OP-3 is on principal-to-principal basis but not an agent.  Therefore the OP-1 is not responsible for the actions of OP-3. The complainant has purchased Tractor cum Harvester (AP22-AD-0651) from OP-3 who is a dealer.  It is true there is a warrantee for a period of 2000 working hours or two years from the date of purchase whichever is earlier.  It is also true that the 4^th servicing of the Tractor cum Harvester was completed. That on 22-3-2012 the OP-1 received an order (Break down tractor order) from OP-3. The said parts were promptly sent to Mahabubnagar on 3-4-2012. It is also received another break down tractor order and the OP-1 has promptly dispatched the parts which have been received by OP-3 on 3-5-2012.  The defects in question are not manufacturing defects. The complainant has taken Tractor cum Harvester for commercial purpose, hence the present complaint is not maintainable. There are serious and complicated issues involved in the matter which require leading of evidence. Hence the present complaint could not be entertained before Consumer Forum and the complainant should approach Civil Court for relief.  The averments of complainant is an educated un-employee and being small farmer had purchased the Tractor cum Harvester under hypothecation for his livelihood are denied. All other allegations have been denied. Therefore the complaint is liable to be dismissed with costs. 

4. The OPs.3 & 4 have filed their counter and stated that they have no knowledge whether the complainant is an educated un-employee and a small farmer.  It is false to say that OP-3 persuaded the complainant and convinced him to purchase Tractor cum Harvester. The OP-4 is an employee of OP-3 and he is not necessary party to the proceedings of complaint. It is true that the complainant had purchased Tractor cum Harvester and the OP-3 had received actual cost and there is a warrantee to the said vehicle for a period of 2000 working hours or two years whichever is earlier from the date of purchase.  It is also true that the 4^th servicing of said vehicle was completed. It is also true that there was some trouble to the said vehicle at Naidupeta on 20-3-2012 and the OP-3 has immediately contacted with the dealer of OP-1 namely M/s Jagala Trading Pvt. Ltd. at Sreekalahasthi to help the complainant. The said dealer on the same day deputed technicians to attend the problem of Harvester. The said technicians after inspecting the Harvester have informed that there is no manufacturing defect or problem and advised to change clutch plates and Fork Gear Shifter. Further informed that the said defect was developed due to mishandling and negligence of the driver/operator.   The OP-3 also utilized the service of one more technician from Thirupathi on the next day. At the relevant point of time the parts were not available with the said dealer, hence the OP-3 immediately placed (Break down tractor) order at Khane, Pune on 22-3-2012.  The said parts were sent to OP-3 at Mahabubnagar on 3-4-2012 and the technicians have taken those parts to Naidupeta on 5-4-2012 and senior technician from Thirupathi also visited spot on 6-4-2012.  During the repair of said work, it was noticed that there was need of gear drive, driving second speed and Fork Gear Shifter parts which were secured from the dealer at Naidupeta on 7-4-2012 and completed the work on 10-4-2012 and the complainant was satisfied.  Subsequently informed that there was a gear noise and gear oil leakage.  Again the technicians were sent and have attended the repairs and rectified the same. Thereafter the complainant brought the Tractor cum Harvester to OP-3 at Mahabubnagar on 16-4-2012 to rectify the noise from the gear box. The OP-3 could not secure spare parts immediately and placed break down order and received the parts on  3-5-2012 and those were replaced. The driver of said vehicle was given suitable instruction to drive by taking proper care. The complainant has not taken his Tractor cum Harvester inspite of intimation and intentionally kept the vehicle with OP-3.  In fact the OP-3 has reimbursed whatever the amounts paid by complainant at Naidupeta for purchasing spare parts.  The delay if any caused in attending to the repairs is due to non-availability of spare parts and also distance from Mahabubnagar where the vehicle was kept. The loss assessed under various heads are imaginary and invented and not at all responsible for OP-3. The complainant was advised to go for change of clutch plates when earlier service was done.  There is no fault, latches or negligence on the part of OPs.3 & 4 and they have attended the service promptly.  The complainant has purchased Tractor cum Harvester for commercial purpose which is not maintainable before the Forum under C.P. Act.  There are serious and complicated issues involved which required leading evidence and the complainant should approach Civil Court for the relief. All other allegations have been denied. The complaint is liable to be dismissed with costs.

5. The OP-5 filed its counter and stated that the complainant and OP-5 are hirer and owner of vehicle. It is a contractual obligation under loan agreement and created a charge of hypothecation on vehicle. Hence the complainant is not a owner of vehicle and he will not fall within the meaning of ‘Consumer’ under C.P. Act. The complainant has availed loan of Rs.8,00,000/- from OP-5 for purchase of Tractor cum Harvester and bound to repay the loan amount as per terms of loan agreement. The OP-5 is bound to make demand to the complainant whenever the loan installments were not made as per terms of loan agreement but it cannot be termed as stringent demands.  There is no relief sought against OP-5 in the complaint, hence the complaint is liable to be dismissed with costs.  All other allegations are not at all concerned with the OP-5.  The prayer of complainant is false and incorrect. Even in the legal notice dated 18-4-2012 nothing is attributed against OP-5. The complainant has to work out his remedies if any to suit against concerned parties but not against OP-5 when there is no deficiency of service or unfair trade practice against OP-5, connecting more particularly with the loan transaction.  Therefore the complaint is liable to be dismissed against OP-5 with costs.

6. During enquiry, the complainant has filed his affidavit as evidence and also filed the affidavit evidence of one K. Krishnaiah Goud and got marked Exs.A-1 to A-10 documents and closed his evidence.  The OPs.1 & 2 have filed the affidavit of Abhishek Chand, Manager Legal for OP-1 at Mumbai as evidence and closed their evidence.  The OP-3 filed the affidavit of Yella Reddy, authorized representative of OP-3 as evidence and got marked Exs.B-1 to B-9 documents and closed its evidence. The OP-4 adopted the affidavit evidence of OP-3 as his evidence and closed his evidence. The   OP-5 filed the affidavit of Thimmappa, Legal Officer and GPA holder of  OP-5 as evidence and closed its evidence.                      

7.  Heard arguments.

8.  The points for consideration are:-

1. Whether the complaint is maintainable under C.P. Act?
2. Whether there is any deficiency of service on the part of OPs?
3. To what relief?

9.  Point Nos.1, 2 & 3:- There is no dispute that the Tractor cum Harvester bearing R.C.No.AP-22-AD-0651 was manufactured by OPs.1 & 2. The complainant had purchased the said vehicle from OP-3 on 28-10-2010 also not in dispute. There is a guarantee period for 2000 working hours or for two years whichever is earlier from the date of purchase of vehicle also not in dispute.  It is also not disputed that the 4^th servicing of vehicle was completed. The vehicle is still in the garage of OP-3 at Mahabubnagar is also not in dispute.

10.  In addition to other objections, the OPs have raised the legal objection that the complainant is not a consumer under C.P. Act as he purchased the Tractor cum Harvester for a commercial purpose. Further objected that there are several complicated questions have involved in the case and those can be tried only by a competent Civil Court. 

11. The plea of complainant is that he is educated un-employee and he being small farmer had purchased Tractor cum Harvester for the purpose of his livelihood. Further plea is that he has borrowed an amount of Rs.4,80,000/- from private persons and obtained finance Rs.8,00,000/- from OP-5 and purchased the vehicle under hypothecation. In order to prove his case the complainant filed his own affidavit as well as the affidavit of one K. Krishnaiah Goud as evidence and he relied upon   Exs.A-1 to A-10 documents supporting to his case.

12. The OPs.1 & 2 have filed the affidavit of their Legal Manager Abhishek Chand as their evidence in support of their contention.  The OPs.3 & 4 are also filed the affidavit of their authorized representative Yella Reddy and they relied upon Exs.B-1 to B-9 documents supporting to their contention. The OP-5 also filed the affidavit of its Legal Officer Thimmappa as its evidence supporting to its contention.   

13. We have heard the learned counsel for the parties and perused the case record. The learned counsel for the complainant vehemently argued that the complainant purchased the vehicle only for the purpose of earnings for his livelihood by means of his self employment but not for the purpose of any commercial activities and he covered under the definition of ‘Consumer’ as defined in Sec.2(1)(d) of C.P. Act, 1986.  On the contrary the learned counsels for the OPs have also vehemently argued that the complainant is not a consumer as defined under C.P. Act as the purchased Harvester purpose itself is a commercial in nature and it cannot be stated that the said transaction was made for the purpose of his livelihood earnings.

14. In view of controversy, it would be appropriate to reproduce the definition of ‘Consumer’ as contemplated in Sec.2(1)(d)(i)(ii) of C.P. Act herein under:-

(d)  “consumer” means any person who      

1.   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
2.  [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 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 (i) “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;] 

15. By virtue of amendment that was made by Act 62 of 2002, with effect from 15-3-2003, the explanation as stated above was inserted and it was made clear that commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.     

       Section 2(1) (M) of the Consumer Protection Act, 1986 gives a definition of a ‘person’ as follows:-

“ (M) “ Person” includes :-

1. A firm whether registered or not,
2. A Hindu undivided family,
3. A Co-operative Society,
4. Every other Association of persons whether registered under the

      Societies Registration Act, 1860 (21 of 1860) or not”.

16.  In the judgment delivered by the Hon’ble Supreme Court “Laxmi Engineering Works Vs. PSG Industrial Institute” reported in 1995 CPJ (II) SC-1, it has been stated that the explanation excludes certain purposes from the purview of the expression “Commercial purpose”.    The explanation reduces the question what is a commercial purpose to a question of fact to be decided in the facts of each case.  In elaborate;          a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person to buys a typewriter or a car for typing other’s work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose.  But purchase of goods/services for commercial purpose would not oust from the definition of expression “Consumer”, if the purchaser himself for the purpose of earning his livelihood by means of self employment; such purchaser of goods/services is yet a consumer. If the purchaser himself works on typewriter or plies the car as taxi himself, he does not cease to be a consumer.  Similarly, a purchaser of truck who purchases it for plying it as a public carrier by himself would be a consumer.  A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer.  If such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.  As against this, a person who purchases vehicle/truck or lathe machine or other machinery to be plied or operated exclusively by another person would not be a consumer.

17.  Now coming to Section 2(1) (d) of the Consumer Protection Act, 1986.  It is to be seen whether the complainant has purchased tractor-cum-harvester bearing No.AP 22-AD-0651 in question for commercial purpose and whether it can be excluded from the definition of consumer on that ground.  The Consumer Protection Act, 1986 was amended with effect from 15-3-2003 and it has been laid down in Section 2(1) (d) that if a person buys any good or avails of any service for any commercial purpose, it is not included in the definition of “Consumer”, unless such goods bought and used by him and services availed by him were exclusively for the purpose of earning his livelihood by means of his employment.

18. We have gone through the contents of the complaint. The plea of complainant is that he is educated un-employee and he being small farmer had purchased tractor-cum-harvester bearing RC.No.AP22–AD-0651 for the purpose of earnings for his livelihood, by means of his self employment. Further pleaded in paragraph 3 of complaint in 19^th line to 25^th line that he had to pay Rs.500/- per day to the driver and Rs.200/- per day to the cleaner for keeping the vehicle. It means that the complainant had engaged driver and cleaner and operated the tractor-cum-harvester through them instead of operating the same by complainant himself.  When the complainant engaged other persons for exclusively operating his tractor-cum-harvester instead of operating the same by himself, he would not be a “Consumer” as defined in Section 2 (1) (d) of C.P. Act, 1986 as held by the Hon’ble Supreme Court in the judgment of ‘Laxmi Engineering Works Vs. PSG Industrial Institute’ as stated supra.

19.  In view of aforesaid discussions, and in the light of Hon’ble Supreme Court Judgment in ‘Laxmi Engineering Works Vs. PSG Industrial Institute’ as stated supra, we are of the considered view that the complainant is not a consumer as expressly defined in Section 2(1) (d) of C.P. Act 1986 and his complaint is not maintainable under C.P. Act, 1986. Therefore we answered the point No.1 against the complainant and in favour of the opposite parties.

20.  In view of above legal finding, when the complaint is not maintainable under C.P.Act, 1986 on the ground that the complainant himself is not a ‘Consumer’, we are of the view that it is not required to discuss other facts in issue and give findings in the case.

21.  Therefore the complainant is not a ‘Consumer’ as defined in Section 2(1) (d) of C.P. Act, 1986 and his complaint is liable to be dismissed as not maintainable under C.P. Act, 1986.  If the complainant chooses to file a suit for the relief claimed in these proceedings, he can do so according to law and in such a case he can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under Consumer Protection Act, 1986 while computing the period of Limitation prescribed for such a suit as held by the Hon’ble Supreme Court in the Judgment of ‘Laxmi Engineering Works Vs. PSG Industrial Institute’ as stated supra. 

  22. IN THE RESULT:-  The complaint is dismissed without costs.