State Consumer Disputes Redressal Commission
Dr. Prafulla Hede vs Tata Motors Ltd. & Another on 3 March, 2015
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BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No.07/15
Dr. Prafulla Hede,
Having his registered office at
Durga Bhavan, Hede Center,
Tonca, Miramar, Panaji - Goa .........Appellant
V/s.
1. TATA Motors Ltd.,
Having its office at 5th Floor,
One Forbes, Dr. V. B. Gandhi Marg,
Kala Ghoda, Fort, Mumbai,
Maharashtra.
2.M/s. Auto Industries Pvt. Ltd.,
NH 17, Govolloy,
Nuvem, Salcete, Goa .......Respondents
Appellant/Complainant is represented by Adv. Shri. N. Takekar
Respondent/ OP No.1 is represented by Adv. Ms. D. Bakre
Respondent/ OP No. 2 is represented by Adv. Shri M. S. Joshi
Coram: Shri. Justice N.A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated: 03/03/2015
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ORDER
[Per Justice Shri. N. A. Britto, President] This is a Complainant's appeal and is directed against final order dated 14/11/2014 of the District Forum by which the Complainant's consumer complaint has been dismissed on merits as well as on the ground that the Complainant is not a consumer.
2. Some facts are required to be stated to dispose off this appeal, and for that, the parties to this appeal are being referred to in the names as they appear in the cause title of the complaint.
3. The Complainant is a mine owner and exporter.
4. The Complainant purchased on 22/02/2011, a Tata Sumo Grande from OP No.2, manufactured by OP No.1 for a sum of Rs.7,01,039/- and got it registered under no.GA 07 E 2194 and obtained its delivery on 24/02/2011 and handed over the same to their Mines Manager.
5. The Complainant took a personal loan of Rs.4.9 lacs from Axis Bank and made a down payment of Rs.1,53,142/- from the Complainant's business account inorder to purchase the same.
6. The Complainant's Mining Manager on 28/02/2011 informed the Complainant in writing about the problems the vehicle was giving such as not taking load, change of gear to climb even minor gradient, etc. and further stated that they were unable to overtake other mining trucks in their area due to less pick up and that even the driver was getting scared to drive the said vehicle in heavy traffic area. On the same day, the Complainant's authorized signatory, Shri C. Parab wrote to OP No.2, stating that they had purchased the said Sumo Grande for their mining Manager enclosing mining Manager's letter dated 28/02/2011 and requesting 3 for an amicable solution at their earliest as they could not keep the mining work on hold. The vehicle was then taken to the workshop of OP No.2 on 4/03/2011 and OP No.2 noted from the mud and dust found on the vehicle that it was being run on mines.
7. The vehicle was then properly checked with an advice not to use adulterated fuel and was delivered to the Complainant .
8. The vehicle was again brought to the workshop of OP No.2 on 9/04/2011, with a complaint of poor pick up, and OP No.2 found that the vehicle was being used with adulterated diesel and because of it the entire fuel tank was drained, the fuel filters were replaced and the vehicle was test driven and the Complainant was accordingly informed to take back the vehicle but according to OP No.2, the Complainant, has refused to take back the vehicle or even to take a trial of the vehicle adamantly stating that the amount spent by the Complainant should be refunded or the Complainant should be given a brand new vehicle.
9. The complaint was filed for refund of the price paid with interest @ 12% and for compensation of Rs.2,000/- per day from 3/03/2011 or in the alternative to direct both the OPs to give to the Complainant a new vehicle of the same make and same model, which complaint, as already stated, has come to be dismissed on the ground that the Complainant is not a consumer and on merits as well.
10. We would like to address only to the correctness of the finding given by the Lr. District Forum whether the Complainant is a consumer or not.
11. The Lr. District Forum while dismissing the complaint has referred to certain findings given by this State Commission in F.A. No. 31/14 in the case of Mr. Sanjay Mohan Volvoikar by order 4 dated 26/09/2014. We would like to reproduce the same from the impugned order:
"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."
"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 5 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 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. "
12. One of the submissions made by Shri Takekar, the lr. advocate of the Complainant, is that the finding that the Complainant is not a consumer was given behind is back. We are unable to accept this submission, for we find from the record that the Complainant filed additional submissions on 25/09/2014 and relied upon Controls 6 and Switchgear Co. Ltd. vs. Daimlerchrysler India Pvt. Ltd. & anr. , (IV) 2007 CPJ (1). Another submission made is that the issue of jurisdiction namely that the Complainant is not a consumer was not raised by OP No.2 and OP No.1 who had raised the same was not allowed to file its written version and by order dated 26/06/2013 affidavit in evidence filed by Op No.1 was not allowed to be taken into consideration at the time of arguments.
13. The answer to the above submission can be found in para 30 reproduced hereinabove. Nothing had prevented OP No.1, even in a case where they had not filed their written version, to demonstrate to the Lr. Forum that on the basis of the averments in the complaint and the documents produced by the Complainant, that the Complainant was not a consumer since such an issue would be one of jurisdiction.
14. Shri Takekar, the lr. advocate of the Complainant would submit that the vehicle was purchased by obtaining a personal loan by the Complainant, and, therefore, the Lr. District Forum was not right that the vehicle was purchased for a commercial purpose. Lr. advocate submits that the vehicle was purchased for conveyance of its mines Manager and not for working in the mines at Collem. Lr. advocate has placed reliance on the said decision in Control Gears Co.Ltd. (supra).
15. On the other hand, lr. advocate Ms. D. Bakre, on behalf of OP No.1, and Shri Joshi, on behalf of OP No.2, have submitted that Complainant is not a consumer as the Complainant had purchased the said vehicle to be run by the mines Manager in the mining activity carried out by the Complainant. Lr. advocate Ms. Bakre has placed reliance on M/s. Rehab Housing Pvt. Ltd. and anr. Vs. BMW Germany and ors., 2012 (5) ALL MR (Journal) 1 wherein it was held that the purchase of luxury BMW car to enhance the prestige and 7 status of its director in the market was a commercial purpose and as such was covered by the explanation appended to Section 2 (1) (d) of the Consumer Protection Act, 1986 and as such the Complainants could not file a consumer complaint.
16. We are not impressed with the submissions made on behalf of the Complainant by Shri Takekar, the lr. advocate. In the case of Controls and Gears Co. Ltd. (supra) it was urged that the two Mercedes Benz Cars were purchased by the Complainant Company for a commercial purpose and therefore the Complainant Company could not be regarded as a consumer under the provisions of Consumer Protection Act, 1986. The Hon'ble Supreme Court held that there was no substance in the said objection and held that (i) the Complainant is a legal entity and is entitled to file a complaint;
(ii) the cars were purchased for the use of the directors and were not to be used for any activity directly connected with commercial purpose of earning profits. Cars were not used for hire but were for the personal use of the directors. Hence it cannot be said that the Complainant Company had purchased the cars for commercial purpose.
17. In our view, the case of Controls and Gear Co. Ltd. (supra) is distinguishable from the facts of the case at hand, and therefore the observations or findings given by the Hon'ble National Commission are not at all attracted to the facts of this case.
18. In the case at hand, the vehicle was purchased by the Complainant not only by taking a personal loan but also utilizing the funds of his business venture. It is safe to infer that although a personal loan was taken by the Complainant of Rs.4.9 lacs the balance was paid from the business venture of the Complainant. The letter dated 28/02/2011 was issued on behalf of the Complainant by its authorized signatory wherein it was clearly 8 stated that the vehicle was purchased for their mining Manager and that malfunctioning of the vehicle was compelling them to keep the mining work on hold and not only that they were spending more than Rs.1,500/- per day to hire another vehicle. In other words, the Complainant had purchased the vehicle in question not for the Complainant's personal use or for purpose of earning his livelihood but for a commercial purpose to be used in the mines by his Mines Manager. The Complainant has not pleaded that the Complainant purchased the vehicle for earning his livelihood or personal use. The Complainant therefore could not have been considered to be a consumer who could invoke the jurisdiction of the Forum under the Consumer Protection Act, 1986.
19. We find there is no merit in this appeal and proceed to dismiss the same. The Complainant would be free to invoke the jurisdiction of the Civil Court or in other Forum and seek the reliefs sought for by him and for that the Complainant may take the benefit of Section 14 of the Limitation Act, as held by the Apex Court in Laxmi Engineering, AIR 1995 SC 1423.
[Smt. Vidhya R. Gurav] [Justice Shri N. A. Britto]
Member President
/lm