State Consumer Disputes Redressal Commission
Joaquim D'Costa vs M/S Tata Motors & Others on 12 June, 2015
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
F.A No. 18/2015
Shri. Joaquim D'Costa,
M/s. Harmony Associates,
Kurtarkar Residency,
B/15, Ground Floor,
Opp. Multipurpose School,
Borda, Margao, Goa. .........Appellant
V/s.
1. M/s. Tata Motors,
Passengers Car Business Unit,
13/19, Nagindas Master Road,
Geetanil, Hutatma Chowk,
Fort, Mumbai.
2. M/s. Auto Industries Goa Pvt. Ltd.,
Passenger Car Dealer,
H. O. V. N. Naik Road,
Fatorda, Margao, Goa.
3. Tata Motor Finance,
City Centre Building,
Ground Floor,
Next to Bicholim Urban Bank,
Patto, Panaji, Goa. ........Respondents
Appellant/Complainant is represented by Adv. Shri. P.K. Gude.
Respondent/OP No. 1 is represented by Adv. Shri. S.M. Singhbal.
Respondent/OP No. 2 is represented by Adv. Shri. M.S. Joshi.
No notice is issued to Respondent No. 3.
Coram: Shri. Justice N.A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated: 12/06/2015
ORDER
[Per Justice Shri. N. A. Britto, President] 2 This is a complainant's appeal, filed under Section 15 of the C.P. Act, 1986, and is directed against order dated 28/1/15 of the Lr. District Forum, by which the consumer complaint filed by the complainant on 6/7/10 for replacement of the vehicle and compensation of Rs. 30,000/- has been dismissed on the ground that the complainant is not a consumer; as barred by limitation, etc., etc.
2. In this appeal, we will restrict ourselves to examine only the correctness of the findings given by the Lr. District Forum that the complainant is not a consumer.
3. The complaint was filed with the allegation that the complainant who is a businessmen was also a consumer who had purchased a Tata Safari (Dicor) vehicle manufactured by OP No. 1 from its dealer, OP No. 2, on 17/9/2007 and had registered the same under No. GA- 08/E-3332 on 19/9/07. The vehicle had a warranty of 18 months from the date of sale of the vehicle irrespective of the distance covered and the complaint was filed after the vehicle had covered about 78,028 kms. as on 11/5/10.
4. OP Nos. 1 and 2 had taken the plea that the complainant is not a consumer in relation to the said vehicle. According to OP Nos. 1 and 2, the vehicle was purchased by M/s. Harmony Associates for the purpose of its business and as such the Forum had no jurisdiction. OP No. 2 had also produced in support of their plea, registration certificate of the said firm M/s. Harmony Associates which shows that the firm is duly registered w.e.f. 7/10/05 under registration No. 209 consisting of four partners, including the complainant.
5. It appears that M/s. Harmony Associates had taken a loan from OP No. 3 and as on 16/11/10 a sum of Rs. 2,15,073.23 was due and payable by the said firm/complainant, as stated by OP No. 3 in their 3 written version. On behalf of OP No. 2, it was submitted that the sale letter was issued in favour of M/s. Harmony Associates, though a copy of the same was not placed on record.
6. In support of the complaint, the complainant had produced a receipt dated 28/3/10 to the effect that OP No. 3 had received from the borrower M/s. Harmony Associates a sum of Rs. 16,200/-, and, letter dated 24/9/07 addressed, on behalf of OP No. 1, to the said M/s. Harmony Associates with the name of the complainant also written on it. Complainant had also produced service record of the vehicle as well as letter dated 11/5/10 addressed by the complainant on the letter head of M/s. Harmony Associates, builders and developers, to OP Nos. 1 and 2 asking for replacement of the said vehicle.
7. To support the objections taken, that the complainant was not a consumer, Shri. AshwiniKumar D. Naik, Director of OP No. 2, had filed an affidavit stating that the complainant is not a consumer in relation to the vehicle involved in the complaint as the complainant had not purchased the vehicle and the same was purchased by M/s. Harmony Associates which is a business concern carrying on the business of the land development and construction of buildings. Shri. Naik had further stated that the said vehicle was purchased by M/s. Harmony Associates for the purpose of its business for which reason the District Forum had no jurisdiction to entertain and try the complaint.
8. The Lr. District Forum concluded that the facts stated by OP No. 1 in support of their plea that the vehicle was purchased by M/s. Harmony Associates, a business concern of the complainant were not denied by the complainant in his affidavit-in-evidence or written 4 arguments (see para 16) and nowhere in the complaint, the complainant had made out a case that the vehicle was purchased for his personal use or that of his family and thus it is stood established that the complainant had not purchased the said vehicle. The Lr. District Forum referred to the decision of the Apex Court in Laxmi Engineering Works vs. PSG Industries Institute, II 1995 CPJ 1 and to the unreported decision of this Commission dated 26/9/14 in FA No. 31/04 in the case of Sanjay Mohan Volvoiker vs. Shriram Transport Finance Co. Ltd., and held that the complainant had failed to satisfy that he was a consumer within the meaning of that expression in Section (2)(1)(d)(i) of the C.P. Act, 1986.
9. We have perused the record, and heard the arguments.
10. Shri. P.K. Gude, the Lr. Adv. of the complainant would submit that the complainant in the cause title had given only the address of M/s. Harmony Associates on the basis of which the Lr. District Forum presumed that the vehicle was purchased in the name of M/s. Harmony Associates. Shri. Gude submits that the complainant is not using the said vehicle for the business of the firm but he had purchased the same in his name and not that in the name of M/s. Harmony Associates. Lr. Adv. Shri. Gude submits that the C.P. Act, 1986 is a piece of beneficial legislation meant to protect the consumers and as such it is ought to have been liberally construed in the favour of the complainant, but on the contrary, it has been wrongly construed in favour of the OPs. Lr. Adv. Shri. Gude submits that the impugned order has proceeded by non-application of mind and that the accident which the complainant's vehicle had met had nothing to do with its history of defects.
511. On the other hand, Shri. S.M. Singhbal, the lr. advocate of OP No. 1, and Shri. M.S. Joshi, joining him, would submit that the complainant is a partner of the duly registered firm M/s. Harmony Associates and that the said firm had taken a loan from OP No. 3 for the purchase of the said vehicle as can be seen from the very document produced by the complainant, namely receipt dated 28/3/10 issued by OP No. 3 in the name of the borrower M/s. Harmony Associates. Lr. advocates also point out to letter dated 11/5/10 addressed by the complainant to OP Nos. 1 and 2 in the name of the said firm M/s. Harmony Associates Builders and Developers, and submit that in case the complainant had purchased the vehicle in his own name the complainant would not have addressed the said letter in the name of the firm. Lr. advocates submit that the purchase receipt was issued in the name of the said firm and not in the name of the complainant and vehicle also stands registered in the name of firm and not in the name of complainant, but concede that documents to that effect have not been produced by OP Nos. 1 and 2 due to oversight. Lr. advocates submits that the problem started when the said firm stopped making payments of monthly instalments to OP No. 3 towards the loan taken and to evade the payment that the complainant filed the present complaint. Lr. advocates submit that job cards produced by the complainant were also issued in the name of M/s. Harmony Associates and not in the name of the complainant. Shri. M.S. Joshi has placed reliance on Morgan Stanley vs. Kartick Das, 1994(4) SCC 225 wherein the Apex Court has held that:
"There is an increasing tendency on the part of litigants to indulge in speculative and vexatious litigation and adventurism which the fora seem readily to oblige. We think such a tendency should be curbed."6
12. We are unimpressed with the submissions made by Shri. P.K. Gude, the lr. advocate of the complainant. They are not based on record.
13. As already stated Shri.. AshwiniKumar D. Naik, director of OP No. 2, not only took a plea that the vehicle was not purchased by the complainant but was purchased by M/s. Harmony Associates, which has business of land development and construction of buildings and supported the same by his own affidavit dated 15/6/13. The complainant did not controvert the statements made on oath by the said AshwiniKumar D. Naik nor produced the purchase receipt or the registration certificate of the vehicle to show that the vehicle was purchased not by M/s. Harmony Associates but by himself for his own use or that of his family. Adverse inference, therefore, needs to be drawn against the complainant. On the contrary, the very documents produced by the complainant do not support his case that the vehicle was purchased by him and not by the firm. The receipt dated 28/3/10 is issued by OP No. 3, to the borrower M/s. Harmony Associates for the payment of Rs. 16,200/- and not to the complainant. It is, therefore, safe to presume that in case the loan was taken by M/s. Harmony Associates to purchase the vehicle that the vehicle was purchased not by the complainant but by M/s. Harmony Associates. Likewise, in case the complainant had purchased the vehicle in his own name, the complainant would not have addressed the letter dated 11/05/05 to OP Nos. 1 and 2 in the name of M/s. Harmony Associates, Builders and Developers. These documents support the case of OP Nos. 1 and 2 rather than that of the complainant. They show that the complainant had not purchased the vehicle for his own use or that of his family but was purchased by the firm for the purpose of its business of land development and 7 construction of buildings of which the complainant was only a partner. In other words, the vehicle was purchased not by the complainant but by the firm for its commercial use and as such the complainant cannot qualify to be a consumer within the meaning of Section (2) (1) (d) (i) of the C.P. Act, 1986.
14. This State Commission in FA No. 31/14 in the case of Mr. Sanjay M. Volvoiker by order dated 26/09/14 has held as follows:
"8. Admittedly, before a person approaches a Forum under the C.P. Act, 1986, he has to qualify himself to be a consumer, an expression which has been defined under section 2(d)(i) of the C.P. Act, 1986 and further explained in the explanation below it. A person who buys any goods for resale or for any commercial purpose is not included in the said definition under section (2)(d)(i) of the Act. The explanation further requires that the goods bought and used by him should exclusively be for the purpose of earning his livelihood by means of self employment. In the case of M/s. Cholamandalam DBS Finance Ltd vs. Jogender Singh (supra) it has been stated that unless the 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.
This Commission further held that:
30. Admittedly, the point raised is one of jurisdiction. The Fora under the C. P. Act, commonly known as the Consumer Courts, are meant only for consumers and not to others. It is their one way street, so to say. The facts on record which stare at us clearly suggest that the Complainant had obtained from the OP two separate loans to repair two trucks, and, as stated by the Complainant himself to run the business of transport of manganese and iron ore, and, infact they were given on hire to Timblo Mineral Pvt. Ltd. Both the trucks were 8 not meant to earn Complainant's livelihood by self-employment, and, in any event averment to that effect is lacking in the complaint. The complaint could have been entertained by the Lr. District Forum only in case the complainant was a consumer within the meaning of Section 2(1)(d)(ii) of the C.P. Act, 1986 and not otherwise. As the Complainant had obtained both the loans to repair the trucks not to earn his livelihood by means of self-employment but for a commercial purpose i.e. to earn profits from business of hiring the same to the said Company, the Complainant could not have been said to be a consumer and as such was not entitled to approach the District Forum and the Lr. District Forum could not have entertained his complaint. In other words, this is a case when the complainant took two commercial loans to finance repairs of two trucks to carry on business of transportation of Ore. A commercial activity, indeed! In our view, this is a case where there has been want of inherent jurisdiction in the District Forum to entertain and decide the complaint and therefore any order passed by it, has to be considered as nullity, and, therefore is liable to be set aside. Since the case is one of inherent want of jurisdiction the question of acquiescence or consent from the OP would not arise or can affect the matter. In this regard we may refer to page 144 of Sarkar's Commentary on the Code of Civil Procedure, 1908.
15. In view of the above, the complaint was bound to be dismissed as the complainant was not a consumer and on the contrary the vehicle was not purchased by him but by the firm for the purpose of its business of which the complainant was only a partner. The complainant approached the District Forum with unclean hands and by distorting facts.
16. We therefore proceed to dismiss this appeal with costs of Rs. 2000/- to be paid to OP Nos. 1 and 2, each. The complainant would be free to invoke the jurisdiction of the Civil Court or of any other 9 Forum and seek the reliefs sought for by him and the complainant would also be free to take the benefit of Section 14 of the Limitation Act, as held by the Apex Court in the case of Laxmi Engineering (supra).
[Smt. Vidhya R. Gurav] [Justice Shri N. A. Britto]
Member President
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