DIST. CONSUMER DISPUTES REDRESSAL FORUM

NORTH 24 Pgs., BARASAT.

C. C.  CASE NO.  441/2017

  Date of Filing:                       Date of Admission                       Date of Disposal:

   17.08.2017                               31.08.2017                                    05.09.2017

 Complainant:-      Smt. Piali Bandyopadhyay, W/o Sri Kaushik Bandyopadhyay,

                                 Jadunathbati, P.O.-Malancha, P.S.- Bizpur,

                                 District-North 24 Parganas, Pin-743135.

                                                             Vs.

Opposite Party:-  The Manager, UCO Bank, Kalyani, Branch Office-2197,

                                 P.O.-Kalyani, P.S.-Kalyani, District-Nadia, Pin-743135.

P R E S E N T :- Sri  Siddharta Ganguli  ….………………………Member.

                        :- Smt  Silpi Majumder………………………………Member.

J U D G E M E N T

This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986, alleging deficiency in service as well as unfair trade practice against the OP as the OP is trying to repossess her vehicle through an illegal manner.

The brief fact of the case of the Complainant is that at the time of purchasing a lorry/truck she obtained financial assistance from the OP to the tune of Rs.15,12,000/-. It was scheduled that the entire loan amount along with interest should be paid within 60 months and monthly installment was fixed at Rs.34,791/-. But to some reason the Complainant could not make payment of due installments within due period and on 01.06 2017 the Complainant came to know from a letter issued by the OP that she had to pay a sum of Rs.13,99,655/- towards outstanding repayment within 15 days and her loan account has been declared as NPA. As the Complainant could not make repayment of such hefty amount within a very short period, the OP sent a letter dated 23.06.2017 under the caption of ‘Possession cum Sale Notice’ to her. After servicing the said letter all on a sudden on 15.07.2017 the OP sent their recovery agent as muscle men to take re-possession of the said truck from her custody without having any proper order from any Court of Law. As according to the Complainant such action of the OP suffers from deficiency in service as well as unfair trade practice, hence having no alternative she has approached before this Ld. Forum by filing this complaint praying for certain reliefs as mentioned above.

On 31.08.2017 the record was fixed for admission hearing. We took up the admission hearing when the Ld. Counsel for the Complainant had advanced his argument. At that point of time we have recollected that on 24.08.2017 another complaint being no-440/2017 was admitted involving similar fact and the Complainant is also the same. In the said complaint the Complainant namely Smt. Piali Bandyopadhyay having same residential address purchased one lorry/truck after taking financial loan from the same OP-UCO Bank. For this reason the ld. Counsel was asked as to whether the Complainant purchased two lorries/trucks or not. The Ld. Counsel for the Complainant has admitted that the Complainant purchased two lorries/trucks for earning her livelihood by means of self employment. We have raised objection against such contention of the Complainant stating that if two lorries/trucks is purchased by a single person he/she cannot be termed as consumer within the purview of the definition of consumer whether he/she purchased the same for earning his/her livelihood by means of self employment or not or whatever it may be.  The Ld. Counsel for the Complainant has placed reliance on the judgment passed by the Hon’ble Supreme Court, reported in 2016 (3) CPR 323, in the case of Bunga Daniel Babu vs. M/s. Sri Vasudeva Constructions, dated 22.07.2016. We have carefully perused the said judgment. In our opinion the fact of the relied case and the fact of the instant complaint are not at all same and identical. The relied case is related as to whether the Land owner can be a consumer of the Developer and the Developer can be termed as service provider to the Land Owner. But admittedly the ratio of the said judgment is applicable in the case in hand because it is the settled legal position as observed by Their Lordships that commercial purpose is required to be interpreted considering the facts and circumstances of each case has been reiterared. But in the instant complaint it is proved that the Complainant purchased two lorries/trucks taking financial assistance from the OP. Hence the question is as to whether the Complainant be termed as consumer as per the definition of ‘Consumer’ as enumerated in the Consumer Protection Act, 1986 or not. In the Section 2 (1) (d) “consumer means any person who-(i) xxxxxxxxxxxxxxxxxx . (ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of dererred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promise, 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;

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 this respect we may mention to the judgment passed by the Hon’ble Supreme Court in the case of Laxmi Engineering Works vs. P.S.G. Industrial Institute (1995) 3 SCC 583, wherein in the paragraph no-12 Their Lordships have held as under-

“12. Now coming back to the definition of the expression ‘consumer’ in Section 2 (d), a consumer means insofar 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 or 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 peron 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 Dictionary); 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 taking 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 (d) (i) 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 ‘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 emphasis what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood 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 a 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 the 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 other two sets of words.”

Having regard to the abovementioned observation of the Hon’ble Supreme Court and being the Law of this Land we are of the view that the said observation can be implemented in the case in hand and applying the said view we are of the view that the Complainant does not come within the definition of ‘Consumer’ as enumerated in the Consumer Protection Act, 1986 as the Complainant purchased two lorries/truck, which cannot be termed for earning her livelihood. In the abovementioned judgment no where Their Lordships have held that inspite of purchasing two cars, two lathe machines or other machines, two auto-rickshaws or two typewriters the purchaser can be termed as consumer. From the documents as filed by the Complainant it is revealed that the lorries/trucks are commercial vehicle and for purchasing the said trucks the Complainant obtained two loans from the OP-Bank. Therefore service is availed of by the Complainant for commercial purpose. It is stated by the Complainant that the said trucks was purchased for earning her livelihood by means of self employment. But in view of the aforementioned landmark judgment it cannot be said that purchase of two trucks or availing of service from the service provider for two trucks does not help the Complainant to be a consumer in the eye of Consumer Protection Act, 1986.

Going by the foregoing discussion hence it is ordered that the complaint is dismissed being not maintainable and without being admitted. Considering the facts and circumstances of the complaint there is no order as to cost. However the Complainant is at liberty to approach before the appropriate Court/Forum/Commission, if not barred otherwise. The complaint is thus disposed of accordingly.  

Let plain copy of this judgment be issued to the parties free of cost.

Member                                              Member                                         President

Dictated and corrected by me: