STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Ram Lal Thakur, son of Late Sh.Budhi Singh, R/o Village Runda, PO Kansakoti, Tehshil Rohru, District Shimla (HP).

……Complainant

V e r s u s

1. M/s Telco Construction Equipment Company Limited, Jubilee Building, 45, Museum Road, Bangalore  560 025.

2. M/s Jeet Earth Movers Private Limited, 129/1, Industrial Area, Phase I, Chandigarh 160002

....Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER

                   SH.JAGROOP SINGH MAHAL, MEMBER

Argued by:  Sh.C.M.Makkar, Advocate for the complainant.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.             The facts, in brief, are that the complainant claimed himself, to be a self employed Government Contractor, executing construction work, including construction of road etc. The complainant purchased 2 construction machines/ equipments i.e. of Make “Tata John Deere Model 315 V Hydraulic Backhoe Loader with GP Tyre, 24 Bucket & Emergency Spares” vide invoices dated 12.04.2006, Annexure C-1 and C-2, respectively. Opposite Party no.1, is manufacturer of the machines, referred to above, whereas Opposite Party No.2, is the authorized dealer of Opposite Party No.1. It was stated that the Opposite Parties were bound to provide complete documents, including Form Nos.21 and 22, to the complainant, for registration of the aforesaid machines, with the State of Himachal Pradesh. It was further stated that the aforesaid machines were purchased by the complainant, after raising loan from M/s Tata Motors Ltd., at a very high rate of interest, with a view to execute the construction of road work, contract whereof was awarded by the Himachal Pradesh Public Works Department (HPPWD), to him, under the time bound schedule. It was further stated that, in order to accomplish the said work, it was a condition precedent,  in the tender, to have the machines, referred to above, for execution. It was, in pursuance of the said tender condition, that the aforesaid machines were purchased by the complainant. It was further stated that these machines could be operated only, after getting the same registered, with the Registration and Licencing Authority, concerned under Rule  47 of the Central Motor Vehicles Rules, 1989.  It was further stated that the machines could not be got registered, with the Registration and Licencing Authority, in the absence of supply of the requisite documents by the Opposite Parties, including Form Nos.21 and 22. The Opposite Parties were requested a number of times to supply the requisite documents, but they did not bother to supply the same. It was further stated that, in the absence of registration of the aforesaid machines, with the Registration and Licencing Authority, the same could not be operated.

2.             It was further stated, under these circumstances, the complainant had to hire the machines, from some other owner, for execution of the work, aforesaid, in a time bound manner. It was further stated that had the complainant waited for the supply of the requisite documents, by the Opposite Parties, he would have suffered a lot, firstly on account of the cancellation of the awarded work, and secondly on account of loss of his good will. It was further stated that, in that event, the complainant would have also suffered a huge financial loss. It was further stated that, during the period of contract, the complainant had paid Rs.34,23,017/-, on account of hiring charges of the machines, under compulsion, despite the fact that he had purchased his own machines, referred to above, but those could not be plied,  for want of registration thereof, in the absence of supply of the requisite documents, by the Opposites Parties. Even a legal notice dated 16.05.2010, Annexure C-15, was also served upon the Opposite Parties. Opposite Party No.1, sent a short reply, stating therein, that they were enquiring into the matter and the detailed reply would be sent at a later stage. It was further stated that,  no detailed reply was, however, sent by the Opposite Parties. It was further stated that, on account of the aforesaid act and conduct of the Opposite Parties, the complainant,  suffered physical harassment and mental agony. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed by the complainant, claiming Rs.10 lac, on account of physical harassment and mental agony; Rs.34,23,017/- towards financial loss suffered, on account of hiring the machines, alongwith interest @18% per annum, from the date of purchase of machines, till its realization; and litigation costs to the tune of Rs.22,000/- .

3.             We have heard the Counsel for the complainant, and, have gone through the documents placed by him, on record, carefully. 

4.             The Counsel for the complainant, submitted that since the complainant, purchased the machines, for the purpose of execution of the work of construction of road etc., awarded to him, by the HPPWD, for earning his livelihood, by way of self employment, he fell within the definition of a consumer, under the Act. He further submitted that due to non-supply of the requisite documents,  by the Opposite Parties, from whom the machines were purchased, vide invoices Annexure C-1 and C-2, respectively, the same could not be got registered with the concerned Registration and Licencing Authority, and, as such, these machines, could not be operated for execution of the work, aforesaid. He further submitted that as a result of non-operation of the machines for executing the work aforesaid, the complainant suffered financial loss, as also physical harassment and mental agony, referred to above. He further submitted that non-supply of the requisite documents, and Forms aforesaid, by the Opposite Parties, with a view to enable the complainant to get the machines purchased by him, registered with the concerned Registration and Licencing Authority, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice, for which the complainant is entitled to the compensation, claimed by him, in the complaint.

5.           The core question, that falls, for consideration, is, as to whether, the complainant falls within the definition of a consumer or not. For proper decision of this question, the provisions of Section 2(1)(d) and Section 2(1)(o), defining the `consumer` and ‘service’ respectively, are extracted as under:-

       “(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 promised, or under any system of deferred payment and includes any beneficiary of such services other then 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]; Added by Act 62 of 2002 w.e.f. 15.03.2003.

[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer 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;]

Section 2(1)(o) defines service as under:-

(o) "services" means service of any description which is made available to potential 16[users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

6.           According to Section 2(1)(d)(i) of the Act, the consumer does not include a person who obtains such goods for resale or for any commercial purpose. Section 2(1)(d)(ii), which was amended by Act 62 of 2002 w.e.f. 15.03.2003, clearly lays down that the person who hires or avails of the services for a consideration, for any commercial purpose shall not qualify, as a consumer. In the instant case, as per the averments, contained in the complaint, vide documents i.e. invoices Annexure C-1 and C-2 two machines, each costing Rs.13,79,999.99, were purchased by the complainant from the Opposite Parties on  12.04.2006. The complainant, in para number 1, of the complaint, stated that he was a self employed Government Contractor, and was working/executing construction work, including construction of road etc.  It was also averred by him, in para number 3, of the complaint, that he purchased the machines, aforesaid, for the purpose of executing the construction of road work awarded to him by HPPWD. Under these circumstances, it could not be said that the machines, were purchased, by the complainant, for earning livelihood, by way of self employment. The road work could not be carried out, by the complainant, singlehandedly, or by employing one or two persons. For the execution of the road work, referred to above, the complainant must have employed hundred of persons, so as to ensure, that the same could be completed, within the time frame, fixed by the HPPDW, in the tender notice. The averments, made by the complainant, in para number 1, of the complaint, that he was a self employed Government Contractor, therefore, cannot be said to be correct, in the facts and circumstances, narrated above. The machines were, therefore, said to have been purchased by the complainant, for commercial purpose, with an intent to earn profits, and not for earning livelihood, by self-employment. Under these circumstances, the complainant does not qualify as a consumer, as defined in Section 2(1)(d)(i) of the Act. Similar principle of law was laid down in Sanjay D.Ghodawat Vs. R.R.B.Energy Ltd. IV (2010) CPJ 178 (NC), a case decided by a full Bench of the Hon`ble National Commission and in Economic Transport Organization Vs.Charan Spinning Mills (P) Ltd., & Anr., I (2010) CPJ 4 (SC), a case decided by a Constitution Bench of the Apex Court. It is, therefore, held that the complainant does not fall within the ambit of a consumer, and, as such, the complaint is not maintainable.

7.           It is not the value of the goods, that matters, but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought, must be used by the buyer himself, by employing himself, for earning his livelihood. A few more illustrations would serve to emphasis that a person who purchases an auto-rickshaw to ply it, himself, on hire, for earning his livelihood, would be a consumer. Similarly, a purchaser of a 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. In the above illustrations, if such a  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 an auto-rickshaw, a car or a lathe machine or other machine, to be plied or operated exclusively by another person, would not be a consumer. This is the necessary limitation, flowing from the expressions "used by him", and "by means of self-employment" in the explanation. Similar principle of law, was laid down, in Laxmi Engineering Works Vs P.S.G. Industrial Institute, 1995(2) Consumer Law Today 474(SC).

8.           Since it has been held above, that the complainant, as per the averments, contained in the complaint, as also the documents placed, on record, does not fall within the definition of a consumer, under Section 2(1)(d)(i), the complaint is not maintainable and is liable to be dismissed, at the preliminary stage.

9.           No other point, was urged, by the Counsel for the complainant.

10.         For the reasons, recorded above, the complaint, is dismissed, at the preliminary stage, with no order as to costs, being not maintainable.

11.         Certified Copies of this order be sent to the parties, free of charge.

12.         The file be consigned to Record Room, after completion

Pronounced.

February 9, 2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Rg.