The present appeal under Section 15 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of complainant to impeach the judgment/final order dated 12th March, 2015 made by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, ‘Ld. District Forum’) in Consumer Complaint No. 685 of 2013 whereby the complaint lodged by the appellant under Section 12 of the Act was dismissed on contest.
The appellant herein being complainant lodged the complaint before the Ld. District Forum asserting that being a resident of Vill.+P.O.+P.S. – Duttapukur, Dist – North 24 Parganas he was carrying on business on transportation of goods through heavy vehicle from his locality in other places on the requirement of the parties. In order to purchase one heavy vehicle truck from the opposite party no. 2 Bank, the complainant approached for loan to O.P. No. 2 and O.P. No. 2 financed Rs. 17,20,000/- only as a part of value of the truck and the truck was kept hypothecated under the Bank. The opposite party nos. 1 & 2 received a sum of Rs. 1,95,708/- from the complainant and the loan was obtained vide Contact No. WCS00185D dated 29.08.2011. The complainant has stated that after purchase of the Tata L.P.T. 3118TC under hypothecation, after observing all necessary works of the truck and on payment of tax and permit, the complainant started his business with the said truck bearing Registration No. WB-25E/2015. The complainant has stated that in terms of payment of loan was of 43 instalments and the complainant will pay Rs. 51,900/- per month to O.P. No. 2 as instalment. The complainant has stated that due to break down of vehicle he failed to pay instalments for the months of April and May, 2013 and due to non-payment of the same, O.P. Nos. 1 & 2 served a letter dated 24.06.2013 and disclosed termination dated 30.06.2013. On 14.09.2013 the O.P. No. 1 served a letter upon him and took possession of the vehicle on 07.09.2013 and claimed Rs. 16,26,686/- along with interest thereon @ 18%. The complainant has stated that the truck in question is the only source of income of him and he wants to repay the loan amount on plying the truck. Since, the prayer of complainant was turned down, he approached the Ld. District Forum with prayer for several reliefs, viz.- (a) a direction upon the O.P. Nos. 1 & 2 not to disturb the peaceful possession of the impugned vehicle and restrain them from take forceful possession of the impugned vehicle vide No. WB 25E 2015; (b) an order directing the O.Ps. to pay Rs. 5,000/- per day for withholding the impugned vehicle vide No. WB 25E 2015; (c) an order directing the opposite parties and his men and agent and Authority, not to sell/transfer and/or handover the impugned vehicle and threatening the petitioner to snatch the impugned vehicle from the possession of the petitioner; (d) for litigation cost of Rs. 50,000/- etc. The respondent nos. 1 & 2 being O.P. Nos. 1 & 2 by filing a joint written version has stated that the complaint is not maintainable either in law or in fact and it has been stated that due to non-payment of the amount they took repossession of the vehicle and as such the complainant is not entitled to any relief whatsoever.
The respondent no. 3/O.P. No. 3 did not appear to contest.
Both the parties have tendered evidence through affidavit before the Ld. District Forum and also the documents in support of their respective cases. After assessing the materials on record, the Ld. District Forum by the impugned order dismissed the complaint. Being aggrieved and dissatisfied with the said order, the complainant has come up in this Commission with the present appeal.
Ld. Advocate for the appellant has submitted that the Ld. District Forum below ought to have held that the pre-sale notice dated 14.09.2013 was served upon the appellant cunningly and in a very clandestine manner keeping the appellant in dark and the said notice was posted on 31.10.2013 i.e. after 47 days but the alleged sale as per respondent nos. 1 & 2 was effected on 31.10.2013. Ld. Advocate for the appellant has also submitted that the Ld. Forum below should have held that three months notice to sale was required to be filed upon the appellant before selling of vehicle in question as per bank rules. To fortify his contention, Ld. Advocate for the appellant has placed reliance to decisions reported in – (1) III (2012) CPJ 405 (NC) [Indian Seamless Financial Services Ltd. – vs. – Ranjana S. Patel]; (2) III (2007) CPJ 161 (NC) [Citicorp Maruti Finance Ltd. – vs. – S. Vijayalaxmi]; (3) III (2006) CPJ 438 [Vikram Shah Thakur – vs. – ICICI Bank] etc.
Per contra, Ld. Advocate for the respondent nos. 1 & 2 has contended that nowhere in the petition of complaint the appellant has mentioned that he intended to purchase the vehicle for earning of his livelihood by means of self-employment. On the contrary, in the petition of complaint the appellant has spell out that he intended to purchase the vehicle for carrying on his business of transportation of goods through heavy vehicle. Drawing my attention to Paragraph-7 of the complaint, Ld. Advocate for the respondent has submitted that the appellant was engaged in the business of transportation of goods through heavy vehicle and he has more than one vehicle for the purpose of the said business and when the loan was obtained for running the trucks from commercial purpose, the appellant cannot be categorised as ‘consumer’ as he obtained loan for running the truck for commercial purpose within the meaning of Section 2(1)(d) of the Act. To fortify his submission, Ld. Advocate for the respondent nos. 1 & 2 has drawn my attention to Paragraph-8 of a decision of Hon’ble National Commission reported in IV (2014) CPJ 348 (NC) [Bachan Narayan Singh – vs. – Eicher Plan and Marketing Head Quarter, Eicher Motors Ltd. & Ors.] and another decision of Hon’ble National Commission reported in III (2015) CPJ 1 [Jagrut Nagrik & Anr. – vs. – Cargo Motors Pvt. Ltd. & Anr.]
Therefore, the point for consideration is whether or not the appellant falls within the ambit of the definition of ‘consumer’ as defined in Section 2(1)(d) of the Act. In order to find answer to the above question, it is necessary to have a look on the relevant definition of ‘consumer’ which reads as under:
“Consumer means any person who –
- 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 then 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
- 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”.
The foregoing provision provides that the ‘consumer’ is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of services for commercial purposes. Explanation to the Section creates and exception and states that clause ‘commercial purpose’ does not include used by a person of goods brought and used by him and services available by him exclusively for the purposes of earning his livelihood by means of self-employment.
In order to find whether the appellant is entitled to the benefit of explanation to Section 2 (1)(d) of the Act, it is necessary to have a look at the contents of the petition of complaint. In Paragraph-2 of the petition of complaint the appellant has stated that he used to carry on business of transportation of goods through heavy vehicle from his place of residence to other places on the requirement of the parties. In Paragraph-4 he has mentioned that with an intention to carry on transportation business he prayed for loan to O.P. No. 2. In Paragraph-7 of the petition of complaint the appellant has further stated that he started his business with the said truck.
In the case of Laxmi Engineering Works –Vs.- P.S.G. Industrial Institute reported in (1995) 3 SCC 583 the Hon’ble Supreme Court has observed that what is a ‘commercial purpose’ is a question of fact to be decided in the facts of each case. It is not the value of the goods that matter but the purpose to which the goods bought are put to. The Hon’ble Apex Court further proceeded to observe – ‘the explanation, however, clarifies that in certain situations, purchase of goods for ‘commercial purpose’ would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’.
In a decision reported in I (2005) CPJ 27 (NC) (M/s. Harsolia Motors – Vs. – National Insurance Co. Ltd.) the Hon’ble National Consumer Commission has observed that if the goods are purchased for resale or for commercial purpose, then such consumer would be excluded from the coverage of the Act.
In a decision of the Hon’ble Supreme Court reported in (1997) 1 SCC 131 (Cheema Engineering Services –Vs.- Rajan Singh) has explained the term self-employment by observing thus:
“Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchase for the purpose of manufacture ..... by employing himself in working out or producing the goods for earning his livelihood. He includes the members of his family”.
The Hon’ble National Consumer Commission in a decision reported in 2000 (3) CPJ 13 (Shakti Engineering Works –Vs.- Sree Krishna Coir Rope Industries) has held that in order to have protection of explanation to Section 2(1)(d)(ii) of the Act, one must establish that he himself was engaged in the activity which generates livelihood. Acting in supervising capacity would not satisfy the requirement of explanation.
In Paragraph-8 in the case of Bachan Narayan Singh (supra), Hon’ble National Commission has observed thus:
“8. Ld. State Commission also observed that petitioner purchased vehicle for commercial purposes and he does not fall within the purview of consumer. Ld. Counsel for the petitioner submitted that vehicle was purchased by petitioner for earning his own livelihood and he placed reliance on judgment of this Commission in I (2005) CPJ 27 (SC) = F.A. No. 159 of 2004. M/s. Harsolia Motors – vs. – National Ins. Co. Ltd. I agree with the principles laid down in aforesaid judgment in the light of judgment of Hon’ble Apex Court in Laxmi Engineering Works – vs. – PSG Industrial Institute, II (1995) CPJ 1 (SC) = (1995) 3 SCC 583, case, but I do not find any averment in the complaint that complainant purchased vehicle for earning his livelihood by means of self-employment. Merely because it has been mentioned in the complaint that his business is closed since 20.10.2008, it cannot be inferred that he was earning his livelihood by means of self-employment and Ld. State Commission rightly observed that petitioner did not fall within the purview of consumer and complaint was not maintainable”.
Considering the pleadings of the parties and the evidence available on the record, I am of the view that the Ld. District Forum did not commit any error in dismissing the complaint. In other words, the dispute being not amenable before a Fora constituted under the Act, the Ld. District Forum should have nipped the complaint in the bud without exercising to consider the merit of the case.
Consequently, the appeal is dismissed on contest. However, there will be no order as to costs.
The impugned judgment/final order stands affirmed.
However, it is made clear that this order will not debar the appellant/complainant to approach the appropriate Court/Forum in accordance with law and to overcome the hurdle of limitation, he may seek assistance of the decision of Hon’ble Supreme Court reported in (1995) 3 SCC 583 [Laxmi Engineer Works – vs. – PSG Industrial Institute].
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.
