BHUPENDRA JANG BAHADUR GURNA vs REGIONAL MANAGER

THIS appeal arises out of the order dated 27th November, 1992 of the State Commission, Bihar dismissing the complaint.

THE appellant has filed this appeal after a delay of 49 days. But, it is accompanied by an application for condonation of delay. The grounds for condonation are given in para 3 of the application supported by an affidavit. No written reply or opposition has been filed by the respondents. The facts stated in the application disclose, in our opinion, sufficient cause for the condonation of delay in filing the appeal which is entertained. The appellant, complainant before the State Commission, had bought one Eicher Sona Tractor with trailer on 23rd April, 1986 for a consideration of Rs. 1,04,510/- with a warranty for a period of one year. The complainant alleged negligence and utter failure of the opposite parties in supplying the tractor which is defective and of sub-standard quality, thus causing heavy monetary loss, unnecessary mental tension, loss of work and other allied expenditure to the Complainant for which a compensation of Rs. 2 lakhs was claimed. Two preliminary objections were raised by the opposite parties, namely, that the complainant purchased the tractor for a commercial purpose and is thus not a consumer and that the provision of Chapter III of the Consumer Protection Act, 1986 came into force on 1.7.87 and the warranty period was for one year from the date of purchase which period had expired on 26th April, 1987 and thus the complainant is not eligible to seek the protection as the amending Act is prospective and not retrospective.

THE State Commission upheld both the preliminary objections. The State Commission also went into the merits of the complaint and appraised and evaluated the evidence on the record as to whether there was any manufacturing defect in the tractor or whether it was of substandard quality. The State Commission rejected the testimony of the complainant and his witnesses as to the manufacturing defects and dismissed the complaint.

SHRI . A.K. Lal Sinha, the learned Advocate for the appellant, urges that the tractor was purchased by the complainant primarily for agriculture and thus for self-employment to maintain his livelihood and that the finding of the State Commission is wrong. Although the State Commission noticed that the Complainant has in para 2 of his complaint petition stated that he needed the tractor for his agricultural work and also his commercial work and he has said so even in his evidence on oath before the State Commission, yet the inference drawn from these facts is erroneous and is liable to be set aside. It is manifest from the facts noticed by the State Commission and as given in the memorandum of appeal that the Complainants an agriculturist. He had purchased tractor in question after taking loan of Rs. 1.00 lakh from the State Bank of India by mortgaging his agricultural land for his agricultural work. The Complainant has, however, stated in the complaint as well as in his statement that he had purchased the tractor for his commercial work also. The commercial work has been explained by the Complainant by stating that he used to charge Rs. 60/- per hour for carrying goods in the tractor trolley. From the facts on the record, it is clear that the dominant purpose of purchasing tractor by the Complainant was for his own agricultural purposes. During some periods when the tractor was idle, the complainant might have been using it incidentally for hiring it out to till the land of others at the rate of Rs. 60/-per hour and might also be carrying goods in the trolley. These activities were also undertaken only to earn some small income for meeting the expenses of himself and his family. Thus the primary objective of the complainant in purchasing the tractor was not to make profits by tilling the lands of others but was to till his own lands to maintain his livelihood. It appears that the Complainant has loosely used the term ''commercial work'' for the subsidiary use of the tractor as a layman. The term ''commercial work'' has not been used by him in the sense in which it is used in the Consumer Protection Act where the term ''commercial purpose'' occurs. It is the consistent view of this Commission that when an activity is carried on a large scale to earn profit, only then the purpose can be said to be a "commercial purpose". Reference can be made to Synco Textile Pvt. Ltd. v. Greaves Cotton and Company Ltd., 1991 1 CPJ 499 On the facts of the present case, it cannot be said that "the Complainant is carrying on commercial work in profit making activity on a large scale. The Complainant in the present case, in our view is a "consumer" so far as the purchase of the tractor is concerned.

THE decision of the State Commission on merits is, however, unassailable. In his complaint before the State Commission, the complainant stated that after about one year of purchase of the said tractor it started giving trouble. Exhibit-1 is a certificate signed by the Complainant expressing satisfaction with the functioning of the tractor, after some defect in the tractor was attended to and repaired. Ramachandra Gupta was orally examined before the State Commission on 8.10.91 and he deposed that he had examined the tractor on 3.2.87 and changed ''O'' ring and thereby leakage had stopped and there was no other defect. Dilip Kumar Naru, another witness deposed in his cross-examination about certain defects on which great stress is laid by the learned Counsel for the appellant. But, even that witness admits that "I do not consider them to be manufacturing defects".

THE complainant had examined one Gouri Shankar Singh alleged to be Head-Mechanic of M/s. Poorvanchal Agro. This witness does support the complainant''s case but his evidence is rightly discarded by the State Commission, as he was disgruntled employee dismissed by M/s. Poorvanchal Agro for his negligent work besides, being only a helper and not Head-Mechanic. Even this witness admits that "I have not given in writing to the company regarding the manufacturing defects found in Eicher Sona Tractor". With this material on record, we uphold the conclusion of the State Commission when it found no merit in the complaint. The appeal fails and is dismissed with no order as to costs.