STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

APPEAL CASE No.F.A-13/2014

Rajib Paul,

S/O Lt. Rakhal Chandra Paul,

Of village-Dhalak, P.S-Birganj,

Amarpour, Gomati.

                                     ….    ….    ….    ….    Appellant.

                              Vs

1. SHRIRAM TRANSPORT FINANCE COMPANY LTD.,

Represented by its General Manager,

101-105 Shiv Chambers,

Belapur, Navi Mumbai-400614.

2. Branch Manager,

SHRIRAM TRANSPORT FINANCE COMPANY

Agartala Branch,

Math Chowmihani, College Road,

Shibnagar, Agartala,

Tripura West. 799004.

                                    ….    ….    ….    ….    Respondents.

                                       PRESENT :

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

MRS.SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

  For the Appellant                  :      Mr.S.Pandit,Adv.

                                                   Mr.A.Debnath,Adv

  For the respondents              :      Mr.S.Bhattacharjee,Adv.

  Date of Hearing                    :     06.01.2015.

  Date of delivery of Judgment  :     21.01.2015.

J U D G M E N T

S.Baidya,J,

            This appeal filed on 24.05.2014 by the appellant-Rajib Paul under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment dated 18.02.2014 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-46 of 2013 whereby the Ld. District Forum dismissed the complaint on the ground that the appellant-complainant is not a consumer within the meaning of Section 2(1)(d) of the C.P.Act, 1986.       

2. The case of the appellant-complainant as narrated in the memo of appeal, in brief, is that the respondent No-1 is a company incorporated under the Indian Companies Act and the respondent No-2 is the branch office of respondent No-1. It is also stated that the appellant entered into an agreement for purchase of a truck under certain terms and conditions for a sum of Rs.2 lakh approx. with a stipulation that the appellant would have to repay the said valuation of the truck within 20.05.2014 by monthly instalments. It is also stated that the said agreement has come into force on and from 03.06.2012 and the registration Number of the said truck is TRO1 F 1845.                                                 
3. It has also been stated that the said vehicle was refinanced to the appellant who started to pay instalment from 31.07.2012 and paid Rs.15,000/- towards the first instalment, the second instalment of Rs.15,000/- was paid on 30.11.2012 and on 22.01.2013 Rs.15,000/- was also paid and the last payment of instalment of Rs.30,000/- was paid on 11.03.2013 and thus, the appellant paid Rs.75,000/- against the agreement.
4. It has also been stated that the appellant’s vehicle started disturbance in the last part of December, 2012 and it was taken in the garage for repairing which took a considerable period and at that time the appellant informed the matter to the respondent No-2 at Agartala who allowed the appellant’s request to pay the instalments later on. It has also been stated that after repairing, the delivery of the vehicle was taken from the work shop of M/S Sharma engineering Works, Kashipur, A.A.Road, opposite of Gopinath Temple, Agartala.
5. It has also been alleged that the vehicle used to be driven by the appellant for his self employment who holds a valid driving licence, but due to his illness the appellant had engaged Makhai Miah as his driver temporarily and at the same time an assistant was also engaged by him. It has also been stated that on 05.04.2013 at about 4.30 p.m. one of the staff of respondent No-2 namely Sri Ripon Debnath along with other persons by using force took the vehicle of the appellant from the possession of the said driver at Hapania (near the FCI go-down) and on protest by the driver he was assaulted by the said Ripon Debnath and his associates for which a criminal case being CR No-08/13 has been lodged by the driver of the appellant before the Ld. CJM, Bishalgarh as Amtali P.S. did not take any action in spite of information given by the driver in writing and ultimately a police case being Amtali P.S. case No.152/2013 has been registered as per order of the Ld. CJM in accordance with the provision of Section 156(3) of the Cr.P.C. which is still pending. It has also been stated that the vehicle was illegally taken away from the possession of the driver and on and from 05.04.2013 the said vehicle is lying in the custody of the respondent No-2.
6. It has also been stated that the office of the respondent No-2 issued a defaulter notice on 04.04.2013 and demanded Rs.83,380/- as defaulted amount and asked the appellant and his guarantor to repay the same within seven days from the date of receipt by the appellant which was received on 25.04.2013.
7. It has further been alleged in the memo of appeal that the respondent No-2 issued a letter dated 17.04.2013 intimating the appellant to pay Rs.79,255/- as total outstanding dues within a period of seven days, otherwise the vehicle would be disposed of. It has also been stated that on receipt of the said letter dated 04.04.2013 on 25.04.2013 the appellant was to make ready for payment within seven days from 25.04.2013, but he was not given opportunity to repay the said amount within seven days of receipt of the notice, because before that date, the vehicle was repossessed by force on 05.04.2013. It has also been stated that as the vehicle was illegally taken over before expiry of the notice period, the appellant could not make the payment and then the appellant issued a lawyer’s notice to the respondent No-2 demanding the handing over of possession of the vehicle in good running condition within a period of five days from the date of issuance of the letter, but in spite of that, the respondent gave no reply to the said letter and hence the appellant being the complainant filed the complaint before the Ld. District Forum who held that the appellant does not come within the purview of the definition of consumer and accordingly, dismissed the complaint by the impugned judgment.                
8.  That being aggrieved by and dissatisfied with the impugned judgment dated 18.02.2014 the appellant-complainant  has preferred the instant appeal on the grounds that the Ld. Forum did not consider that the appellant was given 7 days’ time for making the payment, but before the expiry of the period of seven days as allowed by the respondent No-2, the respondent took possession of the vehicle illegally, otherwise the appellant would have repaid the entire amount within the period of notice, that the Ld. Forum ought to have held that the plea of the appellant to the effect that he had used the vehicle for self-employment, but had engaged a driver temporarily due to his illness, that the Ld. Forum did not consider that due to the illegal taking over the possession of the vehicle on 05.04.2013, the appellant could not use the vehicle for self- employment purpose for earning his livelihood and hence the appellant has preferred the instant appeal praying for setting aside the impugned judgment and also for allowing an award of Rs.8,43,500/- in favour of the appellant for illegal detention of the vehicle including the loss of earning and others.         

Points for consideration.

9.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in dismissing the complaint by the impugned judgment and (2) whether the impugned judgment should be set aside and the complaint should be allowed by awarding a compensation as prayed for.      

                         Decision with Reasons.

10.  Both the points are taken up together for the sake of convenience and brevity.
11. The learned counsel Mr.S.Pandit appearing for the appellant-complainant submitted that the appellant holds a valid driving licence to drive heavy vehicle and since his acquisition of the said second-hand truck bearing registration No.TR01 F 1845 he was driving that truck for earning his livelihood as self-employment, but due to sudden illness he was indisposed of and engaged one Makhai Miah as driver to drive the said vehicle temporarily. He also submitted that during the time of his temporary indisposition while Makhai Miah was driving that truck, the respondent No-2 through his men took over the possession of the said vehicle forcibly. He also submitted that the respondent No-2 issued a letter dated 04.04.2013 allowing the appellant seven days’ time to the appellant to repay the entire defaulted amount of Rs.83,380/-, but the respondent No-2 illegally and in violation of his own notice through his men namely Ripon Debnath and his associates forcibly took over the possession of the truck from the said driver Makhai Miah at Hapania within the jurisdiction of Amtali Police Station for which the said driver informed the matter in writing to the concerned P.S. and as the said P.S. did not take any step in this regard, the appellant has filed the complaint petition before the Ld. CJM, Bishalgarh with a prayer under Section 156(3) of the Cr.P.C. following which Amtali police station case No-152/13 has been registered which is still pending.   
12. The learned counsel for the appellant further submitted that taking over possession of the truck forcibly on 05.04.2013 before the expiry of seven days from 04.04.2013 is highly illegal for which the appellant being the complainant approached the Ld. District Forum, but the Ld. District Forum dismissed the complaint holding that the appellant-complainant is not a consumer under the C.P.Act, 1986.
13. The learned counsel for the appellant also submitted that the Ld. District Forum wrongly held that the appellant is not a consumer. He also submitted that the appellant, excepting the temporary period of indisposition, used to drive the vehicle to earn his livelihood as self- employment as provided under explanation to Section 2(1)(d) of the C.P.Act. He also submitted that engagement of the driver Makhai Miah temporarily on account of physical indisposition of the appellant does not debar the appellant from being a consumer, but the Ld. Forum failed to appreciate this circumstances and wrongly dismissed the complaint by the impugned judgment which is not sustainable in law and should be set aside and an appropriate award should be granted over the said complaint by allowing the appeal in favour of the appellant-complainant.  
14. On the other hand, the learned counsel Mr.S.Bhattacharjee appearing for both the respondents submitted referring to para-7 of the complaint that the said paragraph does not disclose that the appellant-complainant at the relevant time was indisposed of temporarily and the story of temporary indisposition and also the story of engagement of Makhai Miah as driver temporarily are matters of afterthought and the appellant has taken the shelter of these two pleas in the memo of appeal, but para-7 of the complaint itself falsifies these two pleas of the appellant. He further submitted that para-7 of the complaint categorically indicates that the appellant got his vehicle regularly driven by Makhai Miah, but not temporarily. He also submitted that in view of the above position, the appellant-complainant cannot be considered a consumer under explanation to Section 2(1)(d) of the C.P.Act, 1986. He also submitted that the Ld. Forum rightly considered this matter and passed the impugned judgment dismissing the complaint holding that the appellant-complainant was not a consumer under the said Act.
15. The learned counsel for the respondents referring to a decision reported in 1995 Legal Eagle (SC) 477 submitted that last portion of the para-12 of the referred judgment clearly establishes the fact that the appellant was not a consumer under Section2(1)(d) of the C.P.Act. He also submitted that as the complainant-appellant was not a consumer, so, the filing of the complaint before the Ld. District Forum was not legally maintainable under the said Act. He also submitted that the appellant could not establish by adducing any cogent and reliable evidence that the appellant was then under temporary indisposition and Makhai Miah was engaged temporarily. He also submitted that even the driver Makhai Miah was not examined in the District Forum by the appellant-complainant for establishing that he was engaged by the appellant as driver on account of temporary indisposition of the appellant. He then submitted that the Ld. District Forum properly considered the entire aspects of the case and rightly dismissed the complaint by the impugned judgment which being proper and justified should be affirmed and the appeal should be dismissed.
16. Going through the record and after hearing the learned counsels of both sides, we find two points are involved in this appeal. The first point is regarding the taking over of the alleged illegal possession of the vehicle on 05.04.2013 as stated in the notice dated 17.04.2013 without waiting for seven days’ time, as per defaulter notice dated 04.04.2013. The second point is whether the complainant-appellant was a consumer under Section2 (1) (d) of the C.P.Act, 1986 for filing the complaint before the Ld. District Forum. In this regard, we find it appropriate to reproduce the definition of consumer as provided under Section 2(1)(d) of the C.P.Act, 1986 which runs as follows :-

          (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 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 purpose of the 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;    

17. The complainant in his complaint nowhere stated that he used to drive the vehicle before 05.04.2013 and on account of his temporary indisposition, he engaged Makhai Miah as driver to drive his vehicle on 05.04.2013 in his absence on which the possession of the said vehicle was allegedly taken over forcibly by the men of the O.P. from the custody of the said driver Makhai Miah. Admittedly, said Makhai Miah was not examined in the District Forum. He is the competent person to establish whether he was only engaged on 05.04.2013 to drive the vehicle of the complainant or not. No iota of medical evidence was produced from the side of the complainant for establishing that on 05.04.2013 the complainant was really sick. Admittedly, the definition of consumer does not include a person who obtains such goods for resale for any commercial purpose and also does not include a person who avails or hires any services for consideration for any commercial purpose. The explanation to Section 2(1)(d) of the C.P.Act provides that “commercial purpose” does not include used by a person bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. It is the specific case of the complainant that he purchased the vehicle (truck) with the finance of the respondent for earning his livelihood by means of self-employment. It is also his case that the complainant has a valid driving licence to drive heavy vehicle, but in the instant case, it is necessary to establish that the complainant used to drive his vehicle for earning his livelihood by means of self-employment, but the complainant miserably failed in this regard. Going through the impugned judgment, we find that the Ld. District Forum has clearly analyzed these aspects and arrived at the conclusion that the complainant was not a consumer for filing the complaint before the District Forum under the C.P.Act. On due consideration of all, we are also in agreement with the findings of the Ld. District Forum that the complainant was not a consumer as provided under Section 2(1)(d) of the C.P.Act. That being the position, we are of the view that the Ld. District Forum rightly held that the complainant not being a consumer under Section 2(1)(d) of the C.P.Act is not legally entitled to lodge the complaint before the Ld. District Forum. We are also of the view that the Ld. District Forum rightly dismissed the complaint.
18. As regards alleged forcible possession, in course of hearing of the appeal the learned counsel for the respondents submitted that on the above points, the remedy, if any, of the complainant lies in the Civil Court, but not in the Consumer Fora. Going through the impugned judgment, we are of the view that the Ld. District Forum observed that the complainant is at liberty to seek redress of his grievances for illegally taking over possession of the vehicle by the O.P. violating the terms stipulated in the notice dated 04.04.2013 (Ext. 1), if so desired. We are of the view that the Consumer Fora has nothing to decide regarding this relief claimed by the complainant-appellant. In agreement with the findings of the Ld. Forum, we are of the view that the redress of the complainant for the alleged illegally taking over of possession of the vehicle by the O.P.-respondent lies, if any, in the Civil Court.
19. On the basis of the above findings and also going through the impugned judgment, we are of the view that the Ld. District Forum has considered all aspects of the matter vividly and arrived at the proper and legal conclusion and dismissed the complaint by the impugned judgment which being proper, legal and justified is liable to be affirmed and the appeal is also liable to be dismissed.               
20. In the result, the appeal fails. The impugned judgment dated 18.02.2014 passed by the Ld. District Forum in case No-C.C.46/13 is hereby affirmed. There is no order as to costs.

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura