BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD.
C.C.No.47 OF 2014
Between :
Sri G.Sai Ram,
S/o. G. Srirama Rao, 36 years,
Occupation: Software Specialist,
Through Consumer Care Centre,
3-5-273, Vittalwadi,
Narayanguda, Hyderabad -500029. …Complainant
AND :
- The Chairman and Managing Director,
HDFC Bank, Registered Office,
Senapati Bapat Marg,
Lower Parel (West),
Mumbai – 400013.
- The Manager,
HDFC Bank, No.5-4-94 to 97,
M.G. Road, Raniganj,
Secunderabad – 500004. …Opposite parties
Counsel for the Complainant : Party in Person
Counsel for the Opposite parties : Sri Hari Hara Kumar & N.Sudarshan
Hon’ble Sri Justice B.N.Rao Nalla … President
&
Sri Patil Vithal Rao … Member
Thursday, the Nineteenth day of January
Two thousand Seventeen
Oral Order : (Per Hon’ble Sri. Patil Vithal Rao, Member).
***
The factual matrix of the case are that basing on the Online Advertisement of one, M-Junction Service Ltd., (Auto Junction), the complainant purchased one Mahendra Scorpio LX car bearing registration no. AP 04 P 0009 for a consideration of Rs.5,07,000/- on 10.07.2010 in an auction conducted by the said Agency on behalf of the opposite parties. The said vehicle was seized by the opposite parties as it’s owner, Mr. Kishore Kumar failed to clear the loan of the opposite party no.2 Bank in terms of the Agreement. After the purchase, the complainant approached RTA, Kadapa to issue No Objection Certificate to enable him to get the vehicle registered on his name from RTA, Medchal. Meanwhile, on the complaint of Kishore Kumar, alleging theft of the vehicle, the Police seized it on 04.09.2012. During the course of enquiry the RTA, Kadapa found that the RC of the vehicle was fake and intimated the same immediately to the RTA, Medchal and thereby stopped it’s transfer on the name of the complainant. The complainant filed W.P.no.31461/2010 before the Hon’ble High Court of Andhra Pradesh and obtained an order directing the Police not to seize the vehicle from him. The Police after due investigation, closed the complaint of Mr. Kishore Kumar on the ground that it was a case of Civil nature but even prior to that Mr.K.Kishore Kumar obtained an order on 25.02.2013 from the Hon’ble High Court of Andhra Pradesh in Criminal Revision Case No.10/2013 and got possession of the vehicle as interim custody. The specific allegation of the complainant is that the opposite party no.2 Bank forged RC of the vehicle and handedover to him leading to multifarious litigation resulting in lot of harassment, mental agony and financial loss to him and that he also faced an opportunity to go abroad for livelihood and also suffered ill-health. For these reasons, by attributing deficiency in service on the part of the opposite parties, the complainant sought refund of cost of the vehicle with it’s repair charges and interest and also compensation on various counts with costs.
- The opposite party no.2 filed written version and the same was adopted by opposite party no.1. Their defense, in brief, is that they never handedover the RC to the complainant after the auction as the same was not available at the time of seizure of the vehicle, but the complainant himself must have created a fake RC book to get the vehicle transferred on his name. Further, he is not a ‘consumer’ under the provisions of the Consumer Protection Act, 1986 because he is a professional purchaser of the vehicles in public auction and that the case is bad for non joinder of necessary party i.e., the Agency which conducted the auction and also his claim is barred by limitation. Therefore they sought it’s dismissal with costs.
- During the course of enquiry, the complainant has filed his evidence affidavit and marked Exs.A1 to A26 in support of his claim. The opposite parties have filed evidence affidavit of their Deputy Manager – Legal and relied on Exs.B1 to B7 in defence.
- Perused the written arguments of both the parties and heard their learned counsel.
- Having regard to the rival contentions of the parties we deem it fit to deal with the preliminary issue to the dispute with regard to it’s maintainability. Therefore, the preliminary issue is framed as under:
Whether the complainant is a ‘consumer’ under the provisions of the Consumer Protection Act, 1986?
- Point:- The opposite parties have specifically pleaded that the complainant did not purchase vehicle in question for his personal use but purchased it for a profit as a businessman. They have given particulars of the other vehicles which he had purchased on earlier occasions viz., Tata Safari Dicor, Registration no. EX, AP29BA0299, dt.30.07.2010, Tata Indicab DLE E III, Registration no. EX, AP09TV7818, dt.10.07.2010, Mahindra Scorpio LX CRDE EIII, Registration no. EX, AP04P0009, dt.12.07.2010, Tata Indica Turbo DLX V2 HVAC, Registration no. EX, AP10AG8198, dt.12.07.2010, Maruthi Zen ESTILO LXI, Registration no. EX, AP29AE4066, dt.270.07.2010 & Tata Indica NA Diesel EIII DLS, Registration no. EX, AP29BE0969, dt.30.07.2010.
The complainant did not dispute purchase of the said vehicles by him. However, in his Written Arguments, he has alleged that he purchased them on behalf of some of his friends as they did not have Pan Cards at the time of auction and as such they sought his co-operation. He has also given names of one Deepak Kulkarni, M.Suresh Kumar as the actual purchasers. But in this regard it is to be noted that, he did not plead about this aspect in his complaint and also did not file any proof thereof. The complainant claims to be a Software Specialist. It is common knowledge that for a person of his status, purchasing of several vehicles in the same month of a year for his personal use is un-warranted. Except one vehicle i.e., TATA INDICA AP 29BE0969, he had purchased all other 5 vehicles in the month of July-2010 itself. This vital aspect substantiates the defence set up by the opposite parties to the effect that he purchased the same during the course his business of reselling them i.e., a commercial purpose. As per the explanation to Section (2) (d) of the Consumer Protection Act, 1986 a commercial transaction cannot be termed a consumer dispute.
The word ‘consumer’ has been defined in the Act as under:
Section (2) (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 obtains such goods for resale or for any commercial purpose; or
- [heirs 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 [heirs 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 purposes of this 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;]
In the present case, as the transaction shows that the complainant has participated in the auction and purchased the vehicles, not for his livelihood but for commercial purpose. Therefore, in our considered opinion, he is not a ‘consumer’ and that as such the jurisdiction of this commission is ousted. In this view of the matter, we hold that the complaint is not maintainable under the law.
- The point is answered accordingly against the complainant.
- In view of this finding we need not delve into the other aspects of the dispute.
- In the result, the complaint is dismissed but in the circumstances without costs. The complainant is at liberty to pursue his remedy before the appropriate Forum, if he is so advised.
PRESIDENT MEMBER
Dt.19.01.2017
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainants : For Opposite parties :
Affidavit evidence of Sri V.Venkatesh,
Sri G.Sai Ram Deputy Manager – Legal
EXHIBITS MARKED
For Complainants :
Ex.A1 is the copy of HDFC bank writes to complainant to take possession of car, dt.12.07.2010.
Ex.A2 is the copy of Bank receipt, dt.12.07.2010.
Ex.A3 is the copy of Receipts by the HDFC bank, dt.12.07.2010.
Ex.A4 is the copy of judicial stamp paper indemnifying the bank, dt.12.07.2010.
Ex.A5 is the copy of Release order issued by HDFC bank, dt.13.07.2010.
Ex.A6 is the copy of Inventory stating that there were no documents in the car when it was handed over to the complainant’s representative, dt.21.06.2010.
Ex.A7 is the copy of HDFC Bank’s letter to RTA and Insurance Co., stating that the agreement entered into with Mr. Kishore Kumar was terminated, dt.22.07.2010.
Ex.A8 is the copy of RTA Kadapa’s No Objection Certificate in respect of the vehicle, dt.09.09.2010.
Ex.A9 is the copy of Bank’s letter to Ramgopalpet Police Station informing that they have seized the vehicle from the borrower, Mr. Kishore Kumar, dt.21.06.2010.
Ex.A10 is the copy of Hon’ble A.P. High Courts’ order appropriate remedy available to him under the Criminal Procedure Code, dt.14.07.2010.
Ex.A11 is the copy of MR. Kishore Kumar’s letter to RTA, Medchal stating that his vehicle was stolen by unknown persons, dt.21.09.2010.
Ex.A12 is the copy of Bank’s letter to TRA Medchal stating that it sold the vehicle in question to the complainant, dt.27.09.2010.
Ex.A13 is the copy of Bank’s letter dt.14.12.2010 to the Asst. Commissioner Police, West Zone, CCS stating that it released he vehicle to the complainant who was the highest for the car in an auction, dt.14.12.2010.
Ex.A14 is the copy of Bank’s letter dt.13.01.2011 to the ACP, West Zone, CCS stating that normally the Original RC would not be available with the financier/bank, dt.13.01.2011.
Ex.A15 is the copy of Loan on gold ornaments obtained by the complainant’s wife from the HDFC Bank, dt.24.12.2012.
Ex.A16 is the copy of Sale Deed of Property dated 16.03.2011 sold by the complainant and his wife.
Ex.A17 is the copy of Charges for repair of the vehicle, dt.16.07.2010.
Ex.A18 is the copy of Hospital bills dated 27.03.2013 of Medwin Hospitals.
Ex.A19 is the copy of DTC Kadapa’s letter of 15.12.2010 to the Sub-Inspector of Police, Kadapa.
Ex.A20 is the copy of Hon’ble A.P. High Court’s Order of 15.10.2010 not to seize the vehicle from the complainant.
Ex.A21 is the copy of the CID’s Final Report stating it was a dispute between Mr. Kishore Kumar and the HDFC Bank who had seized and auctioned the vehicle, dt.07.10.2013.
Ex.A22 is the copy of Hon’ble A.P. High Court’s Order to release the vehicle to Mr. Kishore Kumar on certain conditions, dt.25.02.2013.
Ex.A23 is the copy of University of M.C.A. Certificate & work permit U.K.
Ex.A24 is the copy of DTC Kadapa reply Letter, dt.18.06.2013.
Ex.A25 is the copy of RC from Bank.
Ex.A26 is the copy of e-mails to Bank dt.11.08.2010.
For Opposite parties :
Ex.B1 is the copy of Agreement Tata Safari Dicor, Registration no. EX, AP29BA0299, dt.30.07.2010,
Ex.B2 is the copy of Agreement Tata Indicab DLE E III, Registration no. EX, AP09TV7818, dt.10.07.2010,
Ex.B3 is the copy of Agreement Mahindra Scorpio LX CRDE EIII, Registration no. EX, AP04P0009, dt.12.07.2010,
Ex.B4 is the copy of Agreement Tata Indica Turbo DLX V2 HVAC, Registration no. EX, AP10AG8198, dt.12.07.2010,
Ex.B5 is the copy of Agreement Maruthi Zen ESTILO LXI, Registration no. EX, AP29AE4066, dt.270.07.2010
Ex.B6 is the copy of Agreement Tata Indica NA Diesel EIII DLS, Registration no. EX, AP29BE0969, dt.30.07.2010.
Ex.B7 is the copy of Agreement M Junction, Mahindra Scorpio, Registration no.AP04P0009, dt.11.09.2012.
PRESIDENT MEMBER
Dt.19.01.2017
