KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.629/11
JUDGMENT DATED 9.11.2012
PRESENT
JUSTICE SHRI.P.Q.BARKATH ALI -- PRESIDENT
SHRI.M.K.ABDULLA SONA -- MEMBER
1. Tata Motors Ltd,
3rd Floor, Tutus Tower,
N.H. Bypass Road, Padivattom,
Kochi-24.
2. Focuz Motors, -- APPELLANTS
Focuz Towers,
Edappally, Kochi-24.
(By M/s.Menon & Menon)
Vs.
V.K.Eapen
Vedikkattil House,
Thalliyoor P.O, Vennikulam, -- RESPONDENT
Mallappally,
Pathanamthitta.
(By Adv.Tom Joseph)
JUDGMENT
JUSTICE SHRI.P.Q.BARKATH ALI,PRESIDENT
This is an appeal filed by the opposite parties 1 & 2 in CC.No.498/08 on the file of Dist Consumer Forum, Ernakulam under Section 15 of the Consumer Protection Act, 1986, challenging the order of the Forum dated 22.2.11 directing the appellants to pay to the respondent/complainant Rs.2,11,383/- jointly and severally with interest at the rate of 12% per annum, if not paid within one month for having supplied a School bus which did not conform to the ARAI specifications.
2. First appellant/first opposite party is M/s. Tata Motors Ltd; Kochi and second appellant/second opposite party is M/s. Focus Motors Kochi. The case of the complainant as testified by him as PW1 before the Forum and as detailed in the complaint in brief is this: PW1 and his wife are teachers by profession. After returning from abroad they took over an unaided School by name Gulf India School, Pathanamthitta to earn their livelihood by self employment. They purchased a Tata LP 407 School bus from first appellant through its agent second appellant for Rs.7,40,951/-. On December 22,2006, complainant availed a loan of Rs.5 lakhs from ICICI Bank, Kottayam and paid Rs.2,40,951/- direct to second opposite party. On obtaining delivery of the vehicle, PW1 applied for registration and a registration No.KL-28-1198 was allotted in February 2007. Subsequently, registration was cancelled by the registering authority on the ground that overall length and height of the bus was not in accordance with ARAI specifications. PW1 remitted Rs.1,15,841/- towards monthly instalments of the loan amount. On default of the loan instalments the financier repossessed the vehicle. Along with future interest towards loan arrears PW1 had to pay Rs.2,32,000/-. Selling a defective vehicle by false representation amounts to unfair trade practice and deficiency in service on the part of the appellants. PW1 claimed Rs.3,81,792/- which he had paid for purchasing the vehicle, Rs.2,32,000/- paid by him to the financier and Rs.1 lakh as compensation with interest.
3. The appellants/opposite parties filed separate versions before the Forum and as PW1 and PW2 they contended thus:- It is true that the complainant purchased Tata LT 407 model bus of the first appellant/first opposite party, through its agent second appellant for operating as school bus of the school conducted by the complainant. PW1 was operating the bus engaging drivers. That part he is collecting fees from its students. That being so, complainant is using the bus for commercial purpose. Therefore he cannot be treated as a consumer as provided under Section 2 (1) (d) of the Consumer Protection Act of 1986. Appellants are not aware of the cancellation of the registration of the vehicle. Therefore, the complainant is not entitled to any of the reliefs prayed for.
4. Complainant was examined as PW1. He produced Exts.A1 to A4 before the forum. On the side of the appellants/opposite parties, PW1 & PW2 were examined and Ext.B1 was marked. On an appreciation of the evidence, Dist. Forum found that complainant is a consumer as defined under Section 2 (1) (d) of the Act that there was deficiency in service on the part of the appellants in supplying a vehicle not conforming to the specifications prescribed by the ARAI and ordered to pay a compensation of Rs.2,11,383/- with interest and costs. Opposite parties have come up in appeal challenging the said order of the forum.
5. Sri.V.Krishna Menon counsel for the appellants mainly argued that the complainant cannot be treated as a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act as he has purchased the bus in question for conducting a school and that therefore the District Forum should have dismissed the complaint. Sri. Tom Joseph, the counsel for the complainant/respondent on the other hand supported the impugned order of the District Forum.
6. The following points arise for consideration:-
1. Whether PW1, the complainant can be treated as a
Consumer as defined under Section 2 (1) (d) of the Consumer Protection Act?
2. Whether there was any deficiency in service on the part of the appellants?
3. Whether the impugned order of Dist. Forum can be sustained?
7. POINT NO.1:-
The main question for consideration is whether PW1, the complainant who purchased the School bus from appellants can be termed as a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act. In other words the question would be whether the complainant can be said to have purchased the vehicle for commercial purpose as prescribed under Section 2 (1) (d) of the Consumer Protection Act.
Section 2 (1) (d) of the Act reads thus:-
(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 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.
(ii) [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 service for consideration paid or promised, or partly paid and partly promised, or uder any system of deferred payment, when such services are availed of with the approval of the first mentioned person”
8. The Apex court has held in Laxmi Engineering works vs. P.S.G. Industrial Institute (II (1995) CPJ I SC) and in Madan Kumar Singh (D) Vs. District Magistrate, Sultanpur IV (2009) CPJ 3 (SC) that a person who buys goods and use them himself exclusively for the purpose of earning his livelihood, by means of self-employment is within the definition of the expression “consumer”. The principles laid down in the above decisions squarely apply to the facts of the present case.
9. A plain reading of the section and the principles laid down in the above decisions make it abundantly clear that claimant would fall within the category of a ‘consumer’. PW1 has bought the School bus for a consideration which was paid by him. It was bought to be used exclusively for the purpose of his livelihood by self employment, that is, by conducting a School. There is nothing on record to show that
he wanted to use the bus for any commercial purpose. Purchasing a school bus for running a school, by any stretch of imagination cannot be treated as using the vehicle for any commercial purpose. Therefore, we are in complete agreement with the finding of the Dist. Forum that complainant has to be treated as a ‘consumer’ as defined under Section 2 (1) (d) of the Act.
10. POINT NO.2:-
The next question for consideration is whether there has been any deficiency in service committed by the appellants as provided under Section 2 (1) (g) and (o) of the act or not. Deficiency has been defined under Section 2 (1) (g) of the Act as under:
2 (1) (g) :- deficiency means any fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
11. In the present case the registration of the bus was cancelled by the Additional Registering Authority, Mallappally as evidence by Ext.A3 order dated January 23,2007 on the ground that the vehicle in question was manufactured not in accordance with the approved specifications of ARAI as per CMVR 126 and also as per the direction of Transport Commissioner vide Circular No.7/2006. The specific contention of the appellants is that the vehicle in question was manufactured in accordance with the specifications of ARAI. But they have failed to prove the same. Supplying a school bus not in accordance with the specifications of ARAI and CMVR is definitely deficiency in service on the part of the appellants. It is clearly made out that appellants were at fault in performance of services which was otherwise required to be performed by them. Thus in our considered opinion, all the ingredients to enable the complainant to be claim damages under the act were made out.
12. POINT NO 3:-
Now what remains to be considered is whether the amount of compensation awarded to the complainant is just and proper. The complainant claimed Rs.3,81,792/- which he had paid for purchasing the vehicle. Rs.2,32,000/- paid by him to the financier and Rs.1 lakh as compensation. Dist. Forum awarded a compensation of Rs.2,11,383/- being the amount the complainant was compelled to pay to the financier to close the loan amount which is evidence Ext.A4 notice. The complainant has not filed any appeal seeking enhancement of the compensation. Therefore, we find the compensation awarded by the Dist. Forum is just and proper.
In the result, we find that no merit in this appeal and the same is hereby dismissed. The respondent/complainant is entitled to a cost of Rs.3000/-.
JUSTICE P.Q.BARKATH ALI -- PRESIDENT
M.K.ABDULLA SONA -- MEMBER
