State Consumer Disputes Redressal Commission
The Divisional Forest Officer vs 1. D.Doraiswamy Naidu S/O Subba Naidu on 8 July, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.78 of 2012 AGAINST C.C.No.NO.72 OF 2010 DISTRICT FORUM-II TIRUPATHI Between The Divisional Forest Officer Flying Squad Division, Tirupathi Appellant/opposite party no.1 A N D 1. D.Doraiswamy Naidu S/o Subba Naidu Kasipentla Village & Post Chandragiri Mandal, Chittoor Dist. Respondent/complainant 2. The Regional Transport Authority Regional Transport Office, Thummalagunta Tirupathi Respondent/opposite party no.2 Counsel for the Appellant M/s GP for State Counsel for the Respondents M/s K.Suresh Kumar Reddy(R1) M/s K.C.Venkat Reddy (R2) QUORUM: SRI R.LAKSHMINARSIMHA RAO, HONBLE MEMBER
& SRI THOTA ASHOK KUMAR, HONBLE MEMBER MONDAY THE EIGTH DAY OF JULY TWO THOUSAND THIRTEEN Oral Order ( As per R.Lakshminarsimha Rao, Member) ***
1. The first opposite party is the appellant. The appeal is challenge to the order of the District Forum whereby the District Forum directed the appellant to return the amount of `5,18,586/-
with interest @ 12% and costs of `10,000/-.
2. The appellant seized Lorry bearing number AP 16TU 0618while it was transporting contraband red sander logs on 18.11.2008 at Singamala cross roads in Srikalahasti range. The appellant addressed letter to the RTA Chennai to furnish the ownership details of the vehicle and issued notification in newspapers on 16.02.2009 for appearance of the owner of the lorry and thereafter passed order dated 01.02.2009 confiscating the lorry. The appellant requested the second respondent to furnish details of the value of the vehicle and the second respondent after inspecting the vehicle on 5.05.2009 furnished on 13.04.2009 the value of the vehicle as `4,32,000/-. The appellant invited tenders by issuing notice in newspapers on 18.04.2009 for the sale of the vehicle. Prior to the sale of the vehicle in question, the appellant sold hundreds of confiscated vehicles. The first respondent paid the dues to the appellant and the second respondent.
3. The second respondent addressed letter dated 21.10.2009 requesting the appellant to confirm whether the auction was conducted and whether the first respondent purchased the vehicle in the auction. The first respondent paid insurance premium and registration charges to the second respondent and the second respondent declined to register on the premise that the engine number and chassis number of the vehicle sought to be registered had been found on the rolls for the vehicle bearing registration number AP16TU-0618. The first respondent filed complaint seeking for return of the amount received from him towards cost of the vehicle and the District Forum allowed the complaint against the appellant and dismissed it against the second respondent.
4. The first respondent contended that he is a businessman and he purchased the lorry for consideration of `6,68,000/- as also he paid registration charges and the second respondent declined to register the vehicle on the premise that circular issued by TCAP, Hyderabad prohibits registration of the vehicle which is found not genuine and bogus. He has stated that he incurred huge amount for repairs of the vehicle and due to non-registration of the vehicle., he sustained loss of income.
5. The appellant resisted the claim on the premise that the second respondent inspected the vehicle and assessed its value and at the time, the second respondent has not raised any doubt whether the vehicle is not genuine. It is contended the first respondent purchased the vehicle on 18.11.2009 and he paid the insurance premium and registration charges in the month of October 2009. The appellant has contended that there is no deficiency in service on his part in selling the vehicle after issuing notice and after getting the vehicle inspected and assessed its value.
6. The second respondent has contended that on receiving the papers of the vehicle the records were verified and it was found that on the rolls there has been a vehicle with the same registration number and different engine number as also different chassis number. It is contended that in view of the circular issued by TCAP Hyderabad, prohibiting bogus vehicles from being registered, the vehicle was refused to be registered. It is contended that the vehicle has to be treated as scrap and as such it could not be registered.
7. The first respondent filed his affidavit and the documents, Exs.A1 to A13. The appellant the second respondent filed their affidavits and the documents, Exs.B1 to B17. During pendency of the appeal, the appellant has filed additional evidence, Exs.B18 to B21.
8. The first opposite party has filed appeal contending that the first respondent is not consumer and the appellant was discharging sovereign functions in the matter of the sale of the vehicle. It is contended that the second respondent inspected the vehicle and assessed its value and at the time the second respondent has not raised any doubt as to whether the vehicle is not genuine. It is contended that the appellant sold the vehicle following due process and the District Forum failed to consider Rule 57(2) of the Central Motor Vehicle Rules and that the second respondent failed to conduct enquiry by summoning the owner of the other vehicle with the same registration number as that of the lorry sold by the appellant.
9. The points for consideration are:
i) Whether the first respondent is a consumer?
ii) Whether the appellant and the second respondent rendered deficient service?
iii) To what relief?
10. POINT NO.1: The facts beyond any dispute are that the appellant seized the Lorry bearing registration number TN 23J 2187 on 18.11.2008 while it was transporting contraband red sander logs and he had issued notification on 16.02.2009 for appearance of the owner of the vehicle or his representative and as no one appeared to claim the vehicle, the appellant issued proceedings on 01.02.2009 confiscating the vehicle. It is not disputed that the appellant requested the second respondent as to assessment of value of the vehicle and thereafter confirming the condition of the lorry as road worthy, issued notice inviting bidders for purchase of the lorry. The tenders submitted by the first respondent was accepted and he was declared successful bidder and the first respondent deposited the amount towards the sale consideration of the lorry.
11. The first respondent paid the insurance premium and charges for transfer of the lorry in his name. The second respondent declined to register the vehicle on the premise that another vehicle with the same registration number and different engine number and chassis number has been found registered and as such hthe vehicle was not found genuine. The circular dated 8.03.2010 issued by TCAP, Hyderabad prohibited the registering authorities from registering the vehicle which is not genuine and is to be sold as scrap. Clauses 1, 2 and 3 of the circular read as follows:
1. Whenever a vehicle is seized by a State government or Central Government Authority and is confiscated and proposed for auction, the said authority shall contact the nearest Transport Department Registering Authority and find the genuineness of the vehicle. Only if the vehicle is found to be a genuine vehicle with a proper Engine Number, Chassis Number and other registration details, then the said Authority shall find out from the Registering Authority of that vehicle whether any motor vehicle tax arrears are due for the vehicle. If there are any motor vehicle tax arrears, the same shall be collected and paid by the respective authority at the time of auction of vehicle. In cases, where the vehicle is found to be a non-genuine or a bogus or a fake vehicle such vehicle shall be sold by the said Authority as Scrap only and the said vehicle shall not be registered by the Transport Authority.
2. The Auctioning Authorities are requested not to auction the vehicles seized by them unless the geniuses is obtained from the Regional transport Authority.
Wherever there are tax arrears, the said vehicle will be registered under Rule 57 of Central Motor Vehicles 1989 only after payment of the tax arrears with penalty. Wherever the Registering Authority certifies the vehicle to be non-genuine vehicle, the Auctioning Authority shall sell such a vehicle as scrap only and it is informed that under no circumstances the said vehicle will be brought on to the rolls of the Transport Department.
3. Whenever any State Government or Central Government Authority requests the Registering Authority regarding inspection of the vehicles seized by them, the Registering Authority shall get the vehicle inspected and inform the genuineness of the vehicle besides the details of tax arrears, if any, pending against such vehicle. Where the Inspecting Authority finds that the genuine No., Chassis No., or other basis features of the vehicle are altered, the Registering Authority shall intimate the Auctioning Department that the said vehicle shall be sold as scrap only and that the said vehicle will not be registered.
12. The proceedings of the second respondent declining to register the vehicle reads as under:
In the reference 2nd cited, the Transport Commissioner, A.P, Hyderabad has informed that the vehicle Chassis Number KVR213196 is found to have been registered as AP16TU0618 as per data available in the server.
Accordingly a letter was addressed to the Deputy Transport Commissioner, Chittoor. The Deputy Transport commissioner, Chittoor has informed that the vehicle AP16TU0618 chassis number KVR 213196 and Engine Number FVH229370 is stands in the name of Sri S.Balamurugan, S/o Sampath, D.No.15-2269, C.B.Road, Chittoor and the vehicle is covered by national permit valid upto 2.11.2014 with Fitness Certificate valid upto 29.10.2010 and also taxes paid regularly. In the reference 5th cited the T.C., A.P., Hyderabad has given circular instruction where the vehicle is found to be a non-genuine or a bogus or a fake vehicle. Such vehicle shall be sold by the said Authority as scrap only and the said vehicle shall not be registered by the Transport Authority. In this case, the chassis Number KVR 213196 and Engine Number FVH 229270 of the vehicle is already existing on the rolls for the Chittoor. Hence, it is proved that the confiscated vehicle is a non-genuine or a bogus vehicle.
Therefore the request of applicant Sri D.Doraswamy Naidu, of Kasipentla is not considered and also advised to sold the vehicle as scrap and not to register the vehicle in the name of confiscated officer.
13. The learned government pleader has contended that the appellant had sold the vehicle by following due procedure and the fault if any, is on the part of the first respondent who has not taken any prompt steps for registration of the vehicle till the date of issue of the circular by the Transport Commissioner, Hyderabad and he has submitted that the second respondent has the obligation to register the vehicle as he had inspected the vehicle and assessed its value and at any point of time he had not found the vehicle bogus. He has relied upon the decision of the Honble High Court in B.Rama Krishna Reddy vs Dy. Transport Commissioner and another in W.P.No.23980 of 2010 wherein the High Court considered various circumstances providing for registration of the vehicle as under:
Until and unless a motor vehicle is found not to be roadworthy, the question of the registering authority registering the same as a motor vehicle would not arise. Such a situation has not been allowed to crop up in the instant case. Right at the threshold, the application and request of the writ petitioner for registering the vehicle purchased by him, has been turned down by the 1st respondent. That, to my mind, is impermissible in terms of the mandate contained in Sub-rule (2) of Rule 57 of the Rules. The 1st respondent ought to have recognized the State Government in its Excise Department as the true owner of the vehicle. It ought to have subjected the vehicle for inspection and check to test its roadworthiness. Thereafter, perhaps, it would have justified in deciding as to whether the vehicle should be treated as a motor vehicle or it should be declared as a scrap.
Without doing so, as a rule of thumb, in every case, where motor vehicles are sold on public auction, should not be treated as scrap as intended and suggested by the Transport Commissioner.
Let us look at from a different perspective also. It may not be difficult for one to visualize a situation where the State and the Central Governments should be acquiring large number of motor vehicles for the use of its officers.
As a prudent practice, after they have run for certain number of kilometers or after they have been in use for a fixed number of years, the State would be requiring to replace them with new set of vehicles. The old vehicles, hence would be treated to have been condemned.
14. Before discussing the aspect whether the first respondent is entitled to the relief of refund of the amount paid by him towards the cost of the lorry, we feel it is essential to deals with the juridical aspect of the case as the learned counsel for the appellant has contended that the appellant was discharging sovereign function in the process of confiscation and sale of the vehicle. The first part of contention that the appellant was discharging sovereign function in the matter of confiscation of the vehicle can be accepted to be tenable and as regards the other part of the contention that the sovereign function of the appellant is involved in sale of the vehicle is concerned, we do not subscribe to the view. The sale of the vehicles for consideration would not be a sovereign function of the appellant. However, the first respondent cannot maintain the complaint as he purchased the lorry for his business activity which is commercial purpose and any purchase of goods or availing of service for commercial purpose falls within the ambit of exception clause of Section 2(1)(d) of the Consumer Protection Act.
15. The Honble National Commission in Smt Sushma Goel vs Punjab National Bank in R.P.No.134 of 2011 decided on 7.4.2011 held that a person or firm operating account with his Bank for commercial purpose cannot claim status of Consumer under Consumer Protection Act to maintain complaint against the Bank. The National Commission held:
7. From this and the evidence produced on behalf of the Complainant before the fora below, it is abundantly clear that the entire matter in the complaint filed by Smt. Sushma Goel relates to operation of a bank account maintained by a commercial organization for a commercial purpose. The revision petition itself claims in para 3.1 that Revisionist is engaged in business of the share trading and is an authorized agent of M/s Bonanza Portfolio Ltd (herein referred to as Company) a company incorporated under Companies Act 1956 having its registered office at 4353/4C, Ansari Road, Darya Ganj, New Delhi.
8. By this admission, the complaint will fall within the exception clause contained in Section 2(1)(d)(ii) of the Consumer Protection Act, as amended in 2002. In terms of this provision, the RP/Complainant does not qualify to be a consumer for the purposes of the Consumer Protection Act, 1986. Therefore, in our view, the State Consumer Disputes Redressal Commission Uttrakhand has rightly rejected the Consumer Complaint filed by the Revision Petitioner.
16. In Birla Technologies Ltd vs Neutral Glass and Allied Industries reported in 2011 NCJ 390 (SC), it was held that service provided by a service provider for commercial purpose is excluded from the ambit of Section 2(1)(d) of the Consumer Protection Act. The Honble Supreme Court held that dispute involving the goods purchased and service utilized for commercial purpose does not come under the purview of the provisions of C.P. Act. Section 2(1)(d) of the Consumer Protection Act excludes the person from invoking its jurisdiction on account of the purchase of goods or utilization of service by him for any commercial purpose.
17. The spirit of provision of law does not intend to extend its benefit to big partnership firms and companies earning profit in lakhs and crores. The first respondent has failed to establish that he would fit in the definition of consumer as defined by Section 2(1)(d) of the Consumer Protection Act.
18. In the complaint, the first respondent referred to the purpose of purchase of the lorry from the appellant as under:
The complainant is a businessman and to operate the said auctioned vehicle, he has invested much amount but he could not operated the same due to non-registration of the said vehicle and due to insufficient of service committed by opposite parties no.1 and 2, as such the complainant sustained heavy loss due to non-ideal for more than 8 monthly period and he sustained heavy loss in running to the offices of 1st and 2nd opposite parties.
19.
The first respondent is a businessman and the predominant purpose for purchase of the vehicle is for its operation as part of the first respondents business activity. Any service availed or goods purchased for commercial purpose cannot be made subject matter of dispute before the Consumer Forum. The point is answered in favour of the appellant.
20. POINT NO.2: in view of the finding under point no.1 that the first respondent is not a consumer, there need be no discussion under this point.
22, POINT NO.3: In the result, the appeal is allowed. The order of the District Forum is set aside.
The first respondent/complainant is at liberty to approach appropriate Court/Forum. In such an event the period spent between the filing of the claim before the District Forum and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Honble Supreme Court in Trai Foods Ltd vs National Insurance Company Ltd and others reported in III (2012) CPJ 17.
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