Order No. - 07.
Date-27/09/2018.
SRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application under section 12 of the Consumer Protection Act, 1986.
The instant hearing arose out of an application dated 06/07/2018 filed by the O.P. Tata Motors Finance Ltd. on the ground of maintainability of the complaint petition. The application heard on 12/09/2018.
Heard the Ld. Advocate appearing for the O.P. who submitted that this Forum have lack of pecuniary jurisdiction to entertain the instant complaint on the ground that in order to determine the pecuniary jurisdiction, the consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered along with the compensation, cost and interest. According to him, all these should be clubbed together. He further argued that the market value of the asset clubbed with the compensation claimed by the complainant is more than Rs.20,00,000/-, in the instant case, total value of the Mini Bus is Rs.6,58,696/- and the complainant claimed Rs.15,98,200/- as compensation. Thus the value of the Mini Bus and compensation comes to Rs.Rs.22,56,896/-, which exceeds the pecuniary jurisdiction of the District Forum.
In addition to that, the Ld. Advocate for the O.P. has contended that complainant purchased the Mini Bus bearing registration No. WB-19D-3483 only for commercial purpose and in the complaint petition complainant never stated that he plying the said Bus for maintaining his own livelihood. It is also argued that the complainant is the owner of two Mini Bus bearing Nos.WB-19D-3484 and WB-19D-3483 and both the buses were purchased after availing loan from the O.P. The complainant plying those vehicles for his transport business. As such, the complainant is not a consumer under the Consumer Protection Act, 1986.
On the other hand, the Ld. Advocate appearing for the complainant has submitted that in the instant case, market value of the Mini Bus has been assessed according to the Rule-9Aof the C. P. Act, 1986 and the District Consumer Forum have jurisdiction to entertain the complaint. According to him, the prayer of the O.P. is not tenable and should be rejected.
We have considered the rival contentions. So far as first contention of the Ld. Advocate for the O.P. is concerned, the Hon’ble National Commission in a case reported in I(2017) CPJ1 (NC) Ambrish Kumar Shukla & 21 Others - Vs. - Ferrous Infrastructure Pvt. Ltd. have decided the issue .
Section-12(1) of the Act deals with the manner in which complaint shall be made. Relevant portion is reproduced as under-
“Manner in which complaint shall be made- (1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by-
- the consumer to whom such goods sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided,
- any recognized consumer association whether the consumer to whom goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not,
- one or more consumers, where there are numberous consumer having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested,
-
- the Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.”
In Ambrish Kumar Shukla & 21 Others – Vs. – Ferrous Infrastructure Pvt. Ltd. decided on 07/10/2016 the Larger bench of the Hon’ble National Commission have been pleased to observe in para-15 (V) that “The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of services as the case may be, is to be considered, along with the compensation, if any, claimed in the pecuniary jurisdiction of a Consumer Forum.”
On reading of the above, it is clear that to determine the pecuniary jurisdiction of a Consumer Forum the consideration paid at the time of purchasing the goods along with the compensation claimed in the complaint to be clubbed together. In the instant case complainant purchased the Mini Bus at a total consideration of Rs.6,58,000/- after obtaining loan from the O.P. company against Agreement No.5000145532 dated 14/08/2007 as it appears from the Annexure-A of the Written Version. The complainant claimed Rs.15,98,200/- as compensation. If both the amount clubbed the total amount comes to Rs.22,56,896/- which exceeds the pecuniary jurisdiction to the District Forum. As such, the District Forum have no pecuniary jurisdiction to adjudicate the complaint caseand under section 11(1) of the C. P. Act, 1986 District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed Rs.20,00,000/-. In view of the discussion above, this is a fit case which cannot be allowed to adjudicate before the District Forum.
So far the second contention of the Ld. Advocate for the O.P. is concerned, it appears from the paragraph-5 (iii) of the Written Version that complainant is the owner of two Mini Bus bearing Nos. WB-19D-3483 and WB-19D-3484 and both the Mini Bus are purchased after availing loan from the O.P. Company. Therefore, it is crystal clear that complainant plying both the Mini Bus for his business purpose. Photocopies of Cardex -I (Contract Details) itself prove the allegation of the O.P. that the complainant is the owner of two Mini Buses. On reading of the definition of consumer as provided in Section-2(1)(d) of the Consumer Protection Act, 1986 it is clear that the complainant is a person who buys goods or hires or avails of services for consideration. The definition, however, has an inbuilt exception providing that if the goods are purchased for commercial purpose or the services are hired or availed for commercial purpose then said person would not be a consumer.
On bare perusal of the complaint petition, we do not find any averment that the complainant plying the Mini Bus for maintaining his livelihood. As such, we are of view that the complainant used the Mini Bus for commercial purpose not for maintaining his own livelihood. Therefore, the complainant is not a consumer under the provision of Consumer Protection Act, 1986 and he has no locus standi to maintain a consumer complaint.
The contract details in respect of Mini Bus bearing registration No. WB-19D-3483 was made between the complainant and O.P. company on 28/04/2010 and the instant complaint has been filed on 03/05/2018 after statutory period of limitation provided u/section 24A of the C. P. Act, 1986. It is true that the complainant issued a demand justice notice to the O.P. on 03/04/2017. It is settled that by serving the legal notice or by making representation, the period of limitation cannot be extended by the complainant.
In the instant case, complainant purchased the Mini Bus in question on 28/04/2010 after obtaining financial assistance from the O.P. Tata Motors Finance Pvt. Ltd. and demand justice notice was issued on 03/04/2017 after a lapse of seven years. Mere sending demand notice does not continue a cause of action nor extends the period of limitation. Complaint petition has been filed on 03/05/2018 beyond the period of limitation. No doubt, complainant has not filed any application for condoning the delay. Complainant remains inactive for about seven years and suddenly sent demand notice dated 03/04/2017 to the O.P. This can not entitle the complainant for waiver of limitation period by making any representation. Any correspondence cannot also extend limitation period.
For the reasons stated hereinabove, we are of the view that this Forum have no pecuniary jurisdiction to adjudicate the complaint, complainant is not a consumer as defined under section 2(1)(d) of the Act and the complaint is barred by law of limitation.
In the result, complaint is not maintainable in its present form and in law and the complainant has no locus standi to maintain consumer complaint.
Hence,
Ordered
That the complaint case be and the same is dismissed on contest on the groundthat complainant is not a consumer as defined under section 2(1)(d) of the Act as well as limitation. Moreover, this Forum have lack of pecuniary jurisdiction to entertain the complaint.
No cost is imposed upon any of the parties.
