State Consumer Disputes Redressal Commission
Dynamic Desiner Company vs Sandeep Singh Arora And Other'S on 19 July, 2019
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
FA No. 1491 /2008.
Dynamic Designer Company
Prop / Manager Dynamic Designer Co.,
Plot No.29, Industrial Estate,
Richhai, Jabalpur (M.P.). .... APPELLANT.
VERSUS
1. Sandeep Singh Arora
s/o Late Charansingh Arora,
R/o Krishna Nagar Satna,
District Satna (M.P.).
2. Tata Motors Ltd.,
Through General Manager Tata Motors,
Napier Town, Jabalpur (M.P.).
3. Commercial Automobiles Ltd.,
Through Manager Commercial Automobiles
Ltd., Head Office - 124, Napier Town,
Jabalpur (M.P.). .... RESPONDENTS.
FA No. 1492 /2008.
Dynamic Designer Company
Prop / Manager Dynamic Designer Co.,
Plot No.29, Industrial Estate,
Richhai, Jabalpur (M.P.). .... APPELLANT.
VERSUS
1. Sandeep Singh Arora
s/o Late Charansingh Arora,
R/o Krishna Nagar Satna,
District Satna (M.P.).
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2. Tata Motors Ltd.,
Through General Manager Tata Motors,
Napier Town, Jabalpur (M.P.).
3. Commercial Automobiles Ltd.,
Through Manager Commercial Automobiles
Ltd., Head Office - 124, Napier Town,
Jabalpur (M.P.). .... RESPONDENTS.
FA No. 1493 /2008.
Dynamic Designer Company
Prop / Manager Dynamic Designer Co.,
Plot No.29, Industrial Estate,
Richhai, Jabalpur (M.P.). .... APPELLANT.
VERSUS
1. Sandeep Singh Arora
s/o Late Charansingh Arora,
R/o Krishna Nagar Satna,
District Satna (M.P.).
2. Tata Motors Ltd.,
Through General Manager Tata Motors,
Napier Town, Jabalpur (M.P.).
3. Commercial Automobiles Ltd.,
Through Manager Commercial Automobiles
Ltd., Head Office - 124, Napier Town,
Jabalpur (M.P.). .... RESPONDENTS.
BEFORE:
HON'BLE SHRI JUSTICE SHANTANU S. KEMKAR, PRESIDENT
HON'BLE DR. (SMT) MONIKA MALIK, MEMBER
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COUNSEL APPEARING FOR THE PARTIES :
SHRI DEEPESH JOSHI, LEARNED COUNSEL FOR THE APPELLANT.
SHRI UMESHWAR DAYAL, LEARNED COUNSEL FOR THE
RESPONDENT NO.1.
SHRI J. S. PARMAR, LEARNED COUNSEL FOR THE
RESPONDENT NO.2.
SHRI R. K. DHOTE, LEARNED COUNSEL FOR THE
RESPONDENT NO.3.
ORDER
(Passed on 19/7/2019) The following order of the Commission was delivered by Shantanu S. Kemkar, J :
All these appeals are arising out of order dated 29.4.2008 passed by the District Consumer Disputes Redressal Forum, Satna (for short the "Forum") in Complaint Case Nos.268/F/2007, 273/F/2007 and 275/F/2007. Since the facts and the question of law in all the appeals are identical they are being decided by this common order.
2. Briefly stated, the first respondent / complainant had purchased three Tata 2515 chassis bearing Nos.426031 KUZ 135131, 426031 LUZ 751651 and 426031 KUZ 135134 from the second respondent - Tata Motors. The said three
- 4- chassis were handed over by the first respondent to the appellant (opposite party no.3) for construction of bulker (body and cabin) on it for carrying out business of transportation of fly ash.
3. According to the first respondent - complainant the construction of bulker on the said chassis was not made by the appellant as per the requirements and specifications needed for the bulker. Alleging deficiency in service by constructing defective body of bulker on the chassis, the first respondent approached the Forum seeking issuance of directions against the appellant for reconstruction of the bulkers on the said chassis or to refund the amount paid by him with interest, cost and compensation.
4. The appellant (opposite party no.3) filed reply of denial of the allegations. It is stated that the bulker was constructed as per the specification and because of its improper use by the employees of the first respondent there was some problem. The appellant also raised the objection about the maintainability of the complaint on the ground that the first respondent - complainant will not fall within the definition of "consumer" as defined under Section 2 (1)(d)(ii) of the Consumer Protection Act, 1986 (for short the "Act") and as such the complaint is not maintainable.
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5. After considering the evidence led by the parties the Forum though held that the complainant is not covered under the definition of "consumer", allowed the complaint by saying that the appellant had adopted "unfair trade practice". Having held so the Forum directed the appellant to reconstruct the bulker on the chassis given by the first respondent without charging for the same. Alternatively it said that in case the reconstruction is not possible to refund the amount received from the first respondent with interest @12% from the date of receipt of the said amount till payment and also directed the appellant to pay Rs.15,000/- for each chassis, totalling to Rs.45,000/- to the first respondent for adopting "unfair trade practice". Feeling aggrieved the appellant (opposite party no.3) has filed this appeal.
6. On going through the pleadings and the evidence led by the parties it is revealed that the first respondent complainant had purchased total three chassis for transportation of fly ash. He handed over the said chassis to the appellant for constructing bulker body on them for carrying out business of transportation of fly ash.
7. In view of the aforesaid pleadings and the evidence learned counsel for the appellant placing reliance on the judgement delivered by the National Commission in the case of Jogender Singh Versus Cholamandalam DBS Finance Ltd. & Anr., I (2011) CPJ 264 (NC) argued that the first respondent - complainant will not come within the definition of "consumer" as defined under
- 6- Section 2 (1)(d)(ii) of the Act and as such the impugned order passed by the Forum though holding the first respondent to be not covered under the definition of consumer instead of dismissing the complaint grossly erred in allowing the complaint and granting the relief by holding that the appellant / opposite party no.3 had adopted "unfair trade practice".
8. On the other hand, learned counsel for the first respondent has supported the impugned order and has argued that the Forum has rightly held that the appellant had constructed defective bulkers and as such liable to refund the amount and compensate the first respondent as he had adopted "unfair trade practice". To support the impugned order he placed reliance on a judgement delivered by the National Commission in the case of Viewtech Imaging Equipment Pvt. Ltd. & Anr. Versus CMC Ltd. & Anr., II (2008) CPJ 240 (NC).
9. We have heard learned counsel for the parties and perused the record.
10. Before dealing with the question involved in the matter we feel it appropriate to extract the definition of the term "consumer" as it stands today and
- 7- is relevant for the purpose of consideration of the case in hand :-
"(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."
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11. In the present case we find that the Forum in Paragraph 6 has recorded a categorical finding that the first respondent - complainant having purchased "three chassis" cannot be said to be a "consumer" as it cannot be said that he purchased the three chassis for the purpose of earning his livelihood by means of self-employment. This finding in our considered view cannot be said to be incorrect or illegal on the other hand is supported by the judgement of the Supreme Court in case of Laxmi Engineering Works versus P.S.G. Industrial Institute, II (1995) CPJ 1 (SC) and Madan Kumar Singh (D) Thr. LR. Versus Distt. Magistrate, Sultanpur & Ors., IV (2009) CPJ 3 (SC) and the judgement of National Commission in the case of Eicher Motors Ltd. versus Dilip Chandra Kant Vaidya & Ors., I (2007) CPJ 51 (NC) and Jogender Singh Versus Cholamandalam DBS Finance Ltd. & Anr., I (2011) CPJ 264 (NC).
12. Further, the first respondent had purchased three chassis for his business of transporting fly ash which as per document Ex. C-12 available on record he was already carrying. The services of construction of bulker of the said chassis availed from the appellant by the first respondent cannot be said to be for the purposes of earning his livelihood by means of self-employment. Strangely, inspite of the aforesaid clear finding as recorded in paragraph 6 of the impugned order the Forum proceeded with the complaint further and recorded a finding that
- 9- the appellant had not constructed the bulker as per the requirement and had constructed tanker on the chassis thereby it has committed "unfair trade practice". After having held so the Forum had passed the impugned order against the appellant saddling it with liability. In our considered view the Forum having recorded a finding and rightly to the effect that the first respondent - complainant cannot be said to be covered under the definition of "consumer" it had committed gross error and had exceeded in its jurisdiction in going further so as to held the appellant liable to compensate the complainant on the ground that it had adopted "unfair trade practice". In our considered view the "sine qua non" for entertaining a complaint is that the complainant should be covered under the definition of "consumer". This vital aspect of the matter has escaped from the mind of the Forum while proceeding further and granting relief to the first respondent.
13. So far as the judgment in the case of Viewtech Imaging Equipment Pvt. Ltd. & Anr. Versus CMC Ltd. & Anr.,(supra) on which reliance has been placed by the learned counsel for the first respondent we find that the said judgement was prior to the Amendment to the definition of the term consumer which came into force in 2003 and as such has no applicability to the present case. Even otherwise the said judgement is distinguishable on facts.
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14. In this view of the matter, in our considered opinion the impugned order passed by the Forum being unsustainable the same deserves to be and is hereby set aside.
15. The appeals are allowed with no order as to the costs. This order be retained in FA No.1491/2008 and a copy of the same be kept in the record of FA No.1492/2008 and 1493/2008.
(Justice Shantanu S. Kemkar) (Dr. Monika Malik)
PRESIDENT MEMBER
phadke