Chhattisgarh State Consumer Disputes Redressal Commission, Raipur

Chhattisgarh State Consumer Disputes Redressal Commission, Raipur

S C Vyas, President; Smt Veena Misra and V K Patil, Members

M/s Cholamandalam DBS Finance Ltd through its Attorney and Manager & Anr. – Appellants

Versus

Jogender Singh – Respondent

Appeal No. 344 of 2008

Decided on 5.5.2010

Consumer Protection Act, 1986 - Sections 2(1)(d), 14(1)(d), 15 and 17 - Financial Services - Hire-purchase agreement - Repossession of vehicle (truck) - OPs direoted by District Forum to return vehicle of Complainant or, in alternative, to pay a sum of Rs. 8,50,000 together with interest @ 9% - Challenge to locus stand! of Complainant - Unless goods were purchased or services were availed by a person exclusively for purpose of earning his livelihood by means of self-employment, such purchase or availment of service will be for commercial purpose - Pursuant to amendment in CPAct by Act 62 of 2002 w.e.f. 15.03.2003, services availed for commercial purpose are excluded form jurisdiction of Consumer Fora - No material to suggest that trucks were purchased by Complainant for earning his livelihood by self-employment - Impugned order set aside - Complaint dismissed.

Important Point

Services availed for commercial purpose are excluded from jurisdiction of Consumer Fora.

Order

Smt Veena Misra, Member - This appeal is directed against order dated 3.5.2008 of District Consumer Disputes Redressal Forum, Rajnandgaon (hereinafter called as 'District Forum' for short), in complaint case No. 126/07, whereby the complaint was allowed and the OPs were directed to return the vehicle of the Complainant or, in alternative, to pay a sum of Rs. 8,50,000 together with interest @ 9% p.a. from the date of complaint, within a period of one month and to pay additional interest in case of default together with cost of litigation Rs. 1,000. OPs have preferred the appeal under consideration.

Brief facts necessary for disposal of this appeal are that the Complainant had obtained finance from the OPs/Finance company and had purchased truck Bearing No. CG08 B 0927. As per averments of the complaint, the truck was purchased for earning livelihood by the Complainant. The Complainant was making regular repayment, yet the truck was repossessed without any prior intimation on 22.10.2007. Hence, the Complainant suffered great mental harassment and financial problem and unnecessarily had to pay salary to the driver and conductor. It was averred that the Complainant is entitled to get the truck back or to receive an amount equivalent to cost of the truck, together with Rs. 1,68,000 towards damages. As the OPs failed to give the truck back, despite service of notice by the Complainant, hence the complaint was filed.

Resisting the complaint, the OPs averred that the Complainant had purchased two trucks after obtaining finance from the OPs. Repayment of loan amount together with interest was to be made in installments. From the very beginning the Complainant was negligent towards repayment of installments. The OPs had served notice dated 24.7.2007 for making payment, but as the amount was not paid, the vehicle was repossessed. Even after repossession on 24.10.2007, a notice was given for making payment, but the Complainant refused to accept the registered notice sent by the Complainant. Seven of the cheques given by the Complainant were dishonoured. Hence, the vehicle was repossessed and, thus, there was no deficiency in service committed by the OPs. It was averred that the Complainant is not a consumer, as provided under Section (2)(1)(d) of Consumer Protection Act, 1986.

Considering the material placed before it, District Forum had allowed the complaint.

Learned counsel for the Appellant submitted before us that the District Forum had wrongly held the Complainant to be a 'consumer', though the truck was purchased for commercial purpose. He reiterated that two trucks were purchased by obtaining finance from the Appellant. The Complainant had failed to show that the said trucks were purchased for earning his livelihood by means of self-employment, but still the District Forum had allowed the complaint. On this score alone, the impugned order is liable to be set aside.

Learned counsel for the Respondent submitted that the Complainant had clearly mentioned in the complaint that the truck in question, was purchased by the Complainant for earning his livelihood and, hence, the District Forum has not committed any mistake in holding the Complainant to be a consumer.

The preliminary question to be considered by Consumer Fora is whether the person, who filed the complaint, comes in the category of 'consumer' as defined under Section 2(1)(d) of the Consumer Protection Act, 1986?

The definition of 'consumer' under Section 2(1 )(d) of Consumer Protection Act (CPA), 1986, is reproduced herein below:

"(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; or

(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 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."

Thus, the definition of consumer includes a person, who buys any goods or hires or avails of any services for a consideration, but does not include a person, who buys any goods or hires or avails of any services for commercial purpose. But, as per the aforesaid explanation, unless the goods were purchased or services were availed by a person exclusively for the purpose of earning his livelihood by means of self-employment, such purchase or availment of service will be for commercial purpose; In the light of the aforesaid definition including the explanation, objection taken by learned counsel for the Appellant is justified.

Learned counsel for Appellant has relied on Laxmi Engineering Works v. PSG Industrial Institute; Eicher Motors Ltd v. Dilip Chandra Kant Vaid and Ors and several other decisions of State Commissions in support of his aforesaid arguments, whereas, learned counsel for the Respondent relied on Karnataka Power Transmission Corp. &Anr. v. Ashoklron Works Pvt Ltd.

10.

Learned counsel for the Respondent submitted that in latest decision in the case of Karnataka Power Transmission Corp. (supra), Hon'ble Apex Court has held that since supply of electricity was not sale of electricity but was availment of service and deficiency in providing such service was trialable by Consumer Forum and 'person' availing such service was a 'consumer'. On perusal of aforesaid judgment, it clearly appears that it related to the dispute prior to 2002, i.e.; prior to amendment in the Consumer Protection Act, 1986, which was introduced by Act 62 of 2002 and the said amendment came into force w.e.f. 15.3.2003. Prior to the aforesaid amendment, services availed for commercial purpose were also under jurisdiction of Consumer Forum, but after the amendment, the position has changed and services availed for commercial purpose are excluded from jurisdiction of Consumer Fora. Hence, the case relied by learned counsel for Respondent will have no application in the facts of present case. In the case of Laxmi Engineering Works (supra), the "commercial purpose" was described and it has been referred in the case of Eicher Motors Ltd (supra). In that case, the Complainant had purchased buses and it was held that the same were purchased for commercial purpose as he had purchased a number of buses. In the appeal under consideration also, the Complainant had purchased two trucks by obtaining finance from the OPs.

11.

Complainant's counsel had also taken the plea that the Complainant had obtained finance from OPs for purchasing the truck and not for financing the money to someone else; hence service of finance cannot be said to have been availed for commercial purpose.

12.

Aforesaid arguments of learned counsel for Complainant/Respondent does not appear to be justified because the service of finance was obtained for the purpose of purchasing the truck and there is no material to suggest that trucks were purchased by the Complainant for earning his livelihood by self-employment. So, even if the trucks were purchased for earning livelihood, the Complainant would not be a 'consumer' unless it was purchased for earning livelihood by 'self-employment'. In the circumstances, we are of the considered opinion that the District Forum has erred in considering the Complainant to be a 'consumer'. Hence, the aforesaid finding is set aside.

13.

As the basic requirement for filing a complaint before District Forum is not completed and the Complainant is held not to be a 'consumer', the jurisdiction of the Consumer Fora is ousted and there is no point in considering the question whether any deficiency was committed by the OPs? Hence, this appeal is allowed and the order of the District Forum is set aside. The complaint is dismissed on the ground that the Complainant is not a 'consumer'. However, the Complainant shall be free to avail of any other remedy that may be available to him under any other law.

Appeal dismissed.