DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL), ISBT KASHMERE GATE DELHI
CC/ 76/2016
No. DF/ Central/
M/s Yash Tourism India Pvt. Ltd.,
Through its Director
Shop no. 117, Ist Floor,
MSX Tower-II,
Commercial Belt,
Alpha-I, Greater Noida,
G.B. Nagar, Uttar Pradesh-201308
……..COMPLAINANT
VERSUS
1.M/s Raghuvanshi Motors
ZB-11/487, Main G.T. Road,
Dilshad Garden,
Delhi-110095
2. Oriental Insurance Company Ltd
Service Centre (DRO-2) , 4E/14,
Jhandewalan Extn,
Azad Bhawan, New Delhi-110055
3. ICICI bank Ltd
S-26.27.28,
Green Park Extn,
Near Uphar Cinema,
New Delhi-110016
…..OPPOSITE PARTIES
Quorum: Ms. Rekha Rani, President
Sh. Vikram Kumar Dabas, Member
Mrs. Manju Bala Sharma, Member
ORDER
Rekha Rani, President
- M/s Yash Tourism India Pvt. Ltd. (in short the complainant) filed the instant complaint U/s 12 of the Consumer Protection Act 1986 as amended (in short the Act) pleading therein that in May 2013 complainant booked three cars from two different car agencies. Two cars were booked from 36, Toyota , Faridabad. Third Car TATA Indica was booked from Raghuvanshi Motors (in short the OP1) on 22.05.2013. Loan amount of cars was sanctioned by ICICI Bank Ltd (in short the OP3). Complainant got said vehicle insured with M/s. Oriental Insurance Company Ltd (in short the OP2) comprehensively vide policy no. 121500/31/2014/01/50003299 for one year from 24.05.2014 to 23.05.2015. On 15.07.2013 possession of the said vehicle was taken by the complainant on payment of the entire sale price. On 16.07.2013 complainant obtained temporary registration certificate in respect of the said vehicle. On the intervening night of 15.07.2013 and 16.07.2013 the said vehicle was stolen from the residence of complainant. Complainant filed a complaint with P.S. Kasna. Accordingly an FIR no. 512/2013 dated 18.07.2013 was registered with PS Kasna. Complainant informed OP2 as well as OP3 regarding theft of the vehicle. Police filed closure report in case no. 616/2013 regarding theft of the vehicle which was accepted by the ACJM-II Gautam Budh Nagar vide order dated 03.04.2014. OP2 did not pay the claim of the complainant. Complainant accordingly sent a legal notice dated 30.01.2016 asking for payment of Rs. 382854/- with interest @ 18% p.a. OP has not paid the said claim. Hence, the instant claim seeking direction to OP to pay booking amount of Rs. 382854/- with interest @ 18% p.a. Rs. 2 lacs as compensation for causing mental torture with interest @ 18% p.a. , Rs. 55,000/- with interest as litigation cost.
- On receipt of notice of the instant complaint OP1 contested the claim of the complainant vide a separate written statement. It is pleaded that complainant has do not come to the forum with clean hands. It is also stated that this forum has no territorial jurisdiction. OP 2 contested the claim vide a separate written statement. It is stated that the complaint is barred u/s 2 (d) (ii) of the Act as the vehicle in question was purchased for commercial purpose. As such complainant is not a consumer and the complaint is not maintainable under the Act. It is further stated that as per the terms and conditions of the insurance Policy the complainant was duty bound to intimate OP 2 about the theft immediately whereas the complainant intimated the police on 18.07.2013 after two days of theft and OP 2 was informed about theft on 20.09.2013 which is in violation of the terms and conditions of the policy. Further it is stated that on the date of theft the insured vehicle was not registered and the same was being driven in violation of Section 39 of the Motor Vehicles Act and also terms and conditions of the policy. OP 3 has challenged the claim vide its separate written statement pleading therein that this forum has no territorial jurisdiction to try the present complaint as no cause of action arose within the jurisdiction of this forum. It is further stated as per complainant’s own case it is a company and the loan was also taken in the name of the company and as such the cars having been purchased for commercial purpose the complaint is liable to be dismissed.
- We have heard Mr. Saurav Bajaj counsel for complainant and Mr. Pawan Sharma Counsel for OP1, Sh. Sohan Petwal counsel for OP3 and have perused the case file.
- The complaint is filed by M/s Yash Tourism India Pvt Ltd. The name of the complainant itself indicates that it is a company engaged in the business of tourism. In para 2 page 1 of the complaint it is pleaded that in May 2013 complainant booked three cars from two different car agencies.
- Apex Court in Laxmi Engineering Works (1995) 3 SCC 583 observed as follows:
‘’ 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 clarified that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition 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 for the purposes of the Act. The explanation reduces the question, what is a ‘’commercial purposes’’. To a question of fact to be decided in the facts of each case. It is not the value of the goods that mattes 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 or 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 a consumer.) As against this a person who purchases an auto-rickshaw, a care 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. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words.’’
6. Purchase of 3 cars at a time by a company engaged in tourism business is certainly for commercial purpose and not for earning livelihood by means of self employment. The complainant being not a consumer within the meaning of section 2 (1) (d) of the Act is not entitled to file a complaint under the Act. Accordingly the complaint is disposed off being not maintainable under the Act . Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on this ______ Day of May 2018.
