ORDER
S.N. Kapoor, J. (Presiding Member)
1. The appellant opposite party M/s. Eicher Motors Ltd. felt aggrieved by the order passed by the State Commission, directing the appellant to replace two vehicles by new vehicles of the like nature and in the event of failure, the opposite party No. 1/appellant, to refund price of Rs. 14,58,000 with 18% interest thereon from the date of delivery till payment with cost of Rs. 10,000. Opposite party No. 2, the Sangli Bank Ltd., Amrawati was also directed to pay compensation and cost amounting to Rs. 10,000 in all to the complainant.
2. In brief facts giving an occasion to filing of this appeal area as under:
The complainant Dilip Chandra Kant Vaidya, an educated unemployed and as proprietor of Rohit Travels purchased two buses on 12.2.1994 from opposite party No. I/the appellant M/s. Eicher Motors Ltd. Dhar, Madhya Pradesh with following particulars:
1. Engine No. I-30818642 Chassis No. 4FF-30826207 Reg. No. MH-27-A/9095 2. Engine No. I-20715476 Chassis No. 4FF-20723043 Reg. No. MH-27-A/9097.
3. The buses were to be used as tourist buses. The complainant respondent No. 1 herein took loan from Sangli Bank Ltd. Amrawati opposite party No. 2 to the extent of rupees 19.9. lac under “Deferred Payment Bank Guarantee Scheme”. The buses were initially plied as tourist buses between Amrawati and Pune. However, after some time the complainant found that the vehicles were not working properly and they need frequent repairs and were required to be taken to Nagpur for this purpose. Several telephonic calls were made for the replacement of the vehicles due to the manufacturing defects therein. The appellant did not respond to the grievance of the respondents. Sangli Bank Ltd. pressed for the repayment and without consent encashed the F.D.Rs. lying in the custody to the extent of rupees four lakh and twenty-five thousand out of total F.D.Rs. of rupees five lakh fifty thousand for the complainant expressed his inability to make the payment for the buses could not be plied. He also sought and got exemption for payment of taxes from the R.T.O. Since the Sangli Bank had deliberately got the delivery of second hand vehicles leading to frequent failure in the operation of the buses, the complainant claimed rupees twenty lakh from the opposite parties.
4. The case of the appellant was that the)’ had sold two buses to the complainant on “as is where is” basis. The appellant had not given any warranty to the complainant. The complainant was not a consumer. Complaint was not maintainable for there was no manufacturing defect. Accessories like Air Conditioners of the buses were supplied with no warranty.
5. The following points were considered by the State Commission:
1. Whether the complainant is a consumer?
2. Whether the complainant had purchased the vehicles for commercial purpose?
3. Whether the buses were purchased on “as is where is basis?”
4. Whether there was manufacturing defect in the two buses?
5. Whether the complaint was barred by time?
6. Whether the State Commission had pecuniary jurisdiction to entertain the complaint(s)?
7. What relief(s) the complainant was entitled to?
6. The State Commission took view that financial tie up between the complainant, SIDBI and Sangli Bank took place to the knowledge and approval of the Eicher Motors, the appellant was estopped from disputing the fact that the complainant was educated unemployed person, and he was running a fleet of vehicles. The State Commission found that the submission that the vehicles were used for earning huge profits and not for livelihood of the complainant was not acceptable and deserved to be discarded and held that that the appellant did not succeed in proving that the complainant was using the vehicles for commercial purpose. Vehicles sold were supposed to be new vehicles. State Commission also held that there were manufacturing defects in the buses and the appellant indulged in unfair trade practice and accordingly ordered the refund of rupees fourteen lakh and fifty-eight thousand with 18% interest and with cost w.e.f. 1.3.1994 till the actual payment of rupees ten lakh.
7. Having heard the parties Counsel at length we think that the question of commercial purpose has assumed great importance in order to decide whether the complainant is a consumer and Consumer Fora will have jurisdiction to entertain the complaint in this matter in view of the fact that the two buses were sought to be purchased and further the complainant claimed in para 3 of the complaint that he was educated unemployed person and sought financial assistance as he wanted to take up avocation of running Tourist Buses.
8. In Rejoinder dated 28.10.1998 filed before the Maharashtra State Commission in last para of Point No. 1, in respect of purchase of old buses for commercial purpose, the complainant made following averments:
The complainant was an educated unemployed person, the financial assistance was sought for taking up the avocation of running Tourist Buses for earning his livelihood under the Government sponsored scheme. The financial assistant was sanctioned accordingly and the amount was remitted directly by the Financial Institution to Eicher Motors Ltd. and the same have not been purchased by the complainant from his own funds the complainant having no funds of his own and have no source of livelihood. Under such circumstances, it is unfathomable that the complainant would opt for old bus and that the complainant took the buses for making profits. For running travelling agency, buses are necessary to be kept hence the complainant booked buses. The Consumer Protection Act has especially been enacted to protect the interest of the small entrepreneurs and thus the complainant is within his right to seek redressal under the provisions of Consumer Protection Act and the clause of commercial purpose would not come in the way of the complainant and the Eicher Motors Ltd. is not entitled to take shelter of this clause on flimsy and unsubstantiated ground. The Eicher Motors Ltd. has deliberately raised this ground to scuttle the right of the complainant. The plea raised by the Eicher Motors Ltd. need to be discarded accordingly and the complainant may kindly be granted special cost.
(Emphasis supplied)
9. In Sur Rejoinder dated 16.3.1999 the opposite party /respondent, in reply to para 1 of the rejoinder, claimed as under:
…the complainant had a fleet of six buses and he was running them for tourist travel agency. The complainant managed to obtain loan representing himself as educated unemployed and was running a fleet of six buses for the tourist travel agency. He employed drivers, conductors and many others in his commercial enterprise of travel agency. When such person purchases buses for his travel agency business, he is not a consumer within Section 2(d) of the Consumer Protection Act.
10. The complainant filed written submissions dated 8.4.1999 before the State Commission. In para 3 thereof he further mentioned in the written submission as under:
By no documentary evidences which are on record it can be concluded that the complainant has given two buses for running to any other person. It is, further, clarified that the complainant was the alone person to have the care of these two buses and as the buses were old and defective they were giving trouble right from the beginning and required repairs and sometimes even they required major repairs.
(Emphasis supplied)
11. When he purchased two buses by no stretch of imagination it can be said that he could drive both buses without employing drivers. It is not his case that any other family member of the complainant was driving the same. The fact that the buses were in his care would not mean that they were not being run by employees for the purposes of running travel business.
12. Annexure-H a certificate as sent by the complainant to S.I.D.B.I., Bhopal reads as under:
Dear Sir,
1. We hereby certify that we are small road transport operators engaged in transportation of passenger and do not own more than six vehicles including the vehicle covered by the bills listed below:
2. We further certify that the vehicle covered by the bill listed below will be registered with the concerned R.T.O. as Public Carrier and is required for our own use. We hereby authorize Small Industries Development Bank of India to inspect /verify the relative vehicle as also the records pertaining to its purchase at any time at its discretion either before the rediscounting of the under noted bills. We also undertake not to sell or otherwise dispose of the said vehicle so long as the bills remain unpaid by us.
CORRECTION CERTIFICATE SMALL INDUSTRIES DEVELOPMENT BANK OF INDIA, BHOPAL
This is to certify that alterations/ charges made by us on the undernoted usance bills have been occasioned due to typographical spelling errors at the time of execution of those usance bills. These alterations/charges have been made to give effect to our original intention while executive these usance bills and the same are binding on us.
——————————————————-
Bill Period of Amount in Nature of
Date usage of Rs. corrections
months
-------------------------------------------------------
1. 9 1,55,300
2. 12 93,300
3. 18 1,14,000
4. 24 1,08,100
5. 30 1,02,200
6. 36 96,200
7. 42 90,300
8. 48 84,400
9. 54 78,500
10. 60 72,700
9,95,000
-------------------------------------------------------
Sd/- D.C.C. Vaidya
For Dilip Chandrakant Vaidhya.
13. In the case of Laxmi Engineering Works v. P.S.G. Industrial Institute , term commercial came to be considered, which reads as under:
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 persons 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 other 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 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.
14. In view of the above, it is very difficult to accept that the complainant was not having four more buses. Earlier the complainant purchased two buses. There is no evidence whatever that any other family member of the complainant was running these buses to bring it within the fold of self-employment of the members of the family of the complainant. It is not possible to accept that the complainant could ply even two buses himself. In absence of any such evidence, we are of the definite opinion that neither the complainant / respondent was a consumer nor the buses were purchased for self-employment to cover it under the exclusion from the phrase commercial purposes. The complaint, therefore, must fail on these grounds.
15. However, we do not see any reason to accept that either the vehicle could be sold on “as is where is” basis in view of the nature of loan granted by S.I.D.B.I. The very plea along with the evidence led by the complainant/ respondent indicated that the buses sold suffered from numerous defects, needing replacement.
16. As regards pecuniary jurisdiction, since the complainant being dominus litis i.e., master of suit or complaint, could restrict the claim to Rs. 20,00,000, the complaint could be entertained only by the State Commission and none else at the relevant time.
17. The point of limitation as well as the above points were rightly decided by the State Commission.
18. Had we found that the vehicles were to be used for self-employment, we might have dismissed the appeal in respect of the relief awarded by the State Commission.
19. For the above said reasons, the appeal is allowed accordingly liberty to the complainant/respondent to approach appropriate Forum/Civil Court. Parties are left to bear their own cost to seek appropriate relief.