State Consumer Disputes Redressal Commission
Murlidhar Sahu vs Manager Bajaj Finance Co.Ltd. & Anr. on 23 March, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2015/643
Instituted on : 26.12.2015
Murlidhar Sahu, S/o Bhan Singh Sahu,
R/o : Village - Biretara, Police Station & Post =-Balod,
Tehsil and District Balod (C.G.) ... Appellant.
Vs.
1. Manager, Branch Office,
Bajaj Finance Company Limited,
Second Floor, Commercial Complex, Nehru Nagar,
Bhilai, Tehsil and District Durg (C.G.)
2. Zonal Manager,
Bajaj Finance Company Limited,
6th Floor, No.609 to 611,
D.B.C.T. Building, Near Dental College,
Rajbandha Maidan,
Raipur (C.G.) ...Respondents
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, for the appellant.
Shri Brijesh Mishra & Shri Sanjay Tiwari, for the respondents.
ORDER
Dated : 23/03/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 31.10.2015, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth called "District Forum") in Complaint Case // 2 // No.C.C./2015/80. By the impugned order, the District Forum, has dismissed the complaint of the appellant (complainant).
2. Briefly stated, the facts of the complaint of the appellant (complainant) are that the appellant (complainant) is permanent resident of Village Biretara, District Balod (C.G.) and is doing work of transporting through JCB in Village Biretara. The J.C.B. bearing registration No.C.G./NA/7165 was financed by the respondents (OPs) on 22.05.2012. The finance amount was Rs.19,26,923/- which was payable in 34 installments from June 2012 to February, 2015. The appellant (complainant) deposited a sum of Rs.68,406/- with the respondents (OPs) towards advance installement. Till 10.11.2014 on various dates the appellant (complainant ) paid total amount of Rs.21,20,,586/-. He also deposited filing/processing charges Rs.5,500/-, overdue amount Rs.6,838/- and cheque bouncing charge Rs.12,822/-. Thus, he paid total amount of Rs.21,45,774/-. The respondents (OPs) without giving any information and intimation to the appellant (complainant) seized the JCB and the respondents (OPs) committed deficiency in service. The appellant (complainant) was depositing the instalments of Rs.68,406/- regularly and by mistake he could not deposit the instalments on 17.08.2013, 13.10.2014 and in the month of November, 2014. The respondents (OPs) sent notice to the appellant (complainant) under Section 138 of Negotiable Instrument Act , 1881 on 17.03.2013 and 13.10.2014. In the meantime, the // 3 // appellant (complainant) deposited the instalments of 8th, 10th and 11th month along with interest to the tune of Rs.3,00,000/- on 10.11.2014 with the respondents (OPs) in cash. The officers and employees of the respondents (OPs) seized the JCB of the appellant (complainant) on 21.10.2014. The JCB of the appellant (complainant) was standing in the yard of the respondents (OPs) since about two months, due to which he was suffering loss of Rs.3,00,000/- per months. In this connection, the appellant (complainant) sent notice on 30.12.2014 to respondents (OPs) but even then the respondents (OPs) did not give reply of the notice and did not return back the vehicle. The above act of the respondents (OPs) comes in the category of deficiency in service. Hence, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The respondents (OPs) filed their joint written statement and averred that various complaints have been filed by the respondents (OPs) in various complaint court against the appellant (complainant) for due amount under agreement and with a view to illegal protection, present complaint has been filed by the appellant (complainant) wrongly. Therefore, the respondents (OPs) have not committed any deficiency in service. The appellant (complainant) has filed present complaint with ill intention to frustrate previous pending criminal complaints. Only on this ground it is obvious that complaint is false // 4 // and deserves to be dismissed. The JCB-3DX/BACKHOE LOADER is used for commercial purpose, the appellant (complainant) is not using the JCB-3DX/BACKHOE LOADER exclusively for the purpose of earning his livelihood, but it is for commercial purpose, the appellant (complainant) is not consumer as per Section 2(1)(d) of the Consumer Protection Act, 1986 and only on this ground the complaint is not maintainable and also this Court does not have any jurisdiction to try and entertain this matter. The appellant (complainant) had approached and applied for a Construction Finance Equipment Loan facility for the purchase of JCB-3DX/BACKHOE LOADER having the Engine No.H00026171 for the transportation purposes by loan facility vide the Loan proposal NO.4540CE00018245 on 22.05.2012 and availed finance of Rs.19,26,923/- vide Facility Cum Hypothecation Agreement dated 19.05.2012. The equated monthly instalment to be paid per month is Rs.68,406/- and the contract period is of 34 months. The appellant (complainant) towards payment of loan instalment dues has issued Post dated cheques (PDC's). The appellant (complainant) is a chronic defaulter, non-starter as the PDC's issued by the appellant (complainant) towards loan instalment on 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 have got dishonoured for the reason inter alia "Insufficient Funds". On making a due, the commercial machinery was being seized by the respondents (OPs) and an intimation was being made to Police by the respondents (OPs) if the appellant // 5 // (complainant) alleges the property to be stolen. As such as on date an amount of Rs.2,28,981/- [i.e. Rs.1,97,521/- towards instalments dues (besides penal charges) and Rs.31,460/- towards the repossession charges] is due from the appellant (complainant). The constant reminders and phone calls were being made by the respondents (OPs) regarding the payment of the outstanding amount which is again the rules and regulations of the respondents (OPs), but according to paragraph 7 (vi) of the Loan Agreement, it is stated that if the borrower is not making payment to the respondents (OPs) on demand in respect of the finance facilities or interest or other monies from time to time. The appellant (complainant) is not a consumer under Section 2(1) (d) of the Consumer Protection Act, 1986. The complaint may be dismissed.
4. The appellant (complainant) filed documents. Annexure 1 is Police Hastashep - Ayogya Apradh Ki Suchna, Annexure 2 is Repossession Inventory List, Annexure 3 is Registration Certificate Details of vehicle bearing Registration No.C.G.-07-NA-7165, Annexure 4 is Certificate of Registration of vehicle bearing registration No.C.G.07-NA-7165, Annexure 5 is Certificate of Fitness of vehicle bearing registration No.C.G.07-NA-7165, Annexure 6 is Interest Certificate dated 21.09.2012 issued by Bajaj Finance Limited, Annexure 7 is Form No.21 Sale Certificate, Form No.22, Tax Invoice etc., Annexure 8 is registered notice dated 30.12.2014 sent by Shri Shailesh Kumar Shrivastava, // 6 // Advocate on behalf of the appellant (complainant) to the Zonal Manager, Bajaj Finance Ltd. Raipur (C.G.), Annexure 9 is postal receipt, Annexure 10 is Account Statement from 09.01.2000 to 09.01.2015, Annexure 11 is Payment Receipt - Customer Copy issued by Bajaj Finance Ltd., Annexure 12 is Statement regarding instalments dated 10.11.2014, Annexure 13 is photocopy of envelope.
5. The respondents (OPs) have filed documents. Document Ex.D-1 is Loan Application Form, Ex.D-2 is Customer Undertaking Format, Ex.D-3 is Loan Agreement, Ex.D-4 is Statement of Account, Ex.D-5 is Repossession Inventory List, Ex.D-6 is letter dated 21.10.2014 sent by Bajaj Finance Ltd. to Bajaj Finance Ltd. Pune, Ex.D-7 is Repossession Bill dated 27.10.2014 issued by HSR Agency and Repossession Inventory List, Ex.D-8 is application under Section 138 of Negotiable Instrument Act, 1881 filed by the Bajaj Finance Ltd. against the respondent (complainant) before Judicial Magistrate First Class, Raipur (C.G.), Annexure D-9 is cheque no.002386 dated 15.12.2013 for Rs.68,406/-, Annexure D-10 is Return Memo, Annexure D-11 is acknowledgement, Annexure D-12 is registered notice dated 02.01.2014 sent by Shri Sushil Kumar Tiwari, Advocate to the appellant (complainant), Ex.D-13 is application under Section 138 of Negotiable Instrument Act, 1881 filed by the Bajaj Finance Ltd. against the respondent (complainant) before Judicial Magistrate First Class, Raipur (C.G.), Annexure D-14 is affidavit of Saroj Kumar Sharma, // 7 // Annexure D-15 is letter dated 18.06.2014 sent to CMC CC, Annexure D-16 is cheque no.002392 dated 15.06.2014, Annexure D-17 is registered notice dated 17.03.2013 sent by Shri Sushil Kumar Tiwari, Advocate to the appellant (complainant), Annexure D-18 is Track Result for RC1110567851N, Annexure D-19 is application under Section 138 of Negotiable Instrument Act, 1881 filed by the Bajaj Finance Ltd. against the respondent (complainant) before Judicial Magistrate First Class, Balod (C.G.), Annexure D-20 is Return Memo, Annexure D-21 is cheuqe no.002400 dated 15.02.2015, Annexure D-22 is registered notice dated 05.03.2015 sent by Shri Sushil Kumar Tiwari, Advocate to the appellant (complainant), Annexure D-23 is acknowledgement, Annexure D-24 is application under Section 138 of Negotiable Instrument Act, 1881 filed by the Bajaj Finance Ltd. against the respondent (complainant) before Judicial Magistrate First Class, Balod (C.G.), Annexure D-25 is Return Memo Cheuqe ReturnDated 17.09.2014, Annexure D-26 is cheque No.002395 for Rs.68,406/-, Annexure D-27 is registered notice dated 14.10.2014 sent by Shri Sushil Kumar Tiwari, Advocate to the appellant (complainant), Annexure D-28 is acknowledgement, Annexure D-29 is application under Section 138 of Negotiable Instrument Act, 1881 filed by the Bajaj Finance Ltd. against the respondent (complainant) before Judicial Magistrate First Class, Balod (C.G.), Annexure D-30 is Return Memo Cheque Return Date 17.01.2015, Annexure D--31 is cheque No.002399 // 8 // dated 15.01.2015, Annexure D-32 is registered notice dated 11.02.2015 sent by Shri Sushil Kumar Tiwari, Advocate to the appellant (complainant), Annexure D-33 is Return Memo Cheque Return Date 17.10.2014, Annexure D-34 is cheque no.002396 dated 15.10.2014, Annexure D-35 is registered notice dated 08.11.2014 sent by Shri Sushil Kumar Tiwari, Advocate to the appellant (complainant), Annexure D- 36 is acknowledgement, Annexure D-37 is Return Memo Cheque Return Date 15.04.2014, Annexure D-38 is Cheque No.002390 dated 15.04.2014, Annexure D-39 is registered notice dated 30.04.2014 sent by Shri Sushil Kumar Tiwari, Advocate to the appellant (complainant).
6. Shri R.K. Bhawnani, learned counsel appearing for the appellant (complainant) has argued that the impugned order passed by the District Forum is illegal and is not sustainable in eye of law. The appellant (complainant) paid the instalments regularly and he deposited a sum of Rs.21,45,774/- with the respondents (OPs) instead of Rs.19,26,923/-. It appears that the appellant (complainant) has already paid excess amount to the tune of Rs.2,28,981/-, but learned District Forum did not consider the above facts. The JCB was not purchased by the appellant (complainant) for commercial purpose. The JCB was repossessed by the respondents (OPs) without giving notice to the appellant (complainant) and the JCB was repossessed by the respondents (OPs) forcibly and illegally, therefore, the impugned order passed by the District Forum, is liable to be set aside. He placed // 9 // reliance on Citicorp Maruti Finance Ltd. v. S. Vijayalaxmi, AIR 2012 Supreme Court 509.
7. Shri Brijesh Mishra and Shri Sanjay Tiwari, learned counsel appearing for the respondents (OPs) have argued that the appellant (complainant) himself pleaded in his complaint that he purchased the JCB for transporting work and the appellant (complainant) is engaged in business of transporting. It appears that the JCB was purchased by the appellant (complainant) for commercial purpose, therefore, the dispute between the parties is not a 'consumer dispute' and the appellant (complainant) does not come within purview of 'consumer'. They further argued that the JCB was repossessed by the respondents (OPs) after giving notice to the appellant (complainant). The appellant (complainant) issued cheques in favour of the respondents (OPs) and near about five cheques issued by the appellant (complainant) in favour of the respondents (OPs) were dishonoured and several criminal complaints under Section 138 of Negotiable Instrument Act, 1881 were filed by the respondents (OPs) against the appellant (complainant) and appellant (complainant) regularly defaulted in depositing the instalments, therefore, the respondents (OPs) repossessed the JCB from the appellant (complainant. Learned District Forum has rightly came to the conclusion that the appellant (complainant) did not deposit the instalments regularly and cheques issued by him in favour of the respondents (OPs) were dishonoured, // 10 // therefore, the respondents (OPs) did not commit any deficiency in service and professional misconduct. The impugned order passed by the District Forum, does not call for any interference by this Commission.
8. We have heard learned counsel for the parties and have also perused the record of the District Forum.
9. Firstly we shall consider whether the appellant (complainant) is a consumer ?
10. The appellant (complainant) pleaded in para 3 of his complaint that he purchased the JCB with the financial help of the respondents (OPs) for transporting work and he is doing transporting work through JCB.
11. In Birla Technologies Limited v. Neutral Glass and Allied Industries Limited, (2011) 1 Supreme Court Cases 525, Hon'ble Supreme Court has observed thus :-
"7. By its order dated 4.3.2004, the State Commission accepted the appellant's preliminary objection and dismissed the complaint. The respondent complainant, therefore filed First Appeal No.218 of 2004 before the National Commission. By its order dated 17.12.2009, which is impugned here, the National Commission reversed the order of the State Commission and held that the "goods" purchased by the respondent from the appellant were being used by the respondent for a commercial purpose and, therefore, the respondent was not a "consumer" within the meaning of Section 2(1)(d)(i) of the Act.
// 11 // However, the National Commission further held that notwithstanding such findings, the respondent was entitled to maintain a complaint under the Act with respect to the deficiency in service during one-year warranty period with respect to the said goods relying on Section 2(1)(d)(ii) of the Act.
10. Shri Siddharth Bhatnagar, learned counsel appearing on behalf of the respondent could not dispute this proposition and fairly accepted that the complaint was in fact filed on 26-6-2003 i.e. much after the amendment to Section 2(1)(ii), by which the following words were added :
"but does not include a person who avails of such services for any commercial purpose".
11. In view of the findings of the National Commission that the goods sold by the appellant to the respondent complainant amounted to "goods" and that such goods were purchased for commercial purpose for earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary.
12. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15-3-2003 by way of the amendment by the same Amendment Act, as it is nobody's case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent's livelihood // 12 // by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto."
12. In Rajeev Metal Works and Others v. Mineral & Metal Trading Corporation of India Ltd., (1996) 9 Supreme Court Cases 422, Hon'ble Supreme Court has observed thus :-
"6. Having given our anxious and very careful consideration to the respective contentions, the question emerges whether the appellant firm is a consumer. The word 'consumer' has been defined under Section 2(1)(d)(i) and (ii) thus :
"(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 obtain 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 or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person."
// 13 //
7. Clause (i) provides that one who 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 promise, 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, is a consumer. The admitted case is that this does not apply. The question, therefore, is whether the service of the respondent availed by the appellants is covered under Section 2(1)(d)(ii)? Whether the transaction in the nature of buying the goods for a consideration which has been paid or promised? Whether the transaction in question excludes the person who obtains such goods for resale or for any commercial purpose from the purview of the Act? It is true as contended for the appellants that the definition requires to be interpreted broadly so as to give effect to the legislative intention envisaged under the Act. But when the legislature having defined the term 'consumer' in broader terms, sought to exclude certain transactions from the purview of the Act what could be the meaning that would be assigned to the exclusionary clause, viz., "but does not include a person who obtains such goods for resale or for any commercial purpose". The intention appears to be that when the goods are exchanged between a buyer and the seller for commercial purpose or for resale, the object of the Act appears to be to exclude such commercial transactions from the purview of the Act. Instead, legislature intended to confine the redressal to the services contracted or undertaken between the seller and the 'consumer' defined under the Act. It is seen that the appellants admittedly entered their letters of credit with the respondent. The respondent is a statutory authority to act as canalised agency on behalf of the industries to procure required goods on their behalf from the foreign seller and acts in that behalf in // 14 // terms of the letter of credit and conditions enumerated thereunder. It is seen that the respondent did not undertake any direct responsibility for supply or liability for non-supply of the goods. On the other hand, the appellants had solicited to have the goods supplied to it through the respondent and opened letter of credit in favour of the respondent. After collecting requirement from various industries in the country admittedly a consolidated demand for supply of the required quantity of the G.P. Sheets was indented with foreign sellers so as to procure the required goods for onward supply to the appellant and others. The goods supplied were required for commercial purpose, i.e., for manufacture and resale as finished goods during the course of their commercial business. Under the circumstances, the appellants intended to purchase these goods for commercial purpose, namely to manufacture the tin sheets for resale. It is true that the word 'resale' used in the exclusionary clause of Section 2(1)(d) (i) was used in connection with the purchase of goods defined in the Sale of Goods Act for commercial purpose The ultimate object of the supply of the goods, namely, G.P. sheets to the appellants was manufacture of finished goods for resale. The goods were intended to be used for commercial purpose. Thus, considered, we are of the opinion that the appellants are not consumers by virtue of the exclusionary clause under Section 2(1)(d)(ii). Therefore, they would not come under Section 2(1)(d)(ii) of the Act. Since the object of the supply and purchase of the goods was commercial purpose, it would certainly come within the exclusionary clause of Section 2(1)(d)(ii). Otherwise, if the construction sought to be put up by Mr. Sanghi is given effect to, while foreign sellers are not liable under the Act within the definition of Section 2(1)(d) as they get excluded from the purview of the Act, the canalising agency would be fastened with the liability. Thereby, the definition of the word 'consumer' under Section 2(1)(d)(ii) is not attracted.
// 15 //
8. Consequentially, clause (ii) of Section 2(1)(d) does not apply. Considered from this perspective, we are of the opinion that the appellants are not consumer under Section 2(1)(d)(ii) of the Act. Thereby the complaint would not lie under Section 21 of the Act."
13. In JCB India Ltd. Vs. Mallappa Sangappa Mantri & Anr., IV (2012) CPJ 220 (NC)., Hon'ble National Commission has observed thus :-
"6. We have no manner of doubt in holding that the aforesaid observations of the State Commission based on which the impugned order was passed were not only contrary to the facts on record but against the settled law in this regard and hence the impugned order cannot be sustained. The reliance of the State Commission on the decision rendered by the National Commission in the case of Dr. Vijay Prakash Goyal v. The Network Ltd., IV (2005) CPJ 206 (NC) = 2006 (1) CPR 164 (NC), is ill-placed since the present dispute has arisen after the amendment of Section 2(1)(d)(i) containing definition of a consumer w.e.f. 15.3.2003. Keeping in view the admitted position emanating from the complaint itself and other aspects of this case, we are convinced that the machine was being used by the complainant for earning profits and hence for commercial purposes by employing a number of people and we do not find any denial to these facts buy the complainant anywhere on record. In the circumstances, as already held by this Commission in the cases cited by the Counsel, we are of the considered view that when a customer buys goods for commercial purposes and avails of services attached to the goods in the nature of warranty, he cannot be considered to be consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(1)(d)(i) of the Act which came into force w.e.f. 15.3.2003. In view of this, the complainant / respondent No.1 cannot be held to be a // 16 // consumer and hence the complaint in question is not maintainable before any Consumer Forum. Consequently, the revision petition stands allowed and the impugned order is set aside and complaint is dismissed with no order as to costs. Liberty, however, is granted to the respondent No.1/complainant to approach appropriate Forum for redressal of his grievance and in case he chooses to do so, he can claim the benefit of Section 14 of the Limitation for the time spent before the Consumer Fora in accordance with the ruling given by the Apex Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute, (1995) 3 SCC 583."
14. In Kishore Ramchandra Bhide v. Habibat India Agro Development Pvt. Ltd. & Ors., IV (2012) CPJ 706 (NC), Hon'ble National Commission, has observed thus :-
"7. The Supreme Court has discussed the term 'consumer' in the celebrated authority reported in Laxmi Engineering Works v PSG Industrial Institute, II (1995) CPJ 1 (SC) = 1995 3 SCC 583, wherein it was held :
"The National Commission appears to have been taken a consistent view that where a person purchases goods 'with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit', he will not be a 'consumer' within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion - the expression 'large scale' is not a very precise expression - Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression 'commercial purpose' - a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a // 17 // 'consumer' but a person who buys a typewriter or a car for typing others' work, for consideration or for plying the car as a 'taxi', can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for 'commercial purpose' would not yet take the purchaser out of the definition of expression of expression 'consumer'. 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 is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, , he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self-employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a 'commercial purpose', to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., 'uses them by himself 'exclusively for the purpose of earning his livelihood ' and 'by means of self-employment' make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist / help him in operating the vehicle or machinery, he does not cease to be consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine // 18 // to be plied or operated exclusively by another person, would not be a consumer".
A person cannot be said to be consumer if he purchases the second house."
15. In Biilagi Sugar Mill Ltd. v. Kessels Engineering Works (P) Ltd., II (2010) CPJ 242 (NC)., Hon'ble National Commission has observed thus :-
"3. From the facts narrated in the complaint, it is clear that the Turbine (T.G. Set) in question had been purchased by the complainant for commercial purpose and, purchase for commercial purpose is excluded under Section 2(1)(d)(i) of the C.P. Act. Likewise, the services of the warranty for commercial purpose are also excluded for commercial purpose under Section 2(1)(d)(ii) w.e.f. 15.3.2003. A Division Bench of this Commission to which one of us (R.K. Batta, J) was a party has after scrutiny of a large number of judgments, which actually pertain to the pre-amendment period i.e. before 15.3.2003, in Meera Industries v. Modern Constructions, R.P. No.1765 of 2007 decided on 22.5.2009, wherein it was held :
"In view of the above, we are of the opinion that whether a customer buys goods for commercial purpose and avails of services attached to the goods in the nature of warranty, he cannot be considered to be a consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(d)(ii) of the Act, which came into force w.e.f. 15.3.2003. In view of this, the complainant cannot be held to be a consumer with reference to the services attached to the warranty and the complaint is not maintainable".
// 19 //
16. In M/s Rohit Chemical & Allied Industries Pvt. Ltd. National Research Development Corporation, IV (2013) CPJ 87 (NC), Hon'ble National Commission has observed thus :
"22. In Laxmi Engineering Works v. P.S.G. Industrial Institute, AIR 1995 SC 1428, it was held :-
"12. Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression 'resale' is clear enough. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. 'Commercial' denotes "pertaining to commerce" (Chamber's Twentieth Century); it means "connected with, or engaged in commerce; mercantile; having profit as the main aim" (Collins English Dictionary) whereas the word 'commerce' means "financial transactions especially buying and selling of merchandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taken a consistent view that where a person purchases goods 'with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit', he will not be a 'consumer' within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion - the expression 'large scale' is not a very precise expression - Parliament stepped in and added the explanation // 20 // to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression 'commercial purpose' - a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a 'consumer' but a person who buys a typewriter or a car for typing others' work, for consideration or for plying the car as a 'taxi', can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for 'commercial purpose' would not yet take the purchaser out of the definition of expression of expression 'consumer'. 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 is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, , he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self- employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a 'commercial purpose', to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., 'uses them by himself ', 'exclusively for the purpose of earning his livelihood ' and 'by means of self-employment' make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for // 21 // earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist / help him in operating the vehicle or machinery, he does not cease to be consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer. This is necessary limitation flowing from the expressions "used by him" and "by means of self-employment in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words".
17. On the basis of above facts, it appears that the appellant (complainant) purchased the JCB for transporting work i.e. commercial purpose. The appellant (complainant) has not purchased the JCB for personal use or livelihood, but it was purchased for the commercial purpose, therefore, the appellant (complainant) does not come within the purview of "consumer" as defined in Section 2(1)(d) of the Consumer Protection Act, 1986
18. Now we shall consider whether the respondents (OPs) repossessed the JCB forcibly without following the proper procedure ?
19. The appellant (complainant) pleaded in para 5 of his complaint that he deposited a sum of Rs.21,45,774/-with the respondents (OPs) and gave particulars of the amount deposited by him. In para 6 of the complaint, the appellant (complainant) further pleaded that by mistake on 17.08.2013, 13.10.2014 and in the month of November, 2014 the instalments were not paid by him. It appears that the appellant // 22 // (complainant) himself that near about 3 installments were not deposited by him with the respondents (OPs).
20. The respondents (OPs) filed copies of Criminal Complaint filed by the respondents (OPs) before the concerned Judicial Magistrate First Class. Annexure D-8 is copy of complaint filed by the respondents (OPs) relating to cheque No.002386 against the appellant (complainant) for offence under Section 138 of Negotiable Instruments Act, 1881, Annexure D-13 is copy of copy of complaint filed by the respondents (OPs) relating to cheque No.002392 against the appellant (complainant) for offence under Section 138 of Negotiable Instruments Act, 1981, Annexure D-19 is copy of complaint filed by the respondents(OPs) relating to cheque No.002400 against the appellant (complainant) for offence under Section 138 of Negotiable Instruments Act, 1881, Annexure D-24 is copy of complaint filed by the respondents (OPs) relating to cheque No.002395 against the appellant (complainant) for offence under Section 138 of Negotiable Instruments Act, 1881, Annexure D-29 is copy of complaint filed by the respondents (OPs) relating to cheque no.002399 against the appellant (complainant) for offence under Section 138 of Negotiable Instruments Act, 1881. It appears that about 5 cheque, which were issued by the appellant (complainant) in favour of the respondents (OPs) were dishonoured and the respondents (OPs) filed near about 5 Criminal Complaint against the appellant (complainant) for offence under Section 138 of // 23 // Negotiable Instrument Act, 1881. Out of these five complaint cases, 3 complaint cases were filed by the respondents (OPs) before Judicial Magistrate First Class, Balod (C.G.) and 2 complaint cases were filed before Judicial Magistrate First Class, Raipur (C.G.) against the appellant (complainant). It appears that the appellant (complainant) had continuously defaulted in making payment of the instalments.
21. The appellant (complainant) filed document Annexure - 2 which is Inventory List for Repossession and the same document has also been filed by the respondents (OPs). The respondents (OPs) have also filed document Ex. D-6 which is a letter dated 21.10.2014 sent by the respondents (OPs) to the concerned Police Station regarding intimation of repossession of the JCB. The appellant (complainant) has filed document Annexure 1, which is information given by the appellant (complainant) under Section 155 Cr.PC to the Police Station, Balod for non cognizable offence. It appears that before repossession of the JCB, the respondents (OPs) sent intimation to the concerned Police Station and thereafter, the repossessed the JCB and inventory was prepared. After near about 2 months of the repossession of the JCB, the appellant (complainant) made complaint before Police Station, Balod regarding repossession of the JCB.
22. Looking to the facts and circumstances of the case, it appears that the JCB was repossessed by the respondents (OPs) and intimation was also given to the appellant (complainant) as well as to the // 24 // concerned Police Station. Prior to repossession of the JCB, the appellant (complainant) could not pay the amount due, therefore the respondents (OPs) were having a right to repossess the JCB due to non-payment of the instalments. The appellant (complainant) has utterly failed to prove that the JCB in question was forcibly and illegally repossessed by the respondents (OPs).
23. For the foregoing reasons, in our opinion the impugned order dated 31.10.2015, passed by the District Forum, is reasonable and does not suffer from any infirmity or illegality.
24. Hence, the appeal filed by the appellant (complainant) being devoid of any merits deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 23/03/2016 23 /03/2016 23/03/2016 23/03/2016