CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/13/661
Instituted on :10.12.2013
Jaiprakash Sahu, S/o Shri Ramdhani Sahu,
Profession : Transporter, R/o : Ward No.4,
Kenapara, Village : Telaikachar,
P.S. Jaynagar, District Surajpur (C.G.) … Appellant
Vs.
1. Tata Motors Limited,
Through : Regional Manager,
Tata Motors Limited, Office : Maruti Heights,
Third Floor, Mohba Bazar, G.E. Road, Raipur,
Tehsil & District Raipur (C.G.)
2. Shivam Motors Pvt. Ltd.,
Authorized seller & Sub Dealer
Shivam Motors Pvt. Ltd. Ambikapur,
Manendagarh Rad,
Ambikapur, District Surguja (C.G.) … Respondents
PRESENT :
HON’BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON’BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES :
Shri R.K. Bhawnani, for appellant.
Shri Santosh Tiwari, for respondent No.1.
None for the respondent No.2.
ORDER
Dated : 25/02/2015
PER :- HON’BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 07.11.2013, passed by the District Consumer Disputes Redressal Forum, Surguja – Ambikapur (C.G.) (henceforth “District Forum") in Complaint Case No.140/2012. By the impugned order, complaint has been dismissed by the District Forum.
2. Briefly stated the facts of the complaint are that : for operation of his business, the appellant (complainant) purchased Mini Truck Tata 407 bearing registration No.C.G.15-AC-0790 from the respondent No.2 which is manufactured by the respondent No.1 at the cost of Rs.6,28,554/- with the financial help of Cholamandalam Investment & Finance Company Limited. Warranty and Guarantee of 36 months was provided in respect of the said vehicle. After 2-3 months of the date of purchase of the said vehicle, gear box no.2852531YY 846470 was having some problem, which was neither replaced nor got repaired by the respondents. The appellant (complainant) spent a sum of Rs.2,00,000/- in repairing of the said gear box and thereafter also the gear box was giving problem. In the gear box, there was manufacturing defect, which was not cured in spite of getting repaired the same due to which other parts of the vehicle were damaged. The mechanic informed that a new gear box would be installed. Due to damage of the gear box, the appellant (complainant) could not operate his business. The vehicle was parked in stationary condition and he was required to pay a sum of Rs.20,000/- as installment to the finance company and to pay salary to the driver. Due to non-payment of the installment the amount of interest has also been increased. Therefore, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The respondent No.1 (O.P.No.1) has filed its written statement before the District Forum and averred that before purchasing the vehicle in question, the appellant (complainant) had taken test drive and he also understood regarding the service to be provided after purchase of vehicle and terms and condition and after his full satisfaction he purchased the vehicle in question and at that time the appellant (complainant) had not pointed out any deficiency. As per clause 9 of the warranty the appellant (complainant) has only those rights which have been mentioned in the warranty document. The appellant (complainant) purchased the vehicle in question for commercial purpose and not for earning his livelihood by self employment. The appellant (complainant) has not averred in the complaint to the effect that he purchased the vehicle for self employment and due to which he does not come within purview of consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. The respondent No.1 (O.P.No.1) has appointed dealer on "principal to principal" basis and for the act committed by the dealer, the respondent No.1 (O.P.No.1) is not responsible. The manufacturing defect in the vehicle are different from the simple defect and the burden lies on the appellant (complainant) to prove that the vehicle in question is having manufacturing defect. The appellant (complainant) purchased the vehicle in question after obtaining financial help, therefore, the appellant (complainant) is only bailee of the financer and complaint in respect of such vehicle can only be filed after obtaining permission of the financer. The appellant (complainant) has not mentioned anywhere in the complaint that he obtained permission of the financer and therefore, the complaint is not maintainable. It has also been pleaded that the appellant (complainant) has not done any free service, therefore, the warranty in respect of the vehicle in question was lapsed, but even then the respondent No.1 (O.P.No.1) during the warranty period has removed the problem in the gear and installed, and also replaced necessary parts, free of cost and after satisfying the appellant (complainant) gave delivery of the vehicle in question. Thus, there was no manufacturing defect in the gear box of the vehicle in question and to prove the manufacturing defect in the vehicle in question, the appellant (complainant) has not produce opinion or report of any expert. From the date of purchase of the vehicle i.e. 01.02.2011 to 16.07.2012 the appellant (complainant) run the vehicle in question 53358 km. If there was any manufacturing defect in the vehicle then the vehicle could not run 53358 km. The vehicle of the appellant (complainant) was not parked in stationary condition, but it is in running and roadworthy condition. The appellant (complainant) has not suffered loss to the tune of Rs.5,000,000/-. The District Forum, Surguja – Ambikapur has no jurisdiction to hear the complaint. The appellant (complainant) has filed the complaint without any cause of action. The appellant (complainant) is not entitled to get a sum of Rs.5,00,000/- and cost of litigation from the respondent No.1 (O.P.No.1). The appellant (complainant) has filed the complaint to harass the respondent No.1 (O.P.No1), therefore, the complaint be dismissed with compensatory cost.
4 Before learned District Forum, the respondent No.2 (O.P.No.1) has not appeared and has not filed any written statement.
5. After having considered the material placed before it by both the parties, learned District Forum has dismissed the complaint by the impugned order.
6. The appellant (complainant) has filed documents. Document A-1 is Tax Invoice dated 01.02.2011 issued by Shivam Motors (P) Limited, A-2 is Operator's Service Book, A-3 is invoice dated 18.04.2011 issued by Babra Motors, Ambikapur, A-4 is invoice dated 11.09.2011 issued by Babra Motors, Ambikapur, A-5 is bill dated 02.11.2011, A-6 is Cash Memo dated 03.12.2011 issued by Shivam Motors (P) Ltd., A-7 is Cash/Credit Memo dated Nil issued by Ambika Auto Sales & Service, Ambikapur, A-8 is Invoice dated 04.12.2011 issued by Babra Motors, Ambikapur, A-9 is Delivery Challan dated 7.12.2011 issued by Ambika Auto Sales & Service, A-10 is estimate, A-11 is Cash Memo dated 19.12.2011 issued by Shivam Motors (P) Ltd., A-12 is estimate dated 01.02.2012, A-13 is Cash Memo dated 01.02.2012 issued by Shivam Motors (P) Ltd., A-14 is bill dated 02.02.2012 issued by Gurunanak Motor Stores, Ambikapur, A-15 is Cash Memo dated 03.02.2012 issued by Shivam Motors (P) Ltd., A-16 is Cash Memo dated 15.02.2012 issued by Gurunanak Motor Stores, Ambikapur, A-17 is photocopy of Cash Credit Memo dated 18.03.2012 issued by Ambika Auto Sales & Service, Ambikapur, A-18 is letter dated 22.02.2012 sent by the appellant (complainant) to the Regional Manager, Shivam Motors, Bilaspur (C.G.), A-19 is postal receipt, A-20 is receipt dated 31.10.2011 issued by Cholamandalam Investment and Finance Company Ltd., A-21 is Cash/Credit Memo dated 26.07.2012 issued by Ambika Auto Sales & Service, Ambikapur, again A-17 is original of Cash/Credit Memo dated 18.03.2012 issued by Ambika Auto Sales & Service, Ambikapur, A-22 is delivery challan dated 20.07.2012 issued by Ambika Auto Sales & Service, Ambikapur, A-23 is delivery challan dated 20.08.2012 issued by Ambika Auto Sales & Service, Ambikapur, A-24 is Cash/Credit Memo dated 12.09.2012 issued by Ambika Auto Sales & Service, Ambikapur, A-25 is photocopy of driving licence of Dinesh Prasad. The appellant (complainant) has also filed Operator's Service Book in original.
7. The respondent No.1 (O.P.No.1) has also filed documents. D-1 is Power of Attorney, D-2 is Warranty.
8. Shri R.K. Bhawnani, learned counsel appearing for the appellant (complainant) has argued that the impugned order passed by the learned District Forum is contrary to law and is liable to be set aside. He further argued that the appellant (complainant) purchased the vehicle Tata 407 bearing registration No.C.G.15-AC-0790 from the respondent No.2 (O.P.No.2) and the vehicle in question was manufactured by the respondent No.1 (O.P.No.1). The said vehicle was giving trouble from very beginning. The warranty of 36 months was provided in respect of the said vehicle and after 2-3 months from the date of purchase, the gear box of the said vehicle started giving problem which was neither replaced nor repaired by the respondents (OPs) and they forced to repair the vehicle from outside and the appellant (complainant) spent a sum of Rs.2,00,000/- in repairing of the gear box of the vehicle in question. He further argued that there was manufacturing defects in the gear box of the vehicle in question. On the direction of the District Forum the vehicle was inspected by Professor Vinod Kumar Dewangan, who gave his report in which he found that gear box of the vehicle in question is defective, but the learned District Forum has wrongly disbelieved the report of the expert and dismissed the complaint. The impugned order passed by the District Forum is erroneous and is liable to be set aside.
9. Shri Santosh Tiwari, learned counsel appearing for the respondent (O.P.No.1) has supported the impugned order passed by the learned District Forum and has argued that the appellant (complainant) is not consumer because he purchased the vehicle for commercial purpose and learned District Forum has wrongly held that the appellant (complainant) is "consumer". The appeal is liable to be dismissed. Other parts of the impugned order, is just and proper and does not call for any interference by this Commission.
10. Before us none appeared for the respondent No.2 (O.P.No.1) on 27.01.2015 when the case was fixed for final hearing.
11. We have heard learned counsel for the parties and have also perused the record of the District Forum.
12. Firstly, we shall consider whether the appellant (complainant) is consumer ?
13. Learned District Forum has relied on judgment of Hon'ble National Commission in M/s Larsen and Toubro Ltd. vs. Krishan Kumar Dhanker and Ors. 2009 (3) CPR 312 (NC) and observed that even if the vehicle is sold for commercial purpose the purchaser will be "consumer" under Section 2(1)(d)(i) of the Act during the period of warranty.
14. We have perused the averments made by the appellant (complainant) in the complaint.
15. In the complaint, the appellant (complainant) specifically pleaded that he purchased Mini Truck 407 for operation of his business. The appellant (complainant) has also filed his affidavit. In para 2 of his affidavit dated 18.09.2012 he deposed that the vehicle in question suffered defects during warranty period therefore he could not operate his business smoothly and he suffered loss of about Rs.5,00,000/- and therefore he has filed complaint before the District Forum. In his detailed affidavit dated 21.03.2013, the appellant (complainant) in para 1 has specifically deposed that the vehicle in question was purchased by him for commencing his business. It appears that the appellant (complainant) purchased the vehicle in question for commercial purpose.
16 In Birla Technologies Limited v. Neutral Glass and Allied Industries Limited, (2011) I SCC 525 Hon’ble Supreme Court observed thus :
“7. By its order dated 4.3.2004, the State Commission accepted the appellant’s preliminary objection and dismissed the complaint. The respondent complainant, therefore filed First Appeal No.218 of 2004 before the National Commission. By its order dated 17.12.2009, which is impugned here, the National Commission reversed the order of the State Commission and held that the “goods” purchased by the respondent from the appellant were being used by the respondent for a commercial purpose and, therefore, the respondent was not a “consumer” within the meaning of Section 2(1)(d)(i) of the Act. However, the National Commission further held that notwithstanding such findings, the respondent was entitled to maintain a complaint under the Act with respect to the deficiency in service during one-year warranty period with respect to the said goods relying on Section 2(1)(d)(ii) of the Act.
10. Shri Siddharth Bhatnagar, learned counsel appearing on behalf of the respondent could not dispute this proposition and fairly accepted that the complaint was in fact filed on 26-6-2003 i.e. much after the amendment to Section 2(1)(ii), by which the following words were added :
“but does not include a person who avails of such services for any commercial purpose”.
11. In view of the findings of the National Commission that the goods sold by the appellant to the respondent complainant amounted to “goods” and that such goods were purchased for commercial purpose for earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary.
12. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15-3-2003 by way of the amendment by the same Amendment Act, as it is nobody’s case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent’s livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto.”
17. In the case of Cheema Engineering Services vs. Rajan Singh (1997) 1 Supreme Court Cases 131, Hon'ble Supreme Court observed thus :-
"6. In other words, the Explanation excludes from the ambit of commercial purpose in sub-clause (1) of Section 2(1)(d), any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self employment. Such purchase of goods is not a commercial purpose. The question, therefore, is whether the respondent has been using the aforesaid machine for self-employment? The word "self-employment" is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but "merely earning livelihood in commercial business", does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. 'He' includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that, therefore, it is not a commercial purpose. The orders of all Tribunals stand set aside. The matter is remitted back to the District Forum. The District Forum is directed to record the evidence of the parties and dispose of it in accordance with law within a period of six months from the date of the receipt of this order."
18. In Rajeev Metal Works and Others v. Mineral & Metal Trading Corporation of India Ltd. (1996) 9 SCC 422, Hon'ble Supreme Court observed thus :-
"6. Having given our anxious and very careful consideration to the respective contentions, the question emerges whether the appellant firm is a consumer. The word 'consumer' has been defined under Section 2(1)(d)(i) and (ii) thus :
"(d) 'consumer' means any person who, -
- 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 obtain such goods for resale or for any commercial purpose; or
- 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 or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person."
7. Clause (i) provides that one who 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 promise, 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, is a consumer. The admitted case is that this does not apply. The question, therefore, is whether the service of the respondent availed by the appellants is covered under Section 2(1)(d)(ii)? Whether the transaction in the nature of buying the goods for a consideration which has been paid or promised? Whether the transaction in question excludes the person who obtains such goods for resale or for any commercial purpose from the purview of the Act? It is true as contended for the appellants that the definition requires to be interpreted broadly so as to give effect to the legislative intention envisaged under the Act. But when the legislature having defined the term 'consumer' in broader terms, sought to exclude certain transactions from the purview of the Act what could be the meaning that would be assigned to the exclusionary clause, viz., "but does not include a person who obtains such goods for resale or for any commercial purpose". The intention appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, the object of the Act appears to be to exclude such commercial transactions from the purview of the Act. Instead, legislature intended to confine the redressal to the services contracted or undertaken between the seller and the 'consumer' defined under the Act. It is seen that the appellants admittedly entered their letters of credit with the respondent. The respondent is a statutory authority to act as canalised agency on behalf of the industries to procure required goods on their behalf from the foreign seller and acts in that behalf in terms of the letter of credit and conditions enumerated thereunder. It is seen that the respondent did not undertake any direct responsibility for supply or liability for non-supply of the goods. On the other hand, the appellants had solicited to have the goods supplied to it through the respondent and opened letter of credit in favour of the respondent. After collecting requirement from various industries in the country admittedly a consolidated demand for supply of the required quantity of the G.P. Sheets was indented with foreign sellers so as to procure the required goods for onward supply to the appellant and others. The goods supplied were required for commercial purpose, i.e., for manufacture and resale as finished goods during the course of their commercial business. Under the circumstances, the appellants intended to purchase these goods for commercial purpose, namely to manufacture the tin sheets for resale. It is true that the word 'resale' used in the exclusionary clause of Section 2(1)(d) (i) was used in connection with the purchase of goods defined in the Sale of Goods Act for commercial purpose The ultimate object of the supply of the goods, namely, G.P. sheets to the appellants was manufacture of finished goods for resale. The goods were intended to be used for commercial purpose. Thus, considered, we are of the opinion that the appellants are not consumers by virtue of the exclusionary clause under Section 2(1)(d)(ii). Therefore, they would not come under Section 2(1)(d)(ii) of the Act. Since the object of the supply and purchase of the goods was commercial purpose, it would certainly come within the exclusionary clause of Section 2(1)(d)(ii). Otherwise, if the construction sought to be put up by Mr. Sanghi is given effect to, while foreign sellers are not liable under the Act within the definition of Section 2(1)(d) as they get excluded from the purview of the Act, the canalising agency would be fastened with the liability. Thereby, the definition of the word 'consumer' under Section 2(1)(d)(ii) is not attracted.
8. Consequentially, clause (ii) of Section 2(1)(d) does not apply. Considered from this perspective, we are of the opinion that the appellants are not consumer under Section 2(1)(d)(ii) of the Act. Thereby the complaint would not lie under Section 21 of the Act."
19. In M/s Rohit Chemical & Allied Industries Pvt. Ltd. National Research Development Corporation, IV (2013) CPJ 87 (NC), Hon’ble National Commission observed thus :
“22. In Laxmi Engineering Works v. P.S.G. Industrial Institute, AIR 1995 SC 1428, it was held :-
“12. Now coming back to the definition of the expression ‘consumer’ in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression ‘resale’ is clear enough. Controversy has, however, arisen with respect to meaning of the expression “commercial purpose”. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. ‘Commercial’ denotes “pertaining to commerce” (Chamber’s Twentieth Century); it means “connected with, or engaged in commerce; mercantile; having profit as the main aim” (Collins English Dictionary) whereas the word ‘commerce’ means “financial transactions especially buying and selling of merchandise, on a large scale” (Concise Oxford Dictionary). 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(1)(d) 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. This is 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”.
20. In Kishore Ramchandra Bhide v. Habibat India Agro Development Pvt. Ltd. & Ors., IV (2012) CPJ 706 (NC), Hon’ble National Commission, observed thus :-
“7. The Supreme Court has discussed the term ‘consumer’ in the celebrated authority 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(1)(d) 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”.
A person cannot be said to be consumer if he purchases the second house."
21. In Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC)., Hon’ble National Commission observed thus :-
“3. From the facts narrated in the complaint, it is clear that the Turbine (T.G. Set) in question had been purchased by the complainant for commercial purpose and, purchase for commercial purpose is excluded under Section 2(1)(d)(i) of the C.P. Act. Likewise, the services of the warranty for commercial purpose are also excluded for commercial purpose under Section 2(1)(d)(ii) w.e.f. 15.3.2003. A Division Bench of this Commission to which one of us (R.K. Batta, J) was a party has after scrutiny of a large number of judgments, which actually pertain to the pre-amendment period i.e. before 15.3.2003, in Meera Industries v. Modern Constructions, R.P. No.1765 of 2007 decided on 22.5.2009, wherein it was held :
“In view of the above, we are of the opinion that whether a customer buys goods for commercial purpose and avails of services attached to the goods in the nature of warranty, he cannot be considered to be a consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(d)(ii) of the Act, which came into force w.e.f. 15.3.2003. In view of this, the complainant cannot be held to be a consumer with reference to the services attached to the warranty and the complaint is not maintainable”.
[See also judgment dated 19.01.2015 of Hon'ble National Commission in Revision Petition No.63 of 2015 Ibrahim Khan vs. Srei Equipment Finance Pvt. Ltd.].
22. On the basis of above facts, it appears that the vehicle in question was not purchased by the appellant (complainant) for his personal use, but it was purchased for commercial purpose, therefore, the appellant (complainant) does not come within purview of “consumer” as defined in the Consumer Protection Act, 1986.
23. On merits also we find that the appellant (complainant) has not been able to prove that there is any inherent manufacturing defects in the vehicle in question. Professor Vinod Kumar Dewangan, who inspected the vehicle in question and gave his report, during his cross examination by respondent No.1 (O.P.No.1) has stated thus :-
“2 मैंने और श्री रमेश पाण्डेय ने दिनांक-21.07.2013 को उक्त वाहन की गैयर बाॅक्स खुलवाकर उसकी जांच किया था, जांच पर मैंने और श्री रमेश पाण्डेय ने रिवर्स गियर मैसिन ठीक ढंग से नहीं हो पा रहा था और उसमें कट कट की आवाज आ रही थी, जिसके कारण गैयर की दांतें टूट जा रही थी, उक्त कारण से गियर बाक्स सुचारू ढंग से कार्य नहीं कर रहा था। हमने जांच में उक्त वाहन के गेयर बाक्स में तकनीकि त्रुटि होना पाया था।
8. यह कहना सही है कि हमने अपने जाँच प्रतिवेदन में उक्त वाहन के गियर बाक्स में निर्माण संबंधी त्रुटि होने का उल्लेख नहीं किया है, स्वतः कहा कि गियर बाक्स जिस कम्पनी का है उसके विशेषज्ञता प्राप्त कर्ता व्यक्ति के द्वारा जाँच बाद ही निर्माण संबंधी त्रुटि है अथवा नहीं के संबंध में जानकारी दी जा सकती है, स्वतः कथन समाप्त।’’
24. It appears that the expert has not been able to give exact report whether the defects found in the gear box was manufacturing defect. According to the respondents (OPs), the appellant (complainant) could not brought the vehicle in their service centre for conducting free servicing. For the first the time vehicle in question was brought in the service centre of the respondents (OPs) when the vehicle had already ran about 49125 kms. From the bare perusal of record of the District Forum, it appears that there is no mention in the job card that the gear box of the vehicle in question is defective. The appellant (complainant) obtained expert opinion of Professor Vinod Kumar Dewangan, but it did not support the allegations leveled by the appellant (complainant), therefore, merely making allegation that the vehicle in question is having inherent manufacturing defect is not sufficient to hold that the vehicle in question is having any manufacturing defect.
25. In view of aforesaid discussions, we are of the firm view that the conclusion reached to by the District Forum in the impugned order is reasonable, just and proper and the District Forum has not exceeded its jurisdiction. The impugned order dated 07.11.2013, passed by the District Forum, does not suffer from any irregularity or illegality and does not call for any interference by this Commission.
26. Therefore, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/02/2015 /02/2015
