DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
(CENTRAL) ISBT KASHMERE GATE DELHI
CC/214/2017
No. DF/ Central/
Deepak Lakra
S/O Sh. Hem Chander
R/O H.No. 753, Mundaka Village,
New Delhi – 110 041 …..COMPLAINANT
VERSUS
1. New India Assurance Co. Ltd. & Anr.,
Claim Hub, R.G. City Centre, L.S.C.
Block-B, Lawrence Road,
Delhi - 110035
2. The New India Assurance Co. Ltd.,
Divisional Office : 7 – E,
Jhandewalan Extn.
New Delhi - 110055 …..OPPOSITE PARTIES
Coram : Ms. Rekha Rani, President
Ms. Manju Bala Sharma, Member
Dr. R.C. Meena, Member
ORDER
Ms. Rekha Rani, President
1. Instant complaint was filed U/s 12 of the Consumer Protection Act 1986 as amended up to date (in short the Act) by Shri Deepak Lakra (in short the complainant) pleading therein that :
Complainant owned earth moving machine (JCB) having registration No. HR 63 B 3953 bearing chasis No. 1739330 and Engine No. H00009149 purchased on 27.07.2011. It was insured with The New India Assurance Co. Ltd. (in short the OP) vide policy receipt No. 31010081120000002732 and a premium of Rs. 13095/- was paid. The policy was valid for the period from 27/07/2012 to 26/07/2013. On 30/08/2012 at about 7 p.m. the driver of the said JCB Machine parked the said JCB machine in front of complainant’s office i.e. near Metro Pillar No. 485 Swarn Park, Mundka, Delhi and when he woke up at about 5 a.m. in the next morning he found that the machine was missing and he made a call at No. 100. An FIR was registered but even after due efforts and proper investigation the machine could not be traced and an untraced report u/s 173 Cr.P.C. was filed.
Complainant informed OP and submitted claim with requisite documents. However OP rejected the claim citing improper handling of the keys vide its letter no. 2538 dated 22/07/2013. The instant complaint is filed seeking direction to OP to pay to the complainant Rs. 15 Lacs as claim of Insurance with pendent lite interest, Rs. 1 Lac as compensation towards deficiency in service, Rs. 1 Lac as compensation towards mental pain and Rs. 50,000/- as litigation expenses.
2. Parties filed their evidence by way of affidavit. Both parties have also filed their written arguments.
3. We have heard Shri Anuj Giri Counsel for Complainant along with Shri Sandeep Yadav Advocate and Shri L.C. Sethi Counsel for OP.
4. Learned counsel for OP vehemently argued that complainant owned two JCB’s which are given on hire for profit and therefore he is not a consumer.
Learned counsel for OP has also taken an objection that the machine was allegedly stolen from Swarn Park Mundka Delhi whereas the instant complaint was filed before this Forum on 30.08.2012 and therefore the complaint is barred by limitation.
Complainant, on the other hand, has pleaded that he had originally filed the complaint before New Delhi Forum in 2013 but the same was returned to the complainant for want of territorial jurisdiction with liberty to file it before appropriate Forum vide order 21/08/2017 and as such the complaint is not barred by limitation.
Our attention is drawn to the FIR No. 224 of 2012 dated 01.09.2012 wherein it is submitted that complainant owned two JCB’s. JCB is operated by a driver. It was also submitted by learned counsel for OP that the complainant has office also and that he has also employed drivers and therefore the JCB machine in question is being used for commercial purpose and accordingly complainant is not a consumer.
On 25/05/2018 AR of the complainant was present along with Mr. Anuj Pal Advocate. He made a statement that complainant owned two JCB machines which are used for commercial purpose. The said statement was made in the presence of learned counsel for the complainant. From the FIR it is evident that complainant has an office at Mundka and he has employed the driver and that two JCB machines are given on rent/hire.
Complainant in his complaint has nowhere pleaded that he is operating the two JCB machines for earning his livelihood by way of self employment. He is using the JCB Machine in question with the help of the driver. His personal engagement with JCB machine in question has not been indicated anywhere. It is not in dispute that both JCB Machine are registered in the name of the complainant.
5. Section 2 (1)(d) of the Consumer Protection Act which defines the term ‘consumer’, to the extent it is relevant, reads as under:-
“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 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 purposes;
6. The Supreme Court has discussed the term 'consumer' in the judgment reported in Laxmi Engineering Works v PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 3 SCC 583, wherein it was held :
"The National Commission appears to have been taken a consistent view that where a person purchases goods 'with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit', he will not be a 'consumer' within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion - the expression 'large scale' is not a very precise expression - Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression 'commercial purpose' - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a 'consumer' but a person who buys a typewriter or a car for typing others' work, for consideration or for plying the car as a 'taxi', can be said to be using the typewriter / car for a commercial purpose. 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 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 the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a 'commercial purpose', to a question of fact to be decided in the facts of each case. 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 emphasise what we say. 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 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 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".
7. In Eicher Motors Ltd. vs Dilip Chandra Kant Vaidya, I (2007) CPJ 51 NC, complainant claimed to be an educated unemployed who purchased two buses from M/s Eicher Motors Ltd. State Commission directed M/s Eicher Motors Ltd. to replace two vehicles by new vehicles of the like nature and in the event of failure, to refund price of Rs. 14,58,000/- with 18% interest thereon from the date of delivery till payment with cost of Rs. 10,000/-. Appeal against the order of the State Commission filed by M/s Eicher Motors Ltd. was allowed by National Commission and it was observed that when complainant purchased two buses, it cannot be said that he could drive both buses without employing drivers. It was not his case that any other family member of the complainant was driving the same. The fact that the buses were in his care would not mean that they were not being run by employees for the purposes of running travel business.
8. In JCB India Ltd. Vs. Mallappa Sangappa Mantri & Anr., IV (2012) CPJ 220 (NC)., Hon'ble National Commission held thus :-
“6. We have no manner of doubt in holding that the aforesaid observations of the State Commission based on which the impugned order was passed were not only contrary to the facts on record but against the settled law in this regard and hence the impugned order cannot be sustained. The reliance of the State Commission on the decision rendered by the National Commission in the case of Dr. Vijay Prakash Goyal v. The Network Ltd., IV (2005) CPJ 206 (NC) = 2006 (1) CPR 164 (NC), is ill-placed since the present dispute has arisen after the amendment of Section 2(1)(d)(i) containing definition of a consumer w.e.f. 15.3.2003. Keeping in view the admitted position emanating from the complaint itself and other aspects of this case, we are convinced that the machine was being used by the complainant for earning profits and hence for commercial purposes by employing a number of people and we do not find any denial to these facts buy the // 19 // complainant anywhere on record. In the circumstances, as already held by this Commission in the cases cited by the Counsel, we are of the considered view that when a customer buys goods for commercial purposes and avails of services attached to the goods in the nature of warranty, he cannot be considered to be consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(1)(d)(i) of the Act which came into force w.e.f. 15.3.2003. In view of this, the complainant / respondent No.1 cannot be held to be a consumer and hence the complaint in question is not maintainable before any Consumer Forum. Consequently, the revision petition stands allowed and the impugned order is set aside and complaint is dismissed with no order as to costs. Liberty, however, is granted to the respondent No.1/complainant to approach appropriate Forum for redressal of his grievance and in case he chooses to do so, he can claim the benefit of Section 14 of the Limitation for the time spent before the Consumer Fora in accordance with the ruling given by the Apex Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583.”
9. In the instant case, admittedly, the complainant owns 2 JCB machines. FIR No. 224 of 2012 dated 01.09.2012 was registered on the basis of Statement of Sh. Hem Chander who is father of complainant and is also the AR of complainant in this case. He submitted that complainant owns 2 JCB machines which are given on rent/hire. On 25.05.2018, AR of the complainant in presence of his counsel made a statement that the 2 JCB machines in question are used for commercial purpose.
In his additional written arguments, complainant has submitted that both the JCB machines are registered in his name and he is running the business of operating JCB machines on rent. It is stated that since his father is not filing income tax return, both the JCB machines were purchased in the name of the complainant.
Since complainant is running the business of giving both the JCB machines on rent/hire, he is not personally engaged in any of the 2 JCBs. Hence, it cannot be said that he is earning livelihood by way of self-employment. Self-employment indicates some sort of physical engagement with the machine in question which is lacking in the instant case.
10. Since the complainant is not a consumer within the meaning of Section 2(1)(d) of the Act as he is using the machine in question for commercial purposes, this Forum cannot adjudicate the claim on merits having held that complainant is not a consumer. Complaint is dismissed being not maintainable before this Forum in view of the judgment of Apex Court in Laxmi Engineering Woks. The complainant may seek other relief in accordance with law and in such a case the complainant can claim benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, while computing the period of limitation prescribed for such a suit or other proceedings. Copy of this order be sent to the parties as per rules. File be consigned to record room.
Announced this of 2019.
