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2001 DIGILAW 116 (HP)

WORLD TRADE CENTRE v. MEERA DEVI

2001-06-22

ONKAR CHAND THAKUR, PREM CHAUHAN, SURINDER SARUP

body2001
ORDER Justice Surinder Sarup (Retd.) President: 1. This appeal is directed against the order of the District Forum, Kangra at Dharamshala dated 12.1.2000. whereby the appellants Nos. 2 & 3 have been directed to refund Rs. 4,63,465/- to the respondent (Complainant) with litigation expenses to the extent of Rs. 4,000/- within 15 days from the date of the said order, failing which, they have been directed to pay interest @ 15% per annum with effect from 1.7.1998 till the actual payment is made. Additionally, compensation to the extent of Rs. 10,000/- has also been awarded. A direction has also been given that on receipt of the amounts aforesaid, the respondent (complainant) will immediately surrender the truck at the Workshop of the appellant No. 2 - M/S Sikand and Company, Nagrota Bagwan. 2. We have heard the learned Counsel for the parties and we have examined the record. 3. The facts in brief are that the respondent had purchased a truck from appellants Nos. 2 and 3 which was ultimately allotted registration No. HP-39-9511. It was found to be defective as soon as it was purchased for a price of Rs. 4,63,465/- on June 30,1998. When a request was made by the respondent to the Dealers to replace the vehicle, they did not make any positive response and this led to the filing of the complaint before the Consumer Court. 4. In their joint reply, the appellants pleaded that it was due to the negligence of the respondent as complainant that the truck, in question, developed certain defects, for which they were not responsible. The learned Forum below, by a detailed order running into 11 pages, has dealt with the complaint, the reply thereto and the evidence of the parties at length and in meticulous details. Thereafter, it has come to the conclusion and awarded the amounts referred to above. In our considered view, there is no error in the impugned order which would call for rectification or interference insofar as the substance of the said order is concerned. 5. In fairness to the learned Counsel for the appellants, he has drawn our attention to para-5 of the complaint. It has been stated therein that the vehicle generally remained out of order and the complainant could not ply the same properly in her business because generally this truck after covering 10 to 12 kms. 5. In fairness to the learned Counsel for the appellants, he has drawn our attention to para-5 of the complaint. It has been stated therein that the vehicle generally remained out of order and the complainant could not ply the same properly in her business because generally this truck after covering 10 to 12 kms. distance becomes out of order.........On the basis of the same, it has been submitted by the learned Counsel for the appellants that on her own showing, the complainant had purchased the truck for her business i.e. for commercial purpose and, thus, her complaint was not maintainable in the Consumer Court. In order to appreciate this submission of the learned Counsel, it would be appropriate to refer to the definition of a Consumer as contained in Section 2 (d) which runs as follows:- "Consumer" means any person who- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, 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; Explanation - For the purpose of sub-clause (i), "Commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purposes of earning his livelihood by means of self-employment". In this context, the explanation below Section 2(d) (i) is very relevant and, thus, important inasmuch as it states that for the purpose of sub-clause (i), "commercial purpose" does not include use by the consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self employment. In this context, the explanation below Section 2(d) (i) is very relevant and, thus, important inasmuch as it states that for the purpose of sub-clause (i), "commercial purpose" does not include use by the consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self employment. Applying this explanation to the facts of the present case, it would be soon that reading the contents of the a complaint as a whole, it can be inferred that the truck, in question, was purchased by the complainant for the purpose of earning his livelihood and it was a means of self employment, not-withstanding the fact that the complainant had hired the services of a driver to ply the truck. 6. The matter and the point in issue is not res integra insofar as this Commission is concerned. A similar question arose in the case of Escorts Ltd. v. Rakesh Anand and others and the Yamuna Syndicate Ltd. and anr. v. Rakesh Anand & anr., Appeal No. 268 and 269 of 1999. In these cases by a common order, this Commission had disposed of the preliminary point raised on behalf of one set of parties pertaining to the jurisdiction of the Consumer courts to adjudicate the complaint therein. The precise question was the same as in the present case, namely, whether a consumer1 would include a person who uses goods bought by himself exclusively for the purpose of earning his likelihood by means or self employment. After considering and discussing the abundant case law cited on behalf of the parties in the said cases, this Commission came to the conclusion that in view of the Explanation under Section 2(d) (i) ibid, the use by a consumer of goods bought by him exclusively for the purpose of earning livelihood by means of self employment would not be one for a commercial purpose within the meaning of Consumer Protection Act, and thus, the Consumer Court would have jurisdiction in such a case. In the said case of Escorts Ltd., the facts were somewhat similar. The only difference being that whereas in the present case the complainant had purchased a truck from appellants Nos. 2 & 3, in that case, the tractor was purchased by the complainant from the Escorts Ltd., which was a subject matter of dispute therein. 7. In the said case of Escorts Ltd., the facts were somewhat similar. The only difference being that whereas in the present case the complainant had purchased a truck from appellants Nos. 2 & 3, in that case, the tractor was purchased by the complainant from the Escorts Ltd., which was a subject matter of dispute therein. 7. However, we are of the considered view that on the facts and circumstances of the present case, the award of compensation to the extent of Rs. 10,000/- in addition to the amount of Rs. 4,63,465/- is not justified, for the simple reason that it is a case of deficiency in service and/or unfair trade practice on the part of the appellants regarding sale of defective vehicle to the complainant, and not repudiation of a claim in case of accidented vehicle, which would be the appropriate case for awarding compensation. 8. For the reasons recorded above, we modify the order of the District Forum, Kangra at Dharamshala dated 12.1.2000 to the extent that the respondent is entitled to refund of Rs. 4,63,465/- from the appellants alongwith litigation expenses to the extent of Rs. 4,000/-, within the stipulated period mentioned in the impugned order, failing which, the appellants would be liable to pay interest @ 15% per annum with effect from 1.7.1998 till realisation. The compensation to the extent of Rs. 10,000/ - as awarded in the impugned order is hereby set aside. We maintain the direction in the impugned order that on the receipt of the amount of Rs. 4,63,465/- as well as litigation expenses of Rs. 4,000/-, the respondent (complainant) will immediately surrender the truck bearing registration No. HP-39-9511 at the workshop of appellant No. 2 - M/S sikand & Company. Nagrota Bagwan. The appeal is disposed of in these terms.