State Consumer Disputes Redressal Commission
Shri.Chhatrapati Rajashri Shahu Urban ... vs Suryakant Sambhaji Karad, on 16 March, 2011
1 F.A.No.:1412 & 1413/2006
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing :31.07.2006
Date of order :16.03.2011
FIRST APPEAL NO. :1412 OF 2006
IN COMPLAINT CASE NO.:69 OF 2006
DISTRICT CONSUMER FORUM :BEED.
1. The Manager,
Shri.Chhatrapati Rajashri Shahu Urban Co.op.Bank Ltd., Beed.
2. The Manager,
Shri.Chhatrapati Rajashri Shahu Urban
Co.op.Bank Ltd., Beed, Court Road,
Branch Majalgaon, Tq.Majalgaon,
Dist.Beed. ...APPELLANTS
(Org.Opp.No.2 & 3)
VERSUS
1. Suryakant Sambhaji Karad,
R/o Shahunagar, Majalgaon,
Dist.Beed.
2. Vilas Bhanudas Bhosale,
R/o Shahunagar, Beed. ...RESPONDENTS
(No.1-Org.Complainant,
No.2-Org.Opp.No.1)
Date of filing :31.07.2006
Date of order :16.06.2011
FIRST APPEAL NO. :1413 OF 2006
IN COMPLAINT CASE NO.:70 OF 2006
DISTRICT CONSUMER FORUM :BEED.
1. The Manager,
Shri.Chhatrapati Rajashri Shahu Urban
Co.op.Bank Ltd., Beed.
2. The Manager,
Shri.Chhatrapati Rajashri Shahu Urban
Co.op.Bank Ltd., Beed, Court Road,
Branch Majalgaon, Tq.Majalgaon,
Dist.Beed. ...APPELLANTS
(Org.Opp.No.2 & 3)
VERSUS
1. Suryakant Sambhaji Karad,
R/o Shahunagar, Majalgaon,
Dist.Beed.
2 F.A.No.:1412 & 1413/2006
2. Shriniwas Bhanudas Bhosale,
R/o Shahunagar, Beed. ...RESPONDENTS
(No.1-Org.Complainant,
No.2-Org.Opp.No.1)
CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
Mrs.Uma S.Bora, Hon`ble Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.S.N.Tandale for appellants, Adv.Smt. Smita Medhekar for respondent No.1, Adv.Shri.L.Y.Kulkarni for respondent No.2.
O R A L O R D E R Per Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
1. These two appeals have been filed by original opponent No.2 & 3 Manager, Chhatrapati Shahu Urban Co.Op.Bank Ltd., Beed and Majalgaon Branch against the two separate judgments and orders dated 16.06.2006 in complaint case No.69/04 and 70/04 respectively passed by District Consumer Forum, Beed. As the common question of law arises in both these two appeals and complainant in both the cases are same. We proposed to decide these two appeals by one common judgment.
2. Respondent No.1/Org.Complainants` case before the Forum is that, he agreed to purchase luxury buses bearing No.MH-18A-7593 and MH-18-7793 from Vilas Bhosale and Shriniwas Bhosle for Rs.9,50,000/- and Rs.10,00,000/- respectively. It is alleged that he was to pay an amount of Rs.4,00,000/- on the date of sale deed and was to repay the loan of Vilas Bhosle and Shriniwas Bhosle raised by them from appellant No.1`s bank. Loan of Vilas Bhosle was to the tune of Rs.5,50,000/- whereas the loan of Shriniwas was to the tune of Rs.6,00,000/-. It is alleged that accordingly they executed deeds on 11.12.2002 and 6.12.2002 styled as sale deeds respectively. It is also alleged that tax upto the date of respective deed was to be paid by original owner and tax after date of deed was to be paid by complainant. It is alleged that after making payment of loan to the appellant No.1 raised by Vilas and Shriniwas they were to transfer the 3 F.A.No.:1412 & 1413/2006 respective vehicles in the name of complainant. It is alleged that though it is mentioned in the sale deeds that possession of the vehicle was given to complainant, in fact possession was not delivered. Complainant insisted for transferring the vehicles in his name and giving possession of the same. It is alleged that appellant No.1 by letter dated 20.1.2003 informed RTO that entire loan amount has been paid by complainant and his vehicles which were seized were not in use for the period 5.10.1999 to 27.1.2003. He requested for issuing non-use certificate for the said period. It is alleged that Vilas and Shriniwas did not transfer the vehicles in the name of complainant and not handed over the possession of the same. It is alleged that complainant has purchased the vehicles for running his business. He sustained loss as these vehicles were not transferred in his name and possession was not given. Thus he approached the Forum for refund of consideration and also for the compensation for the loss caused to him for non-handing over he possession of the vehicles.
3. Present appellants as well as respondent Vilas and Shriniwas appeared before the Forum and resisted the claim. Present appellants mentioned that they are not aware about the transaction in between the complainant and Vilas & Shriniwas. Appellant as well as vendor denied the contention that possession was not handed over and it is wrongly mentioned in the sale deed. It is contended that they had issued letter dated 27.1.2003 to vendor for taking the vehicles in his possession. It is also contended that they had given letter to R.T.O. for transferring the vehicle in the name of complainant. They contended that for settlement of dispute the relationship of consumer must exist between them and complainant which is lacking in the instant case. It is also contended that luxury buses are purchased by complainant for commercial use and court is not competent to try the petitions.
4 F.A.No.:1412 & 1413/20064. The Forum below after going through the papers and hearing the parties allowed both the complaints and directed appellant as well as respondent No.2 in C.C.No.69/2005 to pay amount of Rs.9,50,000/- & Rs.25,000/- towards mental agony and Rs.5000/- towards cost and in C.C.No.70/04 to pay amount of Rs.10,00,000/- & Rs.25,000/- towards mental agony and Rs.5000/- towards cost.
5. Being aggrieved by the said judgment and order passed by the District Forum, Beed, Chhatrapati Shahu Urban Co.Op.Bank came in appeal.
6. Notices were issued to the appellants as well as respondents in both the appeals. Learned counsel Shri.S.N.Tandale appeared on behalf of appellants in both the appeals and learned counsel Smt.Smita Medhekar appeared on behalf of respondent No.1/complainant and learned counsel Shri.L.V.Kulkarni appeared on behalf of respondent No.2 vendor in the both the appeals. We heard them at sufficient length. Learned counsel Shri.Tandale for the appellants submitted that judgment and order passed by Forum is against principle of law and canons. According to him Forum wrongly held that complainant is consumer as luxury buses were purchased for commercial purpose by the complainant. Learned counsel further submitted that Forum erred in appreciating the documentary evidence placed on record. He submitted that appellants are unknown about the transaction between complainant and vendors. Hence complaint is not maintainable against them. Learned counsel further submitted that complainant has no locus standi to file the complaints. Learned counsel further submitted if there is any contract between complainant and owners of the vehicle, complainant ought to have knocked the door of Civil Court.
7. Learned counsel Shri.Kulkarni for respondent No.2 vendor submitted that Forum wrongly held that complainant is consumer as 5 F.A.No.:1412 & 1413/2006 the luxury buses have been purchased by complainant for commercial purpose. According to him there is nothing on record to show that both the buses were purchased by complainant for his livelihood by means of self employment. Learned counsel submitted that when purchase is made for commercial purpose provisions of Consumer Protection Act cannot be made applicable. The buses have been purchased for running business for carrying passengers from Majalgaon to Pune. Learned counsel in that respect relied on ' Birla Technologies Ltd. -Vs- Neutral Glass and Allied Industries Ltd.' reported in I(2011) CPJ 1 (SC). He also relied on 'N.Akmalkhan -Vs- Hindustan Motors Ltd. & Ors' reported in It is contended that(2004) CPJ 612 Tamilnadu State Commission and 'Cholamandalam DBS Finance Ltd. -Vs- Jogender Singh' reported in I(2011) CPJ 225.
8. On the other hand, learned counsel Smt.Medhekar submitted that Forum has rightly held that complainant is 'consumer'. She submitted that complainant has mentioned that he purchased vehicles for his business and he is having no other business. He sustained loss due to non-delivery and non-transfer of vehicle in his name by owner i.e. respondent No.2. According to learned counsel complainant is running business for earning his livelihood.
9. We perused the papers and gave our anxious thoughts to the arguments advanced by counsels and citations relied by them. There is no dispute that complainant purchased two luxury buses one from Vilas and another from Shriniwas for running his business. It has come on record that he wanted to run business by using those for carrying passengers from Majalgaon to Pune. There is also no dispute that both the complaints have been filed in the year 2006 i.e. after amendment in Section 2(1)(d)(ii) of Consumer Protection Act by the Amended Act 2002. Amendment in question came on 15.3.2003. Question to be considered which goes to the root of the case is 6 F.A.No.:1412 & 1413/2006 whether complainant comes in the category of consumer as defined U/s 2(1)(d) of Consumer Protection Act 1986.
10. The definition of 'consumer' U/s 2(1)(d) of Consumer Protection Act runs as ;
(d) 'consumer' means any person who;
(i) buys any goods for a consideration which has been paid or 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.
11. It is apparent from the definition of consumer that the consumer includes person, who buys any goods or hires or avails any services for consideration, but does not include a person, who buys any goods or hires or avails of any services for commercial purpose.
7 F.A.No.:1412 & 1413/2006As per explanation, unless the goods were purchased or services were availed by a person exclusively for the purpose of earning his livelihood by means of self-employment, such purchase or availment of service will be for commercial purpose. Consumer does not include a person who buys the goods for any commercial purpose or who avails the services of any description for any commercial purpose but no satisfactorily explanation is offered.
12. In the instant case, complainant has purchased two luxury buses for running his business. He wanted to run the buses to carry passengers from Majalgaon to Pune. According to complainant he lost the net income of Rs.30,000/- per month for each bus which he would have got if buses would have been transferred in his name and would have been handed over to him. Complainant nowhere mentioned in the complaint that he purchased buses exclusively for the purpose of earning his livelihood by means of self-employment. There is no even whisper in the entire complaint that the buses have been purchased for earning livelihood. Complainant has not said anything about the nature and extent of his business, whether it is large scale, commercial venture or an attempt in self-employment to earn livelihood.
On the other hand, appellant and respondent No.2 have stated that for the settlement of dispute, the relationship of consumer must exists. The relation of this kind between them is lacking and the court has no jurisdiction. They have specifically mentioned that luxury buses are purchased for commercial purpose and hence this court is not competent to try the complaints. We have mentioned that complainant has not stated anything about the nature and extent of his business. Even he did not deny that he purchased luxury buses for commercial purpose. Burden was on the complainant. Complainant does not answer the description of expression of 'consumer' as defined in Section 2(1)(d) of Consumer Protection Act.
8 F.A.No.:1412 & 1413/2006As per evidence adduced before the Forum buses have been purchased for commercial purpose. Complainant cannot at all be construed as 'consumer' within the definition of Section 2(1)(d) of Consumer Protection Act. Complainant does not fit himself in the definition of 'consumer' as envisaged in the Consumer Protection Act. The Forum below has not appreciated the position of law with respect of definition of consumer U/s 2(1)(d) of Consumer Protection Act. We have no hesitation to hold that complainant is not consumer and thus both the complaints are not maintainable. As the basic requirement for filing complaints before the Dist.Fora is missing that the complainant is consumer the jurisdiction of Fora is ousted and hence there is no point in considering the question whether there is any deficiency on the part of appellant and respondent No.2. Accordingly, we are inclined to allow both the appeals and set aside judgment and order passed by the Forum. We pass the following order.
O R D E R
1. Both the appeals No.1412/06 & 1413/06 are allowed.
2. The impugned judgments and orders passed by the Forum are hereby quashed and set aside and both the complaints are dismissed. However complainant shall be liberty to avail any other remedy that may be available to him under any other law and to claim the benefit U/s 14 of Limitation Act to exclude the period spent in the proceeding under the Act while computing the period of limitation prescribed for.
3. No order as to cost.
4. Copies of the judgment be issued to both the parties.
K.B.Gawali, Mrs.Uma S.Bora S.G.Deshmukh
Member Member Presiding Judicial Member.
Mane
9 F.A.No.:1412 & 1413/2006