GHULAM QADIR BHATT vs Bajaj Tempo Ltd.

THIS order will dispose of all the three complaints titled above.

WE would like to relate the facts of Ghulam Qadir Bhatta v. Bajaj Tempo Ltd. [complaint No. 2139 of 2001]. Complainant in this case alleged that he in order to earn his livelihood approached the Citizen Cooperative Bank Ltd. and availed the loan facility from them to puchase Tempo Excel-4 vehicle on a term loan amounting to Rs. 3.40 lakhs. Complainant was lured by respondent No. 2 M/s. Kay Dees Pvt. Ltd., to purchase the said vehicle with the following specification : "The new Tempo Excel 4 rear wheel driven vehicles are fitted with TD-3000 FDI Engine GI-18/5A gearbox rigid 1-beam front axle, fully floating hypoid driven rear axle and many other outstanding features."

Complainant purchases the said vehicle in May, 2001 from O.P. No. 2 for an amount of Rs. 5.00 lakhs which were paid to O.P. in three instalments. After purchasing the vehicle they found the vehicle had suffered manufacturing defects. They got their grievances registered with the O.P. It is alleged that O.P. sent their engineers but could not remove the defects so the complaint was lodged. Complainant has prayed that the O.P. be directed to reimburse the complainant by paying the principal amount as cost of vehicle with 18 per cent interest and Rs. 5.00 lakhs as compensation for the loss suffered by the complainant and Rs. 2.00 lakhs for causing mental harassment to the complainant.

O.Ps. were noticed, O.Ps. resisted the claim on two grounds :- (i) That the complainant is not a consumer. (ii) Secondly there is no manufacturing defect.

In all the three cases facts are more or less similar and the question of law is similar in all the above three cases.

WE have heard learned Counsel for the parties. The main question to be decided by us is whether complainant is a Consumer in the light of definition given under CP Act or not. Learned Counsel for complainant has argued that the complainant has purchased the vehicle only to earn his livelihood which comes under the explanation of Section 2(d), which is quoted hereunder : "Explanation.-For the purposes 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."

He has taken us to the whole record and has contended that complainant is not a big transporter. His source of income is only the vehicle which he has purchased for his livelihood. On the other hand learned Counsel for O.P. has vehemently argued that the complainant had engaged the services of a driver. He was not plying the vehicle himself so he cannot come under the explanation quoted above. We have given thoughtful consideration to the arguments advanced before us. We first quote the law laid down by the Apex Court in Laxmi Engg. Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)=Civil Appeal No. 4193 of 1995 dated 14.4.1995. Facts of Apex Court case are that Laxmi Engineering Works was the purchased concern establishment under Employment Promotion Programme. They purchased Universal Turning Central Machine which was found defective. He lodged complaint No. 116 before Mumbai Consumer Redressal Commission claiming the principal amount and compensation. Commission allowed the complaint. Respondent filed appeal before National Commission which allowed the appeal by holding that the complainant was not a consumer. It was done on the basis that record showed that the complainant was doing this business at a large scale and earning profit. Apex Court confirmed view of National Commission.

EXPLANATION of the provision quoted above has been discussed by the Apex Court in the following paras: "12. Now coming back to the definition of the expression ''consumer'' in Section 2(d), a consumer means insofar as is relevant for the purpose of this appeal. (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or any commercial purpose. The expression "resale" is clear enough. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning, "Commercial" denotes "pertaining to commerce" (Chamber''s Twentieth Century Dictionary) it means "connected with, or engaged in commerce, mercantile; having profit the main aim" (Collins English Dictionary) whereas the word "commerce" means "financial transactions especially by buying and selling of merchandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit" he will not be a "consumer" within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion-the expression "large scale" is not a very precise expression-the Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression "commercial purpose"-a case of exception to an exceptional. Let us elaborate : a person who buys a typewriter or a car and used them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing other''s work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situation, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition of expression "consumer". If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a "consumer." In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself i.e. by self-employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose," to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz. "uses them by himself" exclusively for the purpose of earning his livelihood and by means of self-employment, make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasis what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as public carrier by himself would be a consumer. A person who purchases a Lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operation of the vehicle or machinery he does not cease to be consumer). As against this a person who purchases an auto-rickshaw, a car or a Lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expression "used by him" and "by means of self employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood," is explained and clarified by the other two sets of words." 13. It is argued by the learned Counsel for the appellant that such a narrow construction may not be warranted by the scheme and object of the enactment. He says that there may be a widow, or an old or invalid man who may have no other means of livelihood and who purchases an auto rickshaw or a car or other machinery to be plied or operated by another either on payment of consideration on a daily, weekly or monthly basis or as a servant or agent. While there is certainly some logic in the said submission it cannot be accepted in view of the language of the explanation."

In nutshell we have been able to conceive from the judgment of the Apex Court is that a person if purchases the machine or a taxi or an auto rickshaw can be included in the definition of Consumer only if he operates himself. If he hires the services of a driver to ply auto rickshaw or a taxi or hires the services of some other person to operate upon machine, he will not be included in the list of consumers but can be said that he has purchased such machine, taxi or auto for commercial purposes. Notwithstanding, we feel that there are certain living examples where a person cannot operate a machine himself either due to old age or due to ailment or for any other reasonable ground but we feel armless to help him and bestow the benefits on him which the Consumer Law gives because of above interpretation of Hon''ble Supreme Court. Though it was brought to their notice regarding a case of a widow or disabled person but the Apex Court has appreciated the logic in the said submission but has not accepted to give relief in view of the language of the explanation. It is a fact the Apex Court has observed that the commercial purpose will be seen from case to case that if a person hires the services of another man to ply the auto rickshaw or a taxi he cannot be treated consumer, is standing in our way to help the needy persons who have no other means but at the same time cannot ply the taxi or auto rickshaw themselves or cannot operate the machine themselves. Apex Court has refused to stretch the interpretation of the explanation to the section to include needy persons who cannot ply the vehicle themselves on reasonable grounds. They have held : "That if a person hires the services of another man to ply the auto rickshaw or a taxi he cannot be treated as consumer....." In view of this authority we dismiss all the three appeals mentioned above because in all the three appeals sevices of drivers were hired by all the three complainants who were plying the vehicles. However, complainants are at their liberty to seek any other remedy if allowed by law. Complaints dismissed.