Heard both parties on the question of maintainability. The first contention of opposite party is that the transaction of vehicle dealing between the complainant and opposite party does not come under the perview of Consumer Protection Act nor does the complainant a consumer as per the definition of consumer under the Act. It is further contended that opposite party is not a dealer in car sale nor has any business in car. Admittedly complainant purchases a used car from the opposite party, who is not a trader. The basic aspect that touches the contention of opposite party is that the transaction in question is not a commercial transaction since the seller is not a trader. It is purely a sale of her own used car as per a contract. Complainant has not availed any service for consideration. Contention also has been taken that the entire transaction was taken place in accordance with the terms stipulated in the agreement.
The learned Counsel for the opposite party argued in length that since all transactions are arisen out of the terms of contract the dispute, if any, which involves complicated questions withregard to compliance of terms of contract etc. The civil courts only have jurisdiction to entertain the issue involved in this matter.
Complainant’s Counsel off on the other hand vehemently argued that complainant is a consumer and the For a has jurisdiction to entertain the complaint since the complainant purchased the car for a valid consideration. The opposite party/ seller is a trader since she sold the car for a price.
It is true that complainant purchased the car as per an agreement dated 29.04.2010. It is even stipulated therein the right of litigation specifically provided thus “ta hy-h-Ø-IÄ ]men-¡p-¶-Xn hogvN hcp-¯p-¶-hÀs¡Xnsc ]c-kv]-cT \nb-a-\-S-]-Sn-IÄ koI-cn-¡m-hp-¶-Xm-sW¶pT CXn-\m hy-hØ sN¿p-¶p.” There is no doubt that the transaction in respect of purchase of car has been taken place on the basis of an arrangement. If the matter is purely in the realm of breach of contract it would not constitute ‘a consumer dispute’ as envisaged by the provisions of Consumer Protection Act, 1986.
In view of the above facts and circumstances of the case the primary issue that has been involved herein, which required to be taken up from the outset is whether or not the seller /opposite party is a trader, and if not, the complainant is entitled to lodge the complaint in respect of the defect of the car. The word ‘defect’ and deficiency have been defined in section 2(1)(f) and 2(1)(g). On a conjoined reading of these definitions makes it clear that complaint could be as regards unfair trade practice adopted by a trader. In Kishori Lal Ghosh Vs. Rajkumar Samaiya and others, 1993(1) CPJ 470, the Hon’ble State Commission present it clearly that “the combined effect of all the definitions is that a complaint can be lodged in respect of defect in any goods against a trader who has sold the goods or a person who has given service on hire”.
The word trader imports buying and selling of commodities and includes the manufacturer thereof. The trader is one who engaged in trade or commerce carried on with a view to profit.
Section 2(1)(g) of the Consumer Protection Act defines the word “trader” as under :- 2(1)(q) “trader” in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof. “Trade” according to Aiyar’s Law Lexicon means – “The craft of business which a person has learned and which he carries on as a means of livelihood.” According to New Webster’s Dictionary it means “line of mercantile or commercial business or the traffic in a particular commodity or class of commodities.” In state of Gujarath Vs. Maheshkumar Dhirajlal Thakkar, 1980 Sec (cr) 442 that “trade”included any business carried on with a view to earn profit. It was held in Citibank N.A. Vs. Geekay Agropack (P) Ltd and another, 2008 CTJ 561 (Sc) (cp), that a Consumer Forum can award compensation only for the deficiency in service of a trader or service provider. For recovery of any other loss, it is open to the consumer to file a civil suit. The Hon’ble Supreme Court in the case U.T. Chandigarh Administration and another Vs. Amerjeet Singh and others held that the grievance of the person purchasing a site in an open auction could not be termed as a ‘consumer dispute’. It is further held that “the purchaser is not a consumer, the owner is not ‘trader’ or service provider and the grievances does not related to any matter in regard to which a complaint can be filed under the CPA,2009 CTJ 486 (sc)(cp).
Having regard to these facts and in the circumstances of the case, we are constrained to hold that the dispute raised by the complainant is not a ‘consumer dispute’ and the complaint is not maintainable.
In the result, therefore, the complaint fails and it is dismissed. The parties are directed to bear and pay their own costs in this proceedings.
Dated this the 15th day of July, 2011.
Sd/- President Sd/- Member Sd/- Member
Forwarded by order
Senior Superintendent
