Mr.R.K.bawri, Member—Heard Mr. S.P.Sharma, learned Counsel for the Complainant and also Mr.J.Roy with Mr.H.S.Thangkiew, learned counsels for the Opposite parties.

 

2. The Complainant has filed this petition under Section 11 of the Consumer protection Act, 1986 (hereinafter called ‘the Act’) for recovery of the sum of Rs. 6,58,887/- along with interest thereon, on account of alleged defective engine fitted in the Tata Diesel vehicle, Model SE1612/42 GBS40 sold by the Opposite party No.4 on behalf of Opposite party No.1 to the Complainant on 25.2.95.

 

3. According to the Complainant the engine of the vehicle supplied to him suffered from the major defects from the date of purchase which was neither timely and successfully repaired nor replaced by the Opposite parties despite the warranty given by them and the Complainant suffered considerable monetary loss to the tune of Rs.4,50,000/- on account of non-running of the vehicle for months together besides suffering mental agony and harassment by the gross negligence and deficiency in service by the Opposite Parties. Moreover, the Complainant was compelled to pay the repairing bills amounting to Rs.41,585/- as well as bill for Rs.93,537/-, being the cost of a reconditioned half engine intended to replace the defective engine, to Opposite Party No.4 on the assurance that these would be reimbursed by the Opposite party No.1 of which only a sum of Rs.11,638.26 was reimbursed.

 

4. The Opposite parties filed their written statement in response to the Complaint. Further affidavits were also filed on behalf of both the complainant and the Opposite Parties who at the outset raised objections to the maintainability of the Complaint Petition stating that the petition deserved to be dismissed as being not maintainable on the grounds that –

 

(a)    The subject matter of the Complaint falls within the realm of the Civil Court and hence this Commission lacks jurisdiction to decide the present complaint.

 

(b)   The Complaint case involves complicated and disputed questions of law as well as fact which cannot be satisfactorily determined by the Consumer Forum under the Act. More so, for determination of the complicated issues of fact, evidence is necessary which can only be examined by the Civil Court.

 

(c)    The vehicle in question was purchase by the Complainant to use as a transport vehicle for carrying goods for commercial purpose for earning profit in large scale and as such the complainant is not a consumer within the meaning of Sec.2(1) (d) (i) of the Consumer protection Act, 1986.

 

5. The first contention of the Opposite Parties that the subject matter of the complaint falls within the realm of the Civil Court and hence this Commission lacks jurisdiction to decide the present complaint deserves to be rejected outright in view of section 3 of the act which states that:

 

“The provisions of this act shall be in addition to and not in derogation of the provisions of any other law fro the time being in force.”

 

It is thus clear that the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The provisions of this act give the Consumer an additional remedy besides those that may be available under other existing laws. Besides the bare statement that this Commission lacks jurisdiction, no material has been brought or argument advanced by the Opposite Parties to show how and under what provision of law this Commission lacks jurisdiction to decide the present complaint . It is therefore held that, on this count, this commission does not lack jurisdiction to decide the instant complaint.

 

6. The next argument of the Opposite parties that the Complaint involves complicated and disputed questions of law as well as fact which cannot be satisfactorily determined by the Consumer Forum under the act and that for determination of the complicated issues of fact evidence is necessary which can only be examined by the Civil Court, is also too wide and sweeping in nature to deserve outright acceptance. Section 13(2) (b) of the Act which is made applicable to the State Commission by virtue of section 18 of the Act provides that the Commission shall proceed to settle the consumer dispute “on the basis of evidence brought to its notice by the complainant and its opposite parties.” Section 13(4) provides that for the purposes of section 13 of the Act, the State Commission shall have the same powers as are vested in a Civil Court under the code of Civil procedure, 1908 while trying a suit in respect of, inter alia, summoning and examining a witness on oath, discovery and production of any document or other material object producible as evidence and reception of evidence on affidavits.

 

7. It cannot therefore be said that evidence can only be examined by the Civil Court and not by the consumer Disputes Redressal Agencies. The Consumer Protection Act, 1986 is itself law and to argue that the State Commission which is constituted and empowered under its provisions cannot satisfactorily determine complicated and disputed questions of law would be unkind to the law makers. Moreover, the Opposite Parties have not shown what the purportedly ‘complicated’ questions of law are in the instant case.

 

8. The argument that complicated and disputed questions of fact are to be adjudicated upon only by Civil court applies only in exceptional cases where the Redressal Forums may decline to adjudicate upon disputes brought before them and to refer the Complainant to the remedy by way of suit. No such exceptional circumstances have been brought to our notice by the Opposite parties and we are satisfied that the State Commission would not be justified in declining to adjudicate upon the complaint petition on this ground by stating that the competent forum to adjudicate upon the matter is only the Civil Court. In this connection the judgment of the National commission reported in ІІ (1991) CPJ 202 ( S.K.Abdul Sukur –vs- State of Orissa & Others) may be referred to.

 

9. It is to be remembered that the very purpose for which the statute has been enacted is to provide a cheap and speedy remedy to aggrieved consumers by way of an alternative to the time consuming and expensive process of civil litigation. As mentioned earlier, Section 13(4) of the Act( the provisions of which are made applicable to the State Commission by section (18) specifically invests the Redressal Forums with the powers vested in a Civil Court under the Code of Civil Procedure in respect of the summoning and enforcing attendance of witnesses and examining them an oath, the discovery and production of documents and other materials producible as evidence, the reception of evidence on affidavits, the issuing of Commissions for the examination of any witness etc. The statute thus clearly contemplates that the Redressal Forums constituted under it are to decide cases filed before them after taking such oral and documentary evidence as the circumstances of any given case may require. Unless a Redressal Forum cons. Relied on by the parties that a satisfactory adjudication of the matter cannot be conducted by it in proceedings under the Act because of the exceptionally complicated nature of the factual issues involved, it will not be just or proper to decline to adjudicate upon a complaint filed by an aggrieved consumer. The question whether or not the goods bought by the complainant from the Opposite Parties suffer from one or more defects is not by itself too complicated to be determined by the Redressal forums constituted under the Act on a consideration of the relevant oral and documentary evidence. If jurisdiction is declined by the special Redressal Forums set up under the Act in all such cases on the mere statement that the case involves too complicated and disputed questions of fact, it would amount to unjust denial of the benefits of the Act to the aggrieved consumer by erroneous abdication of its jurisdiction by the Forums.

 

10. Now let us examine whether the Complainant is a consumer within the meaning of Section 2(1)(d)(i) of the Act. If he is, then the case shall be decided on merits. If not then the petition will sadly have to be held to be not maintainable. Sec. 2(1)(d) of the Consumer protection Act, 1986 which defines the expression ‘Consumer’ is reproduced below as it is essential for our purpose:

 

(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 differed payment and includes any user of such gods 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)                ……... (not relevant in this case)

 

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 purpose of earning his livelihood, by means of self-employment;

 

It may be noticed that the above –mentioned Explanation was added to the definition of the expression ‘consumer’ by the Act 50 of 1993 w.e.f. 18.06.1993 and its applicability to the instant case is not disputed by either side.

 

11. Thus from a bare reading of the Act it is evident that a person who buys any goods for any ‘commercial purpose, is not a consumer for the purposes of the Act. However, a person who buys and uses such goods exclusively for the purpose of earning his livelihood by means of self-employment is not held to be using the goods for any commercial purpose and thus remains within the definition of the expression ‘consumer’.

 

12. From the admitted facts of the case, a Tata Diesel vehicle (Model No. SE 1612/42 GBS40) was purchased by the Complainant. Such vehicles are goods used for commercial purposes and are not intended for personal use or conveyance. Thus the complainant cannot be considered to be a ‘consumer’. However the Complainant states that he has bought the vehicle for his livelihood and claims the benefit of the Explanation to section 2(1)(d) to say that he therefore falls within the purview of the definition of a ‘consumer’ and as such the petition is maintainable.

 

13. The question now arises whether or not the vehicle was purchased by the Complainant for earning his livelihood as claimed by him, thus enabling a finding whether the vehicle was bought for commercial purpose or not. Such questions are questions of facts which are to be decided on the facts and circumstances of the case. In the instant case, the decision does not pose much difficulty in view of the averments made by the Complainant in his complaint petition. At para 19 of the petition the complainant has stated as follows:

 

“The Petitioner has fleets of heavy goods vehicles and maintaining heavy goods trucks for over last 40 years. It needs to be mentioned that during the year 1995-96 and 1996-97 the Complainant/petitioner had purchased 6 nos. of vehicles from the respondent and the same are working without any complain except the aforesaid vehicle no.ML-05A-8814 which was supplied by the respondent no.1 fitted with a defective engine.”

 

Further in the legal notice dated 20.3.98 which was sent to the Opposite Parties by the learned Advocate on behalf of the Complainant, (Annexure IX to the Complaint Petition) it is stated that “my client aforesaid is a prominent businessman and having fleets of TELCO brand vehicles since last 40 years …” and that “my client had been engaged in the business of transportation for a long period of 40 years…”

 

14. In view of the admitted position of the Complainant that he is a prominent businessman having fleets of vehicles and is engaged in the business of transportation, it cannot be said that the vehicle under question purchased by the Complainant was for earning his ‘livelihood’. The meaning given to the term ‘livelihood’ in the Concise Oxford Dictionary is “a means of securing the necessities of life.” Running fleets of vehicles is an activity which goes beyond the means of securing the necessities of life. The term ‘earning ones livelihood’ cannot be understood to mean business activity on a large scale for the purpose of earning profit.

 

15. There is yet another aspect to the matter. The exclusion envisaged under the Explanation to section 2(1)(d) of the Act not only mandates that the goods bought and used by a person are to be used by him exclusively for the purpose of earning his livelihood but also that the livelihood is to be earned by “self-employment.” In the present case it is not conceivable that the Complainant with fleets of vehicles could used the vehicle himself and be self-employed, or in other words, ply the purchased vehicle himself.

 

The lucid illustrations given by the Honorable Supreme Court in Laxmi Engineering Works –Vs- P.S.G. Industrial Institute (AIR 1995 SC 1428 = II (1995) CPJ 1 (SC) bear mention here. The Honorable Supreme Court illustrated (at Para 12 of AIR) that a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer and if he takes the assistance of one or two persons to assist/help him in operating the vehicle he does not cease to be a consumer. As against this a person who purchases the vehicle to be plied or operated exclusively by another person would not be a consumer.

 

16. In the light of the above we are constrained to hold that the Complainant is not a consumer falling within the definition of the term under the Consumer protection Act, 1986 and is such is not entitled to seek Redressal of his grievances before the Redressal Agencies constituted under the Act.

 

In view of the above discussion the Complainant Petition is disposed off as being non-maintainable before this Commission with liberty t the Complainant to approach the competent civil court in the matter if he so desires. It is also made clear, that if the complainant chooses to file a suit for the relief claimed in this complaint petition, he can do so according to law and in such a case he can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the present proceeding under the Consumer protection Act, while computing the period of limitation prescribed for such suit.

 

No order as to cost.