BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 155 OF 2014 AGAINST C.C.NO.581 OF 2011 DISTRICT CONSUMER FORUM-II HYDERABAD
Between
Tata Motors Finance Ltd.,
1-7-385/108, Opp. Nanking Restaurant
Parklane, Secunderabad
Rep. by Mr.N.Pratap, Manager-Legal
Appellant/opposite party no.1
AND
- Somisetty Chandra Sekhar S/o S.Raja Manikyam
Occ: Agriculturst, R/o H.No.4-109, Yellur Vilalge
Kollapur Mandal, Mahaboobnagar Dist.
Respondent/complainant
- The Yard Manager
Ravi’s Stock Yard (Hyderabad)
No.12-4-115, Sri Hari Nagar Colony
Moosapet, Opp. Kukatpally Depot
Hyderabad-500004
(Respondent no.2 is a proforma party)
Respondent/opposite party no.2
Counsel for the Appellant M/s Lotus Law Associates
Counsel for the Respondent No.1 Served
Counsel for the Respondent No.2 Proforma Party
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
THURSDAY THE TWENTY SECOND DAY OF FEBRUARY
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the opposite party no.1 aggrieved by the orders of District Consumer Forum-II, Hyderabad, dated 31.01.2014 made in CC No.581 of 2011 wherein it allowed the complaint directing the opposite party no.1 to pay interest for an amount of Rs.3,00,000/- @ 9% per annum from the date of payment 29.10.2010 till the date of delivery 02.11.2011; to pay compensation for a sum of Rs.10,000/- towards mental agony; to pay Rs.2,000/- towards punitive damages and costs of Rs.1000/-. Time for compliance four weeks in default the amount of Rs.3 lakhs shall carry interest.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainants, in brief, is that the complainant purchased JCB Machine in an auction conducted by the opposite party no.1 for an amount of Rs.2,90,000/- in two installments. The complainant paid the said two instalments by 29.10.2010. Thus the opposite party no.1 received the entire sale consideration of Rs.2,90,000/- plus Rs.10,000/- paid initially before conducting of auction. Thereafter the complainant after collecting release order approached the opposite partyno.2 for seeking release of JCB Machine but he refused to release the Machine on the ground that opposite party no.1 is due to them and the same was informed to the opposite partyno.1. As the complainant had purchased said Machine in an auction by availing loan from Sri Ram Finance. Inspite of several reminder the opposite parties not released the Machine. Hence, the complaint praying to direct the opposite parties to release the Machine; to pay compensation of Rs.2,00,000/- towards mental agony; to pay Rs.2,00,000/- towards compensation for deficiency of service; to pay interest @ 24% on loan raised from Sriram Transport Finance Co., Ltd.,; to pay Rs.1,05,000/- @ Rs.15,000/- per month towards sale for the driver of JCB Machine and costs of Rs.20,000/-.
4. The opposite party no.1 resisted the case contending that the complaint is not maintainable either in law as well as on facts. There are no material allegations supported by facts and evidence to the effect that the opposite party no.1 has adopted any unfair trade practice or there is any deficiency in service. The opposite party no.1 denied that the complainant approached the opposite partyno.3 and informed by the yard that there is no such Machine stored in their yard and the opposite party no.1 till date has not taken any steps for release of the Machine nor has delivered the Machine to the complainant. The opposite party no.1 delivered the Machine to the complainant on 02.11.2011 and received the acknowledgement as the complainant taken the custody of the asset in as is where is condition. The opposite party no.1 has no knowledge about the availment of finance from Sriram Transport Finance Company. Hence, the opposite party no.1 prayed for dismissal of the complaint.
5. Despite service of notice on the opposite partyno.2 failed appear before the District forum.
6. In proof of his case, the complainant filed his evidence affidavit and got Exs.A1 to A12 marked while on behalf of the opposite party no.1, the Manager(Legal) filed his evidence affidavit and got Ex.B1 marked.
7. The District Forum after considering the material available on record, allowed the complaint bearing CC No.581 of 2011 by orders dated 31.01.2014 granting the reliefs, as stated in paragraph No.1, supra.
8. Aggrieved by the said decision, the opposite party no.1 preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District Forum failed to consider that the complainant purchased the asset for commercial purpose and as such he is not a consumer. The District Forum failed to consider that opposite party no.1 has issued Machine release order on 11.11.2010 immediately after the sale and instructed the complainant to approach the opposite party no.2 to take delivery of the same but the complainant himself has not approached them. As per the judgment of Hon’ble Supreme Court in Laxmi Engineering Works Vs PSG Industrial Institute (1995) 3 SCC 583 the complainant is not a consumer as the Machine purchased by the complainant is for commercial purpose. Hence, the appellant prayed to allow the appeal by setting aside the order of the District Forum.
9. Smt Usha, Advocate representing the counsel on record for appellant present and was heard. No representation for the respondent no.1. The appellant filed written arguments along with citations.
10. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief?
11. It is not in dispute that the complainant purchased JCB Machine from the opposite partyno.1 in an auction conducted by the opposite party no.1 for an amount of Rs.3,00,000/-. It is also not in dispute that the complainant has paid the said amount in two installments by 29.10.2010. The main allegation of the complainant is that the opposite parties have not delivered JCB Machine to the complainant immediately after issuance of release order by the opposite party no.1 and in view of the non-release of the Machine he had suffered loss as he had taken loan from Sriram Finance.
12. On the other hand the opposite partyno.1 contended that the complainant is not a consumer as he purchased the same for commercial purpose. It is also contended that the complainant has admitted he has engaged a driver by paying an amount of Rs.15,000/- per month and due to non-release of the Machine he had to pay the salary to the driver without availing his services. The complainant has pleaded this fact in the complaint that he purchased second hand JCB machine in auction for earning his livelihood. The affidavit of complainant is on the record wherein he stated this fact on oath that he is an agriculturist and due to various reasons he suffered loss in cultivation and subsequently to eke out his livelihood he purchased the machine in the auction. The initial onus stands discharged by complainant, now it is for the opposite party no.1 to disprove this fact. Affidavit of Manager (Legal) of opposite party no.1 on the record. In the absence of any such rebuttal evidence by opposite party no.1, we agree with the finding of the District Forum on this point holding the complainant to be consumer, because he pleaded and testified this fact on oath that he purchased the second hand JCB machine to earn his livelihood. The opposite party no.1 has not examined any witness or any other documentary evidence on the file to rebut the above evidence of complainant.
13. In Laxmi Engineering Works v. P.S.G. Industrial Institute, AIR 1995 SC 1428, it was held :-
"12. Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means in so far 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 of 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 person 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); 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 taken 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 // 18 // to Section 2(1)(d) 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 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 emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who // 19 // 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 Machine or machinery, he does not cease to be 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 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 the other two sets of words".
14. Except the contention that the complainant is not a consumer as he purchased the JCB Machine for the purpose of business, the opposite party no.1 did not adduce any evidence to rebut the contention of the complainant that he is running the JCB Machine and he is depending on it for his livelihood. It is brought to our notice through record that the complainant engaged a driver to run the JCB Machine, but it is not the case of the opposite party no.1 that the complainant has many more JCB Machines. The opposite party no.1 did not file any documents to show that the complainant is not entirely depending on the JCB Machine for his livelihood. Under these circumstances, we are of the view that the complainant is a consumer within the meaning of Consumer Protection Act. The complaint is therefore maintainable under law.
15. Now coming to the merits, the opposite party no.1 merely contended that they have issued release order on 11.11.2010 immediately after the sale and was asked to approach their yard but the complainant has not approached them and as such there is no deficiency of service on its part. We do not agree with the contention of the opposite party no.1 that the complainant did not approach their yard, in fact the complainant approached the yard but for the reasons best known to them they did not release the Machine on the approach of the complainant. The complainant has stated in his affidavit that he approached the Yard several times but it had not released the Machine and the same fact informed the opposite party no.1 and the opposite party no.1 did not take any steps for release of the Machine. When the Machine was not released the complainant addressed letter dated 12.01.2011 to the opposite party no.1 stating that despite release order dated 11.11.2010, M/s CLEE (India) Pvt Ltd., did not release the Machine. It is the bounden duty of the opposite party no.1 when the complainant purchased the Machine in an auction, it had to take responsibility of release the immediately after receiving full sale consideration as per the terms and conditions of the auction. It is also pertinent to see that the opposite partyno.1 nowhere mentioned the reasons for delay in release of the Machine in time. It had only stated that the complainant has taken the Machine on 02.11.2011 and to that effect gave acknowledgement and hence there is no deficiency in service on its part. When there is no response from the opposite party no.1 even after several visits and also to the letter addressed to the complainant dated 13.01.2011 the complainant having no other alternative got issued legal notice dated 31.01.2011 to the opposite partyno.1 calling upon the opposite partyno.1 to release the Machine immediately but the opposite party no.1 did not give any reply to the said legal notice. It is also pertinent to note here that the opposite party no.1 released the Machine when the complainant filed the complaint before the District Forum for releasing of the Machine . Therefore, we are of the considered opinion that the opposite party no.1 acted negligently and carelessly in not releasing the Machine immediately after receipt of sale consideration.
16. We have given careful consideration to the impugned order. The District Forum has meticulously considered all the relevant aspects of the matter and appreciated them in a right perspective. In our considered opinion, the conclusion arrived at by the District Forum does not suffer from any infirmity or illegality. Therefore, we hold that the impugned order needs no interference and as such the appeal liable to be dismissed. The point no.10 is answered accordingly against the opposite party no.1.
In the result, the appeal is dismissed confirming the order of the District Forum-II, Hyderabad dated 31.01.2014 in C.C.No.581 of 2011. There is no order as to costs. Time for compliance four weeks.
PRESIDENT MEMBER
22.02.2018
