Date of filing – 08.05.2014
Date of Hearing – 08.05.2017
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Party nos.1 & 2 to impeach the Judgement/Final Order dated 21.03.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint no. 246/2012. By the impugned order, the Ld. District Forum allowed the consumer complaint lodged by the Respondent no.1 Sri Subir Kanti Bala under Section 12 of the Act on contest with cost of Rs.10,000/- with certain directions therein.
The Respondent no.1 herein being Complainant lodged the complaint before the Ld. District Forum stating that he is an unemployed youth having 40% permanent disability and for maintaining livelihood for himself and for his family approached the OP no.1 Bank for granting loan to purchase car. Accordingly, OP no.1 Bank assured sanctioned of loan for purchase of two TATA Magic Omni Bus (7+1) capacities and referred the complainant to the dealer i.e. the OP no.3. The Manager of the Bank explained that loan will be granted as total package towards costs of two vehicles, registration fees for Public Vehicles Department and licence fee for Regional Transport Office, Govt. of West Bengal and the complainant has accepted the said offer. Thereafter, complainant met the OP no.3, who issued proforma invoice being No.BAL/SD/P-INV dated 16.12.2010 for cost of one TATA Diesel Chassis, Model TATA Magic BS-IV of Rs.3,61,057/- on road price which includes show room price, registration charges and insurance charges. According to terms and conditions, the complainant deposited Rs.1,46,000/-. Thereafter, the Bank granted him loan under SME in favour of the complainant but paid to the dealer i.e. OP no.3 by demand draft for Rs. 7,16,536/- towards cost of two new vehicles TATA Magic including charges for registration of those two vehicles being Nos. (1) WB-20Z/2941 and (2) WB-20Z/2942. The Bank arranged for insurance for those two vehicles through OP no.4 for the purpose of registration of those two vehicles as commercial vehicle in the office of Public Vehicles Department. Those two vehicles were insured on 02.02.2011 by OP no.4 and the licence was registered on 04.02.2011 as private and both the vehicles were delivered to the complainant. On 18.05.2011 out of said two vehicles, one vehicle being No.WB-20Z/2942 met an accident and police ceased the vehicle with all the documents and registered one case being KLC P.S. Case No.01/11 dated 20.05.2011. The complainant contacted with OP no.4 for insurance claim but the insurance company refused to settle the same as the vehicle was not commercial in nature. Hence, the respondent no.1 approached the Ld. District Forum with prayer for certain reliefs, viz. – (1) directing the opposite parties to rectify the discrepancies in the licence issued by the registering authority; (2) to pay the claim of Rs.15,29,115/- as mentioned in Paragraph-26 of the petition of complaint; (3) to pay compensation and (4) litigation cost etc.
Despite of service of notice, Appellants i.e. OP nos. 1 & 2 did not appear and contest before the Ld. District Forum.
The Respondent no.2 being OP no.3 by filing a written version disputed the allegations of the Complainant stating that the complaint is not maintainable in the eye of law and the Regional Transport Authority is one of the necessary party for determination of the dispute.
The Respondent no.4 being OP. no.4 by filing a written version has stated that they insured two vehicles being Nos. WB-20Z/2941 and WB-20Z/2042 at the behest of OP no.1 Bank upon getting remittance from them and as there was no negligence or deficiencies in the services on the part of them, the complaint should be dismissed.
After assessing the materials on record and having heard the Ld. Advocates appearing for the, Respondent no.1, Respondent no.2 and Respondent no.3, the Ld. District Forum allowed the complaint with certain directions, as indicated above. Being aggrieved and dissatisfied with the said order, the OP nos.1 & 2 have come up in this Commission with the present appeal.
Ld. Advocate for the appellants has submitted that the Ld. District Forum has failed to appreciate that the complaint suffers from non-joinder of necessary party as Regional Transport Authority, South 24 Parganas at Alipore has not been made party wherefrom the certificate of registration was issued in favour of the respondent no.1. It has further been submitted that the respondent no.1 being an experienced person in the business of transport operator approached the appellant Bank for availing credit facility under the nature of termed loan being SME which does not provide to make registration for commercial users.
Per contra, Ld. Advocate for the respondent no.3 has submitted that the Respondent no.1 is a physically disabled person having permanent disability of 40% and as such in order to earn his livelihood by means of self-employment, he approached the appellant after obtaining consent form from the Bank. However, at the time of registration, the vehicles in question were registered as private, in place of commercial for which the Ld. District Forum was quite justified in passing the order impugned.
Ld. Advocate appearing for the Respondent no.2 has submitted that the respondent no.1 purchased two vehicles by obtaining loan from the bank and placed the same before the registering authority for private registration and the said order form has been duly signed by the respondent no.1 and in this regard, there was no specific instruction from respondent nos. 2 & 3 regarding type of registration. On 18.05.2011, the respondent no.1 raised hue and cry when one of the said two vehicles met an accident and he failed to settle the insurance and thereafter he raised the issue of type of registration. Ld. Advocate for the appellant has submitted that the Ld. District Forum without considering the fact that the respondent no.1 was not a ‘consumer’ as defined in Section 2(1)(d) of the Act has passed the order, which should be set aside.
Ld. Advocate for respondent no.4 has submitted that the Ld. District Forum has rightly dismissed the complaint against OP no.4 and the said order may be maintained.
I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the respective parties.
Admittedly, respondent no.1 approached the Indian Overseas Bank for obtaining loan to purchase two TATA Diesel Chassis, Model TATA Magic BS-IV being Nos. WB-20Z/2941 and WB-20Z/2942. The materials on record also goes to show that the respondent no.1 had to commercial taxies being registration Nos. WB-04E/4321 and WB-04E/8035 at the time of application for loan to purchase two TATA Diesel Magic vehicles. The application form for business loan clearly indicates that the respondent no.1 is an experienced transport operators for long 12 years having his account with three nationalised banks at the time of such application. In the application, he has admitted about the meter-taxi owned by himself. The Ld. District Forum did not consider all those facts to determine whether the respondent no.1/complainant falls within the category of ‘consumer’ as defined in Section 2(1)(d) of the Act.
For appreciation of the situation, it would be worthwhile to reproduce the definition of Section 2(1)(d) of the Act which provides -
“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 any commercial purposes. Explanation to the Section creates an 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 a landmark decision reported in (1995) 3 SCC 583 (Laxmi Engineering Works – vs. – P.S.G. Industrial Institute) the Hon’ble Supreme Court had an occasion to analyse the scheme of the Act wherein while interpreting the explanation to Section 2(1)(d)(ii) of the Act, the Hon’ble Apex Court has observed thus – “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” and “a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer”. In the case beforehand, the respondent claimed that he purchased the vehicle for earning his livelihood by means of self-employment but it is difficult to understand how a person will ply two TATA Magic vehicles when he has already possessed two commercial taxies. In order to ply the vehicles, the respondent no.1 must require the assistance of others for the purpose of running four vehicles owned by him. The respondent no.1 did not disclose how he will ply all those four vehicles by himself at the same time. Therefore, it can be reasonably presumed that the respondent no.1 has obtained loan from the bank for the two TATA Magic Vehicles only for transport business. Thus, it cannot be said that the loan was obtained from the bank for the purchase of purchase of vehicles being Nos. WB-20Z/2941 and WB-20Z/2942 was exclusively for the purpose of earning livelihood by means of self-employment.
In the case reported in (1997) 1 SCC 131 (Cheema Engineering Services – vs. – Rajan Singh) the Hon’ble Apex Court has explained the terms self-employment by observing thus:
“Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased 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”.
In a decision reported in 2000 (3) CPJ 13 (Shakti Engineering Works – vs. – Sri Krishna Coir Rope Industries) the Hon’ble National Consumer Commission 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 the case beforehand, it is quite apparent that the respondent no.1has not approached the Ld. District Forum with a clean hand because he did not disclose the factum of purchase of two commercial taxies earlier and also maintaining a garage for which he has to incur Rs.9,200/- per month as rent. These are clear indications that the respondent no.1 cannot be categorised as ‘consumer’ within the meaning of Section 2(1)(d) of the Act.
After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties, it appears to me that the Ld. District Forum has completely misdirected itself in appreciating the facts and circumstances of the case keeping in view the proposition of law and the authorities as referred above. Accordingly, the Judgement/Final Order being not sustainable in the eye of law, liable to be dismissed.
For the reasons aforesaid, the appeal is allowed on contest. However, there will be no order as to costs.
The impugned Judgement/Final Order is hereby set aside.
Consequently, CC/246/2012 stands dismissed.
However, this order will not debar the Respondent no.1/Complainant to approach a competent Court/Forum in accordance with law and in the process he may seek assistance of the decision of Hon’ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works – vs.- P.S.G. Industrial Institute) to overcome the hurdle of limitation as embodied in Section 14(1) of Indian Limitation Act.
The Registrar of the Commission is directed to send a copy of this order forthwith to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.
