Jammu and Kashmir

Jammu

CC/46/2017

Mohd. Shakeel - Complainant(s)

Versus

Tata Motors - Opp.Party(s)

Mahmood Ul Haq

08 May 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No                  259/DFJ           

 Date of  Institution   :    29-09-2016

 Date of Decision      :      20-04-2018

 

Mohd.Shakeel,

S/O Abdul Rashid,

R/O Chassote Tehsil Chassana,

District Reasi A/P Sunjwan,Jammu.

                                                                                                                                            Complainant

                          V/S

1.Tata Motors  H.No.24,

   Homi Modi Street  Fort Mumbai-400001,

  Through its General Manager.

2. National Garage,B.C.Road,Jammu-180005,

    Through its Proprietor.

3.Transport Commissioner,Rail Head Complex,

    Jammu.

4.Assistant Transport Officer(ARTO),Reasi.

                                                                                                                            Opposite parties

CORAM

                  Khalil Choudhary             (Distt.& Sessions Judge)  President

                  Ms.Vijay Angral                                                             Member

                  Mr.Ghulam Sarwar Chauhan                                      Member

 

In the matter of Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.Mehmood-Ul-Haq,Advocate for complainant, present.

Mr.Rajesh Tingloo,Advocate for Ops,present.

 

                                                           ORDER

                                                 Facts relevant for the disposal of complaint in hand are that, the complainant being an uneducated unemployed youth and in order to earn his livelihood purchased a vehicle namely, Tata Tipper having Model No.SK1613CAB,chasis No.MAT 373174FIP30178 and engine No.697TC69PUY155058 on,11-02-2016, by availing loan from J&K Bank Chassana,Reasi from OP2, who is authorized dealer of OP1 and temporary No.JMUBJ-7628 was allotted for one month, copy of sale invoice and temporary number is annexed as Annexure-A.According to complainant the tipper is BS-III type,he under law  applied before OP4 for the issuance of registration certificate and route permit which has not been issued till date on the ground that the OP3 has banned the registration of such type of vehicle and OP1&2 are well aware about this fact ,despite the fact that OP2 has sold the vehicle to complainant with malafide intention and it is clear cut case of fraud and cheat, copy of form 20 and certificate n is annexed as Annexure-B.Allegation of complainant is that he has obtained loan for an amount of Rs.13.00 lacs from the bank and regularly paying the instalments without earning a single penny from the said vehicle and it is pertinent to mention here that including whole expenditure incurred over built of body, insurance policy and other expenses,i.e.upto Rs.20.00 lacs,copy of retail invoice & certificate issued by fabricator is annexed as Annexure-C. The complaint further proceeds on the premise that complainant approached numerous times to OP2 for replacement of said tipper, but same has been refused by them and in order to pacify, they have shown documents that they are also pursuing the matter with OP3,copy of list of purchaser is annexed as Annexure-D.Constrained by the act of Ops,complainant served two legal notices dated 31-05-2016 and 09-08-2016,but till date none of the Ops have given any reply to the said notice, but in the month of September an intimation letter by the office of OP3 has been issued that ban has been lifted and ready to register the vehicle, copy of legal notices and postal receipt is annexed as Annexure-E, hence the present complaint. In the final analysis, complainant prays for compensation of Rs.9.70  lacs for causing harassment, mental agony and inconvenience, including litigation charges.

                      OP1 filed written version and resisted the complaint on the ground that the complaint filed by the complainant is not maintainable and the same is liable to be dismissed, in as much as, the Transport Commissioner has already given No Objection Certificate dated 10-08-2016 alongwith the No Objection/Approval from Ministry of Road Transport and Highway to register these vehicles,copy of  letter dated 10-08-2016 by the Transport commissioner and approval by Ministry vide letter dated 08-08-2016 are annexed as Annexure-A&B.The OP1 further submitted that Transport Commissioner had sanctioned the introduction and registration of the Tipper which was sold to complainant on the basis of order No.01 TC of 2011,on,20-01-2011,whereby registration of said tipper was permitted by the State of Jammu & Kashmir,copy of letter dated,20-01-2011 is annexed as Annexure-C.The OP1 further resisted the complaint on the ground that vehicle in question was purchased for Commercial purposes, ,therefore,complainant cannot be termed as Consumer and the present claim raised by him cannot be termed as a Consumer disput in  terms of J&K Consumer Protection Act,1987 as amended upto date.In the final analysis prayed for dismissal of complaint.

                  At the same time,OP2 filed objections and resisted the complaint on the ground that complainant is not a consumer as has been  defined under section 2(d)(i)of the J&K Consumer Protection Act,1987 as the vehicle purchased is a commercial vehicle for commercial activities and there is no deficiency in service or un fair trade practice by OP2.It is further submitted that Govt.of India,Ministry of Road Transport and Highways had already granted NOC to register vehicles in Jammu and Kashmir conforming to BS-III standards vide letter dated 08-08-2016 which has been communicated to complainant. Even the complainant has admitted that fact in para 6 of complaint. It is submitted that OP3 never banned the vehicles of BS-III as is being alleged alleged. It is submitted that Ministry of Road Transport and Highways issued notification for registering BS IV tippers only and OP3 vide letter No.TC/JK/ESC/439-31 dated 11-04-2016 made a representation to Joint Secretary to Govt.of India (T)mentioning in the letter that as BS-IV tippers are virtually not available as they were largely under various stages of production and were not likely to hit the markets in another six months. It has been further mentioned in the letter that multiple development activities are being carried out in the State particularly in infrastructure of Roads and Tunnels. on availability of tippers is bound to adversely affect the development projects in the State, as such OP3 took the matter with Govt.of India, copy of letter is annexed as Annesxure-R1.Rest of the contents of complaint are denied.

              The complainant adduced evidence by way of duly sworn his own affidavit and affidavit of Ghulam Nabi.The complainant has placed on record copy of sale certificate, copy of tax invoice,copy of temporary certificate of registration, copy of certificate, copy of retail invoice, copies of certificate issued by fabricator, copy of letter issued by  National Garage to Transport Commissioner Jammu & Kashmir, copy of list of purchasers and copies of legal notice.

               On the other hand OP2 has adduced evidence by way of affidavit of Gurutaj Singh,Sr.Dy.General Manager of M/S National Garage,B.C.Road,Jammu.The OP2 has placed on record copies of communications and copies of list of  vehicles.

                   We have perused case file and heard L/Cs for the parties at length.

                    Briefly stated, facts of the case are that; complainant being an uneducated unemployed youth and in order to earn his livelihood purchased a vehicle namely, Tata Tipper having Model No.SK1613CAB,chasis No.MAT 373174FIP30178 and engine No.697TC69PUY155058 on,11-02-2016, by availing loan from J&K Bank Chassana,Reasi from OP2, who is authorized dealer of OP1 and temporary No.JMUBJ-7628 was allotted for one month. According to complainant the tipper is BS-III type, he under law  applied before OP4 for the issuance of registration certificate and route permit which has not been issued till date on the ground that the OP3 has banned the registration of such type of vehicle and OP1&2 are well aware about this fact ,despite the fact that OP2 has sold the vehicle to complainant with malafide intention and it is clear cut case of fraud and cheat.Allegation of complainant is that he has obtained loan for an amount of Rs.13.00 lacs from the bank and regularly paying the instalments without earning a single penny from the said vehicle and it is pertinent to mention here that including whole expenditure incurred over built of body, insurance policy and other expenses,i.e.upto Rs.20.00 lacs. The complaint further proceeds on the premise that complainant approached numerous times to OP2 for replacement of said tipper, but same has been refused by them and in order to pacify, they have shown documents that they are also pursuing the matter with OP3.Constrained by the act of Ops,complainant served two legal notices dated 31-05-2016 and 09-08-2016,but till date none of the Ops have given any reply to the said notice, but in the month of September an intimation letter by the office of OP3 has been issued that ban has been lifted and ready to register the vehicle,

                     On the other hand, stand of OP1&2 is that the vehicle in question was purchased for “Commercial purposes”, and as such the complaint is not maintainable, as the complainant does not fall within the definition of Consumer.      

                           The evidence lead by the parties first needs to be gone through which on bare perusal of it reveals clear reiteration of those facts as the parties have put in their respective pleadings, therefore, evidence lead by the parties, both complainant and Ops did not require fresh recital so to avoid repetition in the case.

                               Now the question arises here whether the complainant is consumer or not and the vehicle in question is commercial or not?

               The definition of expressionconsumerin clause (d)of Section 2 of the J&K Consumer Protection Act,1987 excludes from its purview “a person who obtains such goods for resale or for any commercial purpose.”The question that arises in the complaint is what is the meaning and ambit of the expression any commercial purpose. In the said definition which has been replaced by Amendment substituted by Act XIX of 1997,an explanation has been added to the definition of the expression consumer with effect from 1997.The explanation reads:

    Explanation-For the purposes of sub-clause(i),”commercial purpose “does not include use by a consumer of goods bought and used by him exclusively for the purposes of earning his livelihood, by means of self-employment.

        

                       The complainant purchased the vehicle,namely,Tata Tipper cannot be called as commercial purpose and complainant cannot certainly be said to be carrying on business of earning profit, but he purchased the vehicle for earning his livelihood as the complainant mentioned in para 1 of the complaint and same version was also supported by the complainant in his evidence affidavit and also his witness,namely,Ghulam Nabi in para 1 of his affidavit.

             Here we would like to refer to the judgment of Honble Supreme Court in case titled Laxmi Engineering Works V/S Rs.G.Industrial Institute reported as 1995 AIR (SC)1428,wherein their Lordships have been pleased to hold as

                               Headnote:Consumer Protection Act,1986

 Section 2(d)-Definition of Consumer person who buys goods and uses himself exclusively for the purpose of earning his livelihood by means of self employment, cannot be said to be for commercial purpose and would be included within the definition of consumer.

                 Now another question arises whether OP1&2 sold the vehicle in question which was banned by the competent authority?

                  It has been revealed from the Sale Certificate dated 11/2/2016 and tax invoice dated 11/02/2016 that the vehicle in question was purchased from OP2 and also issued temporary certificate of registration. The said facts also admitted by OP1&2 in their written version, but it has been revealed from various documents of Assistant Regional Transport Officer,Reasi and Transport Commissioner & Chairman State Transport Authority J&K,Jammu that the vehicle in question was banned and as such cannot be registered and later on said ban was lifted by Govt.of India and also communicated to State Transport Authority.

                But now question arises why OP 1&2 sold the vehicle when the same was banned by the concerned authority. The complainant purchased the vehicle in question on 11-02-2016 and the vehicle was registered in the month of September,2016.It is also revealed from the documents annexed with the complaint that the complainant also availed loan for an amount of Rs.13.00 lacs  from the bank and suffered loss for near about eight months for which the Ops1&2 are equally and collectively liable for the pecuniary loss and mental trauma occurred to him for not plying the vehicle

 

                            In view of settled preposition of law, the complainant herein this is entitled to compensation for causing unnecessary harassment and mental agony as the vehicle remained parked ideally for a period of eight months at the house of complainant because of non registration of vehicle.

 

                         Therefore, in view of the foregoing reasons the complaint filed by the complainant for redressal of his grievance is allowed and OPs are directed to pay compensation of Rs.75,000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.10,000/-.The OPs shall comply the order within one  month from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                              Khalil Choudhary

                                                                         (Distt.& Sessions Judge)

Announced                                                              President

 20-04-2018                                                   District Consumer Forum

Agreed by                                                                Jammu.

 

Ms.Vijay Angral          

Member        

 

Mr.Ghulam Sarwar Chauhan,

Member