KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 138/2016

JUDGMENT DATED: 18.04.2023

(Against the Order in C.C. 118/2014 of CDRF, Idukki)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

Biju Jacob, Valayil House, Manakkadu P.O., Thodupuzha, Idukki.

   (By Advs. Shiji Joseph & Rajmohan C.S.)

                                                Vs.

RESPONDENTS:

1. The Managing Director, Magma Fincorp Ltd., Reg. Office, 24 Park Street, Kolkatta-16.

2. Magma Fincorp Ltd., Jain Tower, 1^st Floor, Power House Junction, Vyttila, Kochi-19.

(By Advs. Philip T. Varghese & P. Balakrishnan)

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

The appellant is the complainant before the Consumer Disputes Redressal Forum, Idukki (District Forum for short) in C.C. No. 118/2014.  The District Forum as per the order dated 27.11.2014 dismissed the complaint on the ground that the transaction between the complainant and opposite parties is of commercial in nature and hence the complaint was not maintainable.  Being aggrieved by the above order, this appeal has been filed. 

2.  The case of the complainant is that he had availed a loan of Rs. 35,27,000/- from the opposite party for purchasing an Excavator.  It was agreed to repay the loan amount in 47 monthly instalments.  But due to repeated mechanical defects of the Excavator the complainant could not effect repayment promptly.  However, he availed a loan of Rs. 2,00,000/- from a Co-operative bank by pledging his property and remitted the same towards the remaining instalments in May 2012.  After paying the entire loan instalments, he sought for releasing the hypothecation and return the registration certificate of the vehicle.  But the opposite party raised an additional demand for payment of Rs. 45,000/- for releasing the hypothecation.  Hence the complaint. 

3.  The opposite party had challenged the complaint on the ground of maintainability as the complainant is not a ‘consumer’ and the transaction between the complainant and the opposite party is a commercial loan transaction for a commercial vehicle.  It is also alleged that the opposite party and their office are located in Kochi and the District Forum, Idukki has no jurisdiction.  

4.  The complainant was examined as PW1.  Exts. P1 & P2 were also marked.  The District Forum had dismissed the complaint on the reason that the complainant is not a consumer as the transaction between the complainant and the opposite party is commercial in nature and the vehicle was also purchased for commercial purpose.  The finding of the District Forum was challenged on the ground that the complainant is a driver of the Excavator who had purchased the vehicle for earning his livelihood.  According to the appellant, the District Forum did not consider the fact that there is no direct nexus in making profit between the bank and the complainant. 

5.  Heard the counsel for the complainant and the opposite party and perused the records of the District Forum. 

6.  As per the definition of ‘consumer’ under Sec. 2(d)(i) the exclusion is in respect of a purchase effected by a person for resale or for any commercial purpose. But the explanation to Sec. 2(d) is that the word ‘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.  In the complaint the complainant had specifically pleaded that he is an Excavator driver by profession who solely depends on the income from his profession for livelihood.  He had sworn an affidavit as PW1.  In the affidavit also the complainant had sworn that he is an Excavator driver by profession who solely depends on the income from the profession for his livelihood and this particular contention stands unchallenged.  If the purchase was effected by the complainant for earning his livelihood by means of self employment, the said purchase is excluded from the scope of the definition for ‘commercial purpose’.  Even if the banking institution is doing a commercial transaction, the purchase was effected by the complainant for the purpose of earning his livelihood which comes under the explanatory clause of the definition contained in Sec. 2(d) of the Consumer Protection Act.  The District Forum has miserably failed to appreciate the contention of the complainant in its correct perspective.  When the opposite party raises a contention that the transaction in question is a commercial transaction, the burden is upon them to prove the same.  The initial burden on the part of the complainant has been discharged by pleading the fact that he is a driver by profession who has purchased the Excavator for his livelihood.   So it cannot be found that the complainant is not a consumer on the reason that the transaction is commercial in nature.  So the order passed by the District Forum is inherently defective and it is liable to be set aside. 

In the result, the appeal is allowed.  The order of the District Forum dated 27.11.2014 dismissing C.C. No. 118/2014 is set aside.  The matter is remanded back to the District Forum with a direction to decide the matter afresh in accordance with law.  Parties are directed to bear their respective costs. 

                          Sd/-

AJITH KUMAR  D. : JUDICIAL MEMBER

                          Sd/-

                                                   RADHAKRISHNAN K.R.  : MEMBER

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