State Consumer Disputes Redressal Commission
M/S. Cholamandalam Investment & ... vs Mr. Yoganand Shankar Naik on 3 January, 2013
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI- GOA FA No. 19/2010 M/s. Cholamandalam Investment & Finance Company Limited Off: Dare House, 2, N.S.C Bose, Chennai. Through authorised person Shri. Sushant V. Naik, age 35 years, Off: 210/211, 2nd floor, City Centre, Patto Plaza, Panaji-Goa. . Appellant/O.P. Vs. Mr. Yoganand Shankar Naik H.No. 483, Gawato Waddo, Kumbharjua-Goa. Respondent/Complainant Appellant/O.P. is represented by Adv. Shri. R.Chodankar. Respondent/Complainant is represented by Adv. Shri. N.G. Kamat. Coram: Shri Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 03/01/2013 ORDER
[Per Shri Justice N. A. Britto, President] This appeal is filed by the O.P. in C.C. No. 55/2007 and it is directed against order dated 30/06/10 of the District Forum, North Goa at Porvorim by which the Lr. District Forum has, inter alia, ordered the vehicle to be returned to the O.P. and the O.P. is ordered to refund to the complainant the sum of Rs. 3.5 lacs with interest at the rate of 12% p.a from 15/12/05.
2. There is no dispute as to facts. The O.P. had obtained the possession of a vehicle hypothecated to it from one Shri. Madhusudan Dessai who had become a defaulter in repayment of the loan given to him. The complainant offered to purchase the said vehicle namely an Eicher Tempo having registration No. GA-02-Z-6250 from the O.P. According to the complainant, the complainant gave an offer of Rs. 3.7 lacs and according to the O.P. the vehicle was sold to the complainant for Rs. 3.5 lacs including Rs. 5000/- as EMD, as is where is basis. The complainant signed and delivered to the O.P. a letter dated 15/12/05 at the time of delivery of the vehicle, inter alia, stating that:
3. All statutory taxes including Motor vehicle tax, state permit, and national permit, Insurance are to be borne by you and as such it does not form part of the sale value. Further the fitness certificate for the above vehicle if applicable has to be arranged by you and it does not form part of the sales price.
4. The registration certificate for the above vehicle has to be obtained by you and hence all expenses incurred for obtaining the same has to be borne by you and as such it does not form part of the sale value.
5. The sale of the vehicle is on as in where is condition basis and Cholamandalam does not give any warranty or guarantee as to the condition of the vehicle or its usability. You are advised to satisfy yourself thoroughly before giving the quote.
6Kindly sign and return a copy of this letter as a token of acceptance of the above terms and conditions.
3. The complainant got the said vehicle towed away and according to him, he repaired the same at the cost of Rs. 80,000/-.
4. According to the complainant, he had purchased the said vehicle for a sum of Rs. 3.7 lacs of which Rs. 3.45 lacs were paid by DD while the balance was paid in cash to the Branch Manager Shri. Premanand Kerkar. According to the complainant, the O.P. had assured that it would render all assistance to the complainant and would ensure that the vehicle was transferred to the complainants name. The complainant thereafter sent a legal notice to the O.P. on or about February 2006 and then approached the conciliation committee and as the dispute raised by the complainant could not be conciliated, the complainant filed the complaint on or about 21/06/07.
5. Before dealing with the submissions made by the Lr. advocates on behalf of the parties, we must observe that the impugned order can immediately be faulted. The impugned order of the Lr.
District Forum ignores the letter dated 15/12/05 by which the complainant had agreed to the terms of sale mentioned therein.
Likewise, the impugned order also ignores the fact that the vehicle in question was in possession of the complainant for more than two years and it could be safely inferred that during the said two years the complainant must have made use of the same and yet the impugned order proceeds to award to the complainant refund of the sale price of Rs. 3.45 lacs with interest at the rate of 12% as well as compensation of Rs. 50,000/-.
6. Shri. R. Chodankar, the Lr. Adv. of the O.P. has raised two objections to the maintainability of the complaint and has relied upon two decisions. The first objection raised by Shri. Chodankar is of jurisdiction namely that the complainant was not a consumer as the complainant had purchased the tempo for business purpose. Shri. Chodankar would submit that ordinarily such vehicles which are seized and lie in the yard of the O.P. are purchased by scrap dealers to dismantle and sell individual parts to those who require the same. Lr. Adv. submits that the complainant was self employed with a old pick-up of 1994 model and was driving the same to earn his livelihood as stated by the complainant in para one of the complaint, and the pick-up in question was purchased by the complainant to earn profits by hiring the same. In this connection Shri. Chodankar has placed reliance on M/s. Cholamandalam DBS Finance Ltd vs. Jogender Singh, FA No. 344 of 2008 of the Chhattisgarh State Commission decided on 05/05/2010.
7. On the other hand, Shri. N.G. Kamat, the Lr. Adv. of the complainant concedes that there was no auction and offers were invited by the O.P. for sale of the said vehicle and the complainant offered the price of 3.7 lacs and paid the same by taking a loan from Bank of Maharastra. Shri. Kamat would further submit that because the complainants pick-up was old, the complainant wanted to replace the same by the vehicle in question. Lr. Adv.
submit that he had gone to the O.P. in the first week of December 2005 and at that time the O.P. did not say anything about not giving of documents. Lr. Adv. submits that the complainant was not a literate person as to know the contents of letter dated 15/10/05 and the same are not binding on the complainant.
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.
Reference was made to Laxmi Engineering works and it was ultimately held that Jogender Singh was not a consumer.
The contention of Lr. Adv. Shri. Kamat that the complainant wanted to replace his vehicle of 1994 model with the vehicle in question is not borne out of the record. On the contrary, it appears that the complainant was already having an old pick-up and was earning his livelihood by driving the same. As can be seen from other averments in the complaint, the complainant wanted to earn profits from the purchase of the vehicle after repairing the same and hiring it with Marico Company from which the complainant expected to earn Rs. 1500/- upwards per day. In other words, the complainant had purchased eicher tempo for commercial use. The Apex Court in U.T. Chandigarh Administration vs. Amarjeet Singh & ors. by decision dated 17/03/09 in Civil Appeal No. 1994/2006 has held that a Consumer Forum will have jurisdiction only when : (i) the complainant is a consumer as defined in clause (d) or a person specified in clause (b) of section 2 of the Act; (ii) the respondent is a trader as defined in clause (q) or a provider of service as defined in clause (o) of section 2 of the Act; and (iii) the complaint relates to any of the matters specified in clause (c) of section 2, for obtaining any relief provided under the Act. Since the complainant wanted to have another vehicle, in addition to the vehicle held by him, from which he was already earning his livelihood it could be safely inferred the purchase of the vehicle in question was for commercial purpose and therefore the complainant would not fit in the definition of being consumer as defined under the C.P. Act.
9. The second objection raised by Shri. Chodankar, the Lr. adv. of the O.P. is that the purchase was made by the complainant in an auction and therefore the complainant would not be a consumer as defined under the C.P. Act. Shri. Chodankar submits that the complainant knew fully well that the O.P. is not the owner of the vehicle and it was hypothecated to the O.P. by the said Shri. Madhusudan Dessai and it was purchased by the complainant on as is where is basis and the complainant therefore could not have expected the O.P. to handover any documents of the vehicle to the complainant.
10. Admittedly, this is not a case of auction.
Nevertheless, the offer made by the complainant for the purchase of the vehicle was accepted by the O.P. and the vehicle was sold to the complainant as is where is basis and the complainant towed the same and got it repaired, as stated by him. The complainant agreed to the terms and conditions which we have already reproduced hereinabove. The complainant as prudent purchaser cannot be allowed to wriggle out from the said terms and conditions on the specious plea that the complainant is a semi literate person. The complainant is a prudent businessman; he has taken two loans and is servicing the same by paying installments of Rs. 7000/- and Rs. 4500/- per month. He must be certainly knowing the terms on which he has taken the loans. He is bound by the terms he has signed on 15/12/05. It is well settled that the Indian Contract Act applies to all including the consumers as held by the Apex Court in Marine Container Services, AIR 1999 SC 80. The Complainant having agreed to the said terms in black and white and with open eyes cannot turn round and now say that the same is not applicable to him as he is a semi literate person. Although this is not a case of auction as such the observations of the Apex Court in U.T. Chandigarh Administration (supra) are equally applicable of the facts of the case at hand. The case of U.T. Chandigarh Administration was a case of public auction where certain sites were sold on certain terms and conditions and the complainants had filed complaints, inter alia, for directions to the said U.T. Chandigarh Administration to provide basic amenities so as to enable them to raise construction on the sites, and the Apex Court observed that in a scheme for development and allotment, the allottee has no choice of the site allotted. He has no choice in regard to the price to be paid.
The development authority decides which site should be allotted to him a person interested can inspect the sites offered and choose the site which he wants to acquire and participate in the auction only in regard to such site. Before biding in the auction, he knows or is in a position to ascertain, the condition and situation of the site. He knows about the existence or lack of amenities. The auction is on as is where is basis. With such knowledge;
he participates in the auction and offers a particular bid. There is no compulsion that he should offer a particular price. When the sites auctioned are existing sites, without any assurance/representation relating to amenities, there is no question of deficiency of service or denial of service. Where the bidder has a choice and option in regard to the site and price and when there is no assurance of any facility or amenity, the question of the owner of the site becoming a service provider, does not ariseIf all amenities are available, he would offer a higher amount. If there are no amenities, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction.
Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment, or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided.
11. Admittedly, the complainant was not given any documents at the time when the complainant obtained the possession of the vehicle in question and towed it away. Complainant was fully aware that the vehicle was seized from the said Madhusudan Dessai and therefore the documents would have been with him. The case of the complainant that the officials of O.P. had undertaken to handover the same after completion of their documentation is nothing but self serving vague statement without any corroborration and militates against the written document signed by the complainant at the time of taking delivery of the vehicle in question and therefore cannot be accepted. The complainant purchased the vehicle on as is where is basis. Once, with open eyes he purchased such a vehicle, he cannot be heard to say that the officials of the O.P. had promised to hand over the documents later. Complainant was bound by the terms and conditions of the sale letter. There was no deficiency in service on the part of O.P.
12. For reasons stated hereinabove we have no other option but to allow the appeal and set aside the impugned order and dismissed the complaint, with no order as to costs.
(Smt. Vidhya R. Gurav] (Justice Shri. N.A. Britto) Member President