State Consumer Disputes Redressal Commission
Smt. Gita Patel vs M/S A.M.Services & Ors. on 3 November, 2023
Complaint Nos.: Smt. Gita Patel Date of
CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023
AFR / NAFR
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Date of Institution: 08/03/2022
Date of Final Hearing: 10/10/2023
Date of Pronouncement: 03/11/2023
Complaint Case No.- CC/22/02
IN THE MATTER OF :
Smt. Gita Patel,
W/o. Shri Hitesh Bhai Patel,
R/o. E-9, Malviya Nagar, G.E. Road,
DURG (C.G.) - 491 001
... Complainant.
Through: Shri R. K. Bhawnani, Advocate
Vs.
1. M/s. A.M. Services,
Through: Arjun Kumar Gupta, Proprietor,
S/o. Shri Ramphal Gupta,
R/o. House No.301, Sai Simran, Bhawna Nagar, Sales Tax Basti,
RAIPUR (C.G.)
... Opposite Party No.1
Through: Ex-parte
2. Shri Amarjeet Rekhi,
S/o. Late Shri Devendra Singh,
R/o. 15/A, D-Pocket, Maroda Sector, Bhilai, Civic Center Bhilai,
Tah. & Dist. DURG (C.G.)
... Opposite Party No.2
Through: Shri Gaurav Somani, Advocate
3. ICICI Bank Private Limited,
Office - 215, Free Press House, Free Press Marg, Nariman Point,
MUMBAI (MAHARASHTRA)
... Opposite Party No.3
Through: Ex-parte
CORAM: -
HON'BLE SHRI JUSTICE GAUTAM CHOURDIYA, PRESIDENT
HON'BLE SHRI PRAMOD KUMAR VARMA, MEMBER
PRESENT IN BOTH CASES: -
Shri R.K. Bhawnani, Advocate for the complainant. Shri Gaurav Somani, Advocate for opposite party No.2. None appeared for opposite party Nos.1 & 3 (matter was proceeded ex-parte).
J U DGE M E NT PER: - JUSTICE GAUTAM CHOURDIYA, PRESIDENT This complaint, under Section 47 & 49 of the Consumer Protection Act, 2019 (hereinafter referred to as "the Act" for short), has been filed by the complainant alleging deficiency in service and unfair trade practice on the part of the opposite parties and seeking directions as under to : -
i. The opposite party No.1 to refund Rs.20,00,000/- (Twenty Lacs). ii. The opposite party No.2 to refund Rs.3,00,000/- (Three Lacs). Partly Allowed. Page 1 of 17
Complaint Nos.: Smt. Gita Patel Date of
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M/s. A.M. Services & Ors. 03/11/2023
iii. The opposite party No.3 to refund Rs.45,50,000/- (Forty Lacs Fifty Thousand).
iv. All the opposite parties to jointly and/ or severally pay Rs.7,79,020/- (Seven Lacs Seventy Nine Thousand Twenty) towards the amount of insurance premium.
v. The opposite party Nos.1 & 2 to jointly and/or severally pay Rs.5,62,012/- (Five Lacs Sixty Two Thousand Twelve) towards repairing cost.
vi. The opposite parties to jointly and /or severally pay interest @ 18% p.a. on all the above amounts from 07.12.2018.
vii. The opposite parties to jointly and/ or severally pay Rs.40,00,000/-
(Forty Lacs) as compensation to the complainant for deficiency in service and unfair trade practices committed by them. viii. The opposite parties to pay an amount of Rs.1,00,000/- (One Lac) towards the cost of the complaint.
ix. Any other relief which this Commission deems fit to award.
2. Briefly stated the facts of the case necessary for its disposal, are that the complainant is one of the partner duo of a registered partnership firm M/s. C.B. Patel, which is involved in the business of civil contractor work including transportation or maintenance work and both the partners operate and manage the firm for self-employment and for earning their livelihood for themselves and their family. The opposite party No.1 is a proprietorship firm which provides services of transport like buying, selling, registration, transfer, fitness, permit and associated work of vehicles at the Transport Office on commission basis. The opposite party No.2 is an individual who was personally known to the complainant‟s husband and opposite party No.1, who introduced the complainant to the opposite party No.1. The opposite party No.3 is a Bank who sold the vehicles in question to the complainant.
3. As per case of the complainant, the complainant‟s partnership firm was in need of some trucks for which the complainant‟s husband approached the opposite party No.2, who introduced him to the opposite party No.1. The opposite party No.1 informed the complainant that the opposite party No.3 Bank is selling five trucks at District Nanded, Maharashtra and suggested Partly Allowed. Page 2 of 17 Complaint Nos.: Smt. Gita Patel Date of CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023 that in case the complainant would choose to purchase the said truck, the opposite party No.1 will help her in such purchase and will provide all necessary and associated services for transfer, registration, permit, fitness, NoC, insurance and tax related works with the concerned RTOs in Maharashtra and Chhattisgarh. The complainant being impressed with the offer and promises by the opposite party Nos.1 & 2 agreed to purchase the said five trucks from the opposite party No.3 and paid in all paid Rs.45,50,000/- (Forty Five Lacs Fifty Thousand), @ Rs.9,10,000/- (Nine Lacs Ten Thousand) per truck, to the opposite party No.3 vide Annexure C-1 (Colly.). Thereafter, as asked the opposite party No.1 was paid Rs.20,00,000/- (Twenty Lacs) on 05.12.2018 vide Annexure C-2 and subsequently believing the representation and promises of the opposite party No.2 the complainant paid Rs.3,00,000/- (Three Lacs) to him on 07.12.2018 vide Annexure C-3. But even after receipt of all the above amount, the opposite parties failed to discharge their duties i.e. opposite party No.3 was required to give possession and original documents of all the five trucks, the opposite party No.1 was required to complete all formalities with the concerned RTOs and other Govt. Departments, if required, with regard to transfer of registration, permit, fitness insurance and for payment of tax amount etc. and the opposite party No.2 was required to physically transport the said five trucks from Nanded, Maharashtra to Durg Chhattisgarh.
4. As per the allegations leveled in the complaint the opposite party No.2 brought all the trucks from Nanded, Maharashtra to Durg, Chhattisgarh and gave them to Jaika Automobiles & Finance Pvt. Ltd. at Durg for necessary repairing and servicing. While servicing and repairing the said service center informed the complainant that the original engines and many original parts were replaced with old ones. It was the responsibility of the opposite party No.2 to safely transport the trucks in question from Nanded, Maharashtra to Partly Allowed. Page 3 of 17 Complaint Nos.: Smt. Gita Patel Date of CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023 Durg Chhattisgarh but the original engines and main parts of the said vehicles were replaced with old and damaged ones and because of which the complainant had to incur expenses of Rs.5,62,012/- (Five Lacs Sixty Two Thousand & Twelve) in repairing and maintenance of all the trucks, Annexure C-4 (Colly.). Apart from that the complainant had to pay insurance premium for all the five trucks in all Rs.7,79,020/- (Seven Lacs Seventy Nine Thousand Twenty) with regard to years 2019-20, 2020-21 & 2021-22. It is alleged in the complaint that due to such inaction of the opposite parties, the complainant was deprived of using said truck even after payment of full consideration and incurring further expenses in repairing and insurance as detailed above and such failure of undertaking obligations promised by the opposite parties amounts to deficiency in service and unfair trade practice on their part. Therefore, with the prayer of refund of entire amounts paid in different heads along with interest and compensation for mental agony with cost of litigation as aforesaid in paragraph No.1, this complaint is filed. It is further averred in the complaint that the said trucks could not be used since 2019 for want of completion of mandatory formalities with RTOs and concerned Govt. Departments and because of keeping them in idle condition currently they are not even in running condition and their values have been depreciated considerably. The complaint is supported by affidavit dated 03.03.2022 of the complainant Smt. Gita Patel herself.
5. The opposite party No.2 in his written version except the admitted facts has denied all the adverse allegations leveled against him in the complaint and averred that this opposite party is an independent businessman engaged in transportation of second-hand trucks purchased by his clients. He is also a commission agent and takes commission for the transactions. It is further averred that the as per averments in paragraph No.2 of the complaint itself the complainant is one of the partner duo of a Partly Allowed. Page 4 of 17 Complaint Nos.: Smt. Gita Patel Date of CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023 partnership firm which is engaged in business of civil contract work, including and not limited to transportation, maintenance work etc. The complainant approached the opposite party No.2 for transportation of five trucks in question, purchased from opposite party No.3 in online bidding in auction, for the said partnership firm. Purchase of goods or hiring of services in the course of normal business activity would certainly entail a profit motive at its core and thus would generally be covered by the exception disqualifying one from taking benefit of this Act. However, in spite of purchasing goods or availing services for a profit motive, if the person is able to satisfy 3 criteria laid down in the exclusion to the exception one will still be entitled to take the benefit of the Act i.e. goods or services are to be used by the person; exclusively for the purpose of earning livelihood and by way of self-employment. In the instant case the complainant purchased five trucks for the purpose of expanding their business of transportation and construction, with the motive of maximizing their profit. He has relied upon judgement of Hon‟ble Apex Court in Cheema Engineering Services Vs. Rajan Singh, (1997) 1 SCC 131 and averred that the purpose of purchase of trucks in the instant case was not self-employment as defined in the Act as well as in the above landmark judgement. Hence, the complainant does not come under the purview of definition of „consumer‟ as defined under the Act therefore this complaint is not maintainable before this Commission. In this regard the opposite party No.2 has also referred the averment of the complainant in paragraph No.2 of their legal notice dated 05.12.2019 and averred that purchase of five trucks in the business clearly shows that it was for profit motive and it being a commercial transaction, this complaint is out of the ambit and jurisdiction of the Act.
6. The opposite party No.2 has specifically denied that he travelled from Nanded to Durg for transportation of the said vehicles and averred that the Partly Allowed. Page 5 of 17 Complaint Nos.: Smt. Gita Patel Date of CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023 vehicles were purchased via an auction in Aurangabad, Shriram Yard and the said vehicles were brought from Regional Office of the ICICI Bank, Aurangabad. The opposite party No.2 has denied any business relationship with the opposite party No.1, however he has admitted that he suggested the husband of the complainant about opposite party No.1 that it is in business of facilitating and providing services regarding buying and selling of second- hand trucks. Regarding prayer clauses „d‟, „e‟, „f‟, and „g‟ the opposite party No.2 asserted that there is no question of any joint and several liability as the principle of joint and several liability only arises in cases of partnerships or when the person is a guarantor or surety. It is further averred that delivery of all the five trucks were done swiftly without any delay to Mr. Hitesh Patel and from the year 2018 till date he is in possession of the said trucks. The allegations of replacing original engines and parts of the trucks have been denied specifically. Mr. Hitesh Patel expressed full satisfaction on delivery of the trucks and proceeded for getting insurance coverage of the said vehicle on 28.02.2019 it is very important to take note of the fact that for insurance of the vehicles, after transfer from one state to another, the insurance company inspected the vehicles for defects and duplicate parts but they did not find any temporary or permanent alterations. The repairing work of the said trucks were done on or after 26.10.2019 which shows that the said repair work was done after getting the trucks insured.
7. It is further averred that the opposite party No.2 incurred total expenses of approximately Rs.10,00,000/- (Ten Lacs) in transporting the five trucks including expenses of tyres, diesel, driver, toll tax etc. and when the husband of the complainant was asked for remainder payment false assurances were given, the payment is still pending and just to escape the liability of payment Mr. Hitesh Patel has initiated many criminal cases also. In this complaint, the complainant has merged three different disputes in Partly Allowed. Page 6 of 17 Complaint Nos.: Smt. Gita Patel Date of CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023 order to raise the monetary transaction value for qualifying the pecuniary jurisdiction of this Commission. The complainant has clubbed three different cases against three independent parties and the claim made against this opposite party i.e. opposite party No.2 is only of Rs.3,00,000/- (Three Lacs), which is less than the pecuniary jurisdiction of this Commission prescribed under the Act, hence this complaint be rejected against the opposite party No.2. On the basis of above averments, the opposite party No.2 prayed that the complaint be dismissed against him with cost. The written version is supported by affidavit dated 14.12.2022 of the opposite party No.2.
8. The opposite party Nos.1 & 3 remained unrepresented before this Commission even after proper service of notice, hence the matter was proceeded ex-parte against them.
9. In support of the complaint, supported with affidavit, the complainant has filed documents as per list which are marked as Annexure C-1 to C-14 including copies of payment proofs, tax invoices, insurance policy schedules, legal notice, certificates of ICICI Bank to RTO, Form 23 of certificate of registration of vehicles, account ledger enquiry of Hitesh Bhai Patel, letters of Bank of Baroda regarding proof of payment of insurance premium and partnership deed of M/s. C.B. Patel Firm along with PAN Card and registration of the firm. The opposite party No.2 in support of his written version except his affidavit has filed documents marked as Annexure OP-1 to OP-3 which are documents to proof the trucks were brought from Aurangabad and basic expenses which were incurred by the opposite party No.2 to make the truck in moving condition so as to bring them back to Durg, account statement of Mr. Amarjeet Singh, opposite party No.2 and copy of legal notice issued by the husband of the complainant against the opposite party No.2.
Partly Allowed. Page 7 of 17
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10. We have heard final arguments advanced by both parties and minutely perused the record as well as written arguments of learned counsel for the complainant and that of the opposite party No.2.
11. The first and foremost question which arises for consideration is whether the complainant comes under the purview of definition of „consumer‟ and this complaint filed by her is maintainable before this Commission or not ?
12. To determine this issue the definition of „consumer‟ as given under section 2 (7) of the Act is quite relevant and significant to reproduce here, which is as under : -
"(7) "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 service 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 service 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 service for any commercial purpose.
Explanation.--For the purposes of this clause,--
a. the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment; b. the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi- level marketing;"
In the explanation „a.‟ the expression „commercial purpose' has been explained in terms that it does not include use by a person of the goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment. But the word „self employment‟ is not defined Partly Allowed. Page 8 of 17 Complaint Nos.: Smt. Gita Patel Date of CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023 under the Act nor any definition is given. In this regard learned counsel for the complainant has placed reliance on judgements of Hon‟ble Supreme Court in the case of Madan Kumar Singh (D) The LRs Vs. District Magistrate Sultanpur & Ors., Civil Appeal No.5165 of 2009 decided on 09.08.2009; M/s. Paramount Digital Color Lab & Ors. Vs. M/s. Agfa India Pvt. Ltd. & Ors, Civil Appeal No.2109-2110 of 2018, dated 15.02.2018 and Judgements of Hon‟ble National Commission in Tosoh India Pvt. Ltd. (Formerly Lilac Medicare Pvt. Ltd.) Vs. Ram Kumar & 3 Ors, RP No.2833/2018, order dated 06.01.2020 & M/s. Metco Export International Vs. Federal Bank Limited, F.A. No.42/2014, order dated 06.02.2018. Whereas the learned counsel for the opposite party No.2 has relied upon judgement of Hon‟ble Apex Court in Cheema Engineerinig Services (supra) and judgements of Hon‟ble National Commission in Synco Textiles Pvt. Ltd. Vs. Greaves Cotton & Company Ltd., (1991) 1 CPJ 499 & Air India Vs. Mrs. Suganda Ravi Mashelkar, 1993 (25) DRJ. We have considered the above ruling cited by both parties, but the Hon‟ble Apex Court in its recent judgement in Rohit Chaudhary & Anr. Vs. M/s. Vipul Ltd., 2023 LiveLaw (SC) 275; 2023 INSC 807 has described the subject in detail and looking to the law laid down by Hon‟ble Apex Court in the above judgement, hereby we are discussing and proceeding with the same in this order, which is a concurrent view of the Hon‟ble Apex Court. In Rohit Chaudhary & Anr. (supra), the Hon‟ble Apex Court has described the services or any goods used for self-
employment discussing its previous judgement in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers & Others (2020) 2 SCC 265 wherein the principle laid down in Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583 was discussed in detail. In paragraph No.11 & 12 of Rohit Chaudhary & Anr. (supra) case the Hon‟ble Apex Court has held as under : -
Partly Allowed. Page 9 of 17
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"11. A plain reading of the expression "consumer" indicates that any person who buys any goods for consideration which has been paid or promised or partly paid and partly promised under any system of deferred payment and includes any user of such goods other than the person who buy such goods. 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 22 person who obtains such goods or services for resale or for any commercial purpose. It is amply clear from the above definition that the Parliament has excluded from the scope of 'Consumer' for igniting proceedings under the Act, a person who obtains goods or services for re-sale or for any commercial purpose. Going by the plain dictionary meaning of the words used in the definition section the intention of Parliament must be understood to be to exclude from the scope of the expression "consumer" any person who buys goods for the purpose of their being used in any activity engaged on a large scale for the purpose of making profit. The words 'for any commercial purpose' must be understood as covering the cases other than those of resale of the goods. Thus, it is obvious, that Parliament intended to exclude from the scope of 23 definition not merely persons who obtain goods for resale but also those who purchase goods with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit. Thus, persons buying goods either for resale or for use in large scale profit making activity will not be a consumer entitled to protection under the Act, which would be a plain interpretation of this definition clause. The intention of the Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit making activity engaged on a large scale.
12. The expression 'commercial purpose' has not been defined under the Act. In the absence thereof we have to go by its ordinary meaning. 24 'Commercial' denotes "pertaining to commerce" (chambers 20th Century dictionary); it means 'connected' with or engaged in commerce; mercantile; "having profit as the main aim" (Collin's English Dictionary); relate to or is connected with trade and traffic or commerce in general, is occupied with business and commerce. The Explanation (added by Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance of 24 of 1993 w.e.f. 18.06.1993) excludes certain purposes from the purview of the expression 'commercial purpose'- a case of explanation to an exception to amplify this definition by way of an illustration would certainly clear the clouds surrounding such interpretation. For instance, a person who buys a car for his personal use would certainly be a consumer, but if purchased for plying 25 the car for commercial purposes namely as a taxi, it can be said that it is for a commercial purpose. However, the Explanation clarifies that even purchases in certain situations for 'commercial purposes' would not take within its sweep the purchaser out of the definition of expression 'consumer'. In other words, 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 would continue to be a 'consumer'. This court in the case of Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers (supra), has held that a straight jacket formula cannot be adopted in every case and the broad principles which can be curled out for determining whether an activity or transaction is for a commercial purpose would depend on facts and 26 circumstances of each case. Thus, if the dominant purpose of Partly Allowed. Page 10 of 17 Complaint Nos.: Smt. Gita Patel Date of CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023 purchasing the goods or services is for a profit motive and this fact is evident from record, such purchaser would not fall within the four corners of the definition of 'consumer'. On the other hand, if the answer is in the negative, namely if such person purchases the goods or services is not for any commercial purpose and for one's own use, it cannot be gainsaid even in such circumstances the transaction would be for a commercial purpose attributing profit motive and thereby excluding such person from the definition of 'consumer'. When there is an assertion in the complaint filed before the Consumer Court or Commission that such goods are purchased for earning livelihood, such complaint cannot be nipped at the bud and dismissed. Evidence tendered by parties will have to be 27 evaluated on the basis of pleadings and thereafter conclusion be arrived at. Primarily it has to be seen as to whether the averments made in the complaint would suffice to examine the same on merits and in the event of answer being in the affirmative, it ought to proceed further. On the contrary, if the answer is the negative, such complaint can be dismissed at the threshold. Thus, it would depend on facts and circumstances of each case. There cannot be any defined formula with mathematical precision to examine the claims for non-suiting the complainant on account of such complaint not falling within the definition of the expression 'consumer' as defined under Section 2(1)(d)."
The Hon‟ble Apex Court in the above judgement has described the self-employment and services or any goods used for self-employment. If any person in engaged and purchased any article or goods for self-employment there is no any limit prescribed under the Act as to what should be the cost or value of such article. Any scale is not framed for self-employment as to under which monetary limit the self-employment is covered. It depends upon facts and circumstances of each and every case and should be determined on the basis of peculiar facts and circumstances of that particular case. In the instant case the complainant is one of the partner duos of partnership firm M/s. C.B. Patel. The partners are two women in which one is a 76 years old mother-in- law of the complainant and the complainant is a 43 years old lady. As per pleadings in paragraph Nos.2 & 3 of the complaint said partnership firm was constituted in December 2015 for earning their livelihood and the said Firm undertakes civil contract works including transportation or maintenance work. In the record learned counsel for the complainant has also filed copy of Partnership Deed, Firm Registration Certificate and copy of vendor registration to show that the partnership firm M/s. C.B. Patel is a registered Partly Allowed. Page 11 of 17 Complaint Nos.: Smt. Gita Patel Date of CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023 vendor of Bhilai Steel Plant for carrying out work of loading/ unloading/ handling/ transportation work, housekeeping including cleaning sweeping, mopping etc, civil work: construction and repair of buildings, mechanical work, erection, repair and maintenance etc. Therefore, no question arises that whether two women can constitute a partnership firm for the purpose of self- employment, there is no any bar under the Act, neither in the Partnership Act nor in the Income Tax Act that for self-employment a partnership firm cannot be constituted or a partnership firm cannot be operated for the purpose of self-employment.
13. As per pleadings in the paragraph Nos.2 & 3 of the complaint, the complainant has specifically mentioned that they constituted a partnership firm for earning their livelihood and looking to the fact that a 76 years old women is one of the partner and the complainant is 43 years of age therefore we cannot deny that they constituted the partnership firm for earning their livelihood by means of self-employment. Now the objection raised by the opposite party No.2 that the complainant has purchased five trucks for transporting business it cannot be treated as self employment. For example if any self-employed person carrying out business of typewriting, it is not necessary that he can use only one typewriter and he if he uses ten typewriters and giving training to other persons as a self-employed person it cannot be a bar under any law to cease him as a self-employed persons, just like any person uses four or five vehicles for transporting driven by his driver and looking to the fact that both partners are women in this case she can very well appoint drivers to drive the vehicles in question. Therefore, when we consider the facts and circumstances of the case and available documents and statement of Smt. Gita Patel in her affidavit that they have constituted the firm for self-employment and looking to the fact that one partner is 76 years old women we are of the considered view that women can constitute Partly Allowed. Page 12 of 17 Complaint Nos.: Smt. Gita Patel Date of CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023 partnership firm for the purpose of earning livelihood by means of self- employment and it is not a restriction that only one truck can be used by them for transporting. They can use one, two, four, five or more trucks altogether as per their need and which can be driven by appointed drivers. It is not necessary for a self-employment person that his truck is driven by himself, it may be driven by his driver and he can take assistance of other helpers/ persons too. Looking to the fact that in our country women are now in growing stage in business and they are doing their own businesses and they can hire or appoint drivers to assist them in running their transport business. Therefore, we are of the considered view that the complainant comes under the purview of definition of „consumer‟ as defined under Section 2(7) of the Act and this complaint is very well maintainable before this Commission.
14. Thus, with the foregoing discussion in our thoughtful consideration we give the affirmative answer of the first issue against the opposite parties and in favour of the complainant and held the complainant consumer of the opposite parties and this complaint as maintainable before this Commission.
15. Looking to the documents available on record Annexure Nos.C-8 (Colly.) to C-13 (Colly.) which are No Objection Certificates issued by the Bank opposite party No.3 and Form No.26 under Rule 53 signed by the original owners of the vehicles in question, which were provided to the purchaser complainant regarding the sold five trucks in question by the opposite party No.3 and are filed by the complainant along with the complaint, there is no any reason or refusal shown of the Registering Authority or the concerned Government Department for transfer of registration in favour of the complainant and nor any specific document was asked from the complainant as requirement for completing the formalities of transfer of registration. If the sell letter and NoC was given by the opposite Partly Allowed. Page 13 of 17 Complaint Nos.: Smt. Gita Patel Date of CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023 party No.3 Bank and possession of the vehicle was also handed over along with the above mentioned documents, which are already filed by the complainant before this Commission also, therefore no default can be attributed upon the opposite party No.3 Bank. The opposite party No.3 Bank had complied with its obligations under the transaction by handing over the possession immediately after sale of the vehicles and issuance of NoC along with Form 26 under rule 53 signed by the original owners of the vehicles in question along with copy of registration certificates. Thereafter, the vehicles were transported from the place of sale to the self-employment place of the complainant by the opposite party No.1. Original registration certificate was not required, if the sell letter and NoC was already given along with photocopy of registration certificate. Otherwise also there is no any document to show that the RTO department has refused the transfer of registration of the vehicles in question in favour of the complainant. Thus, in our considered opinion the opposite party No.3 Bank has complied with its obligations under the sale transaction of vehicles in questions and allegations of any deficiency in service is not proved by the complainant against the opposite party No.3 Bank. Accordingly no liability can be attributed upon the opposite party No.3.
16. So far as the allegations leveled against opposite party No.2 is concerned the only allegation against him is that he took Rs.3,00,000/- (Three Lacs) for transportation of the vehicles from Nanded, Maharashtra to Durg Chhattisgarh, he brought all the vehicles from Nanded, Maharashtra to Durg Chhattisgarh and gave the said vehicles to Jaika Automobiles & Finance Pvt. Ltd. for necessary repairing and servicing and while such servicing it revealed that original engines and parts were replaced with old ones, whereas it was the duty of the opposite party No.2 to safely transport the trucks in question from Nanded Maharashtra to Durg Chhattisgarh. It is an Partly Allowed. Page 14 of 17 Complaint Nos.: Smt. Gita Patel Date of CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023 admitted fact that the duty of transporting the vehicle from the location of its selling to the Durg was given to the opposite party No.2 and the amount paid against which is also an admitted fact. The vehicles were delivered to the complainant with satisfaction of husband of the complainant while hand over of all the five vehicles. The allegation against the opposite party No.2 regarding change of original engine and parts also appears baseless as no concreted evidence to prove the fact has been brought on record. The vehicle was handed over on 2018 and till the date of legal notice sent to him on 05.12.2019 neither any notice nor any FIR or complaint was made regarding change of original engines or parts. The vehicle was repaired as per the invoice of April 2019 submitted by the complainant herself as Annexure C-4 (Colly.), therefore the allegation made against the opposite party No.2 is not acceptable in anyway. Otherwise also if the facts were so as contended in the complaint, it is unbelievable that the complainant waited for such a long time without giving any notice or lodging FIR etc. regarding the theft or change of original engine of the vehicles. It clearly appears in the facts and circumstances of the case that the opposite party No.2 transported the trucks and handed over them to the complainant at their place of self-employment promptly as per the agreement. Therefore, in our thoughtful consideration no allegation of any deficiency in service or unfair trade practice is proved against opposite party No.2 also.
17. Now we consider the allegations leveled against the opposite party No.1. The opposite party No.1 remained ex-parte in this case even after proper service of notice. As per contentions made in the complaint the opposite party No.1 was given an amount of Rs.20,00,000/- (Twenty Lacs) on 05.12.2018 vide cheque No.648314 through RTGS/NEFT transfer, as per Annexure C-2 for completing formalities with regard to transfer of registration, permit, fitness, insurance and taxes etc. regarding all the five Partly Allowed. Page 15 of 17 Complaint Nos.: Smt. Gita Patel Date of CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023 trucks in question, but the opposite party No.1 failed to comply with its obligations and hence has committed deficiency in services. These allegations remained uncontroverted, therefore it is proved by the complainant that the opposite party No.1 received Rs.20,00,000/- (Twenty Lacs) for providing services of completing formalities with regard to transfer of registration, permit, fitness, insurance and taxes etc. regarding all the five trucks in question purchased from the opposite party No.3 and that amount is still with the opposite party No.1 but it has failed to comply with its obligations undertaken against the said amount of Rs.20,00,000/- and thus has committed deficiency in services. These facts remained proved by the strong uncontroverted evidence hence we are of the considered view that the opposite party No.1 has committed deficiency in service in not providing the services as per the contract between the parties.
18. Regarding the insurance which was taken by the complainant, looking to the facts and circumstances of the case, we are of the view that possession of all the five trucks was taken by the complainant in the month of December 2018, therefore obtaining insurance coverage for the vehicles was mandatory duty of the complainant and the vehicles were repaired during 2019, which shows that the vehicle was in running condition and was being used by the complainant, therefore she took the insurance coverage and it cannot be termed as any loss caused to the complainant. The vehicle was already registered in the name of the original owners Gyan Singh Katwal, Harmesh Singh Katwal and Satnam Singh Katwal and the Form 26 as per rule 53 was also handed over to the complainant, which is filed along with his complaint. Therefore, it appears that transfer of registration was not done by the opposite party No.1 this is the only act which can be termed as deficiency in service solely on the part of the opposite party No.1 only. Partly Allowed. Page 16 of 17
Complaint Nos.: Smt. Gita Patel Date of
CC/22/02 Vs. Pronouncement:
M/s. A.M. Services & Ors. 03/11/2023
19. With the foregoing discussion, we are of the considered opinion that this complaint is devoid of any substance against the opposite party Nos.2 & 3, hence it is dismissed against them. This complaint having substance, as far as against opposite party No.1 is concerned, is partly allowed with the following order to the opposite party No.1 :-
(i). To pay the complainant Rs.20,00,000/- (Twenty Lacs) as refund of the entire amount received by opposite party No.1 from the complainant.
(ii). To pay interest on the above amount @ 6 % p.a. from 05.12.2018 (i.e. the date of actual payment of the amount) till realization.
(iii). To pay compensation for mental agony to the complainant Rs.30,000/-
(Thirty Thousand).
(iv). To pay cost of litigation to the complainant Rs.10,000/- (Ten Thousand).
(Justice Gautam Chourdiya) (Pramod Kumar Varma)
President Member
/11/2023 /11/2023
Pronounced On: 3rd November 2023
Partly Allowed. Page 17 of 17