PRAMOD KUMAR vs TELCO

THE complainant filed a complaint against the opposite parties under Sec. 12 of the Consumer Protection Act, 1986 ("the Act" herein) before the District Forum, Bikaner. It was registered as Complaint No. B163/90 vide order dated 20.7.90; That complaint was returned to the complainant. THE complainant has filed this complaint before the State Commission. THE complainant alleged that the purchased a truck from opposite party No. 3 on 8.9.89. Opposite party No. 3 is the authorised dealer of opposite parties No. 1 and 2. Its chasis No. was 3440733 23147 and engine No. was 692 D.O. 133-2804. It was purchased vide bill No. 2269 dated 8.9.89 for Rs. 3,l0,926/-. Its registration No. is RJ 0711040. THE complainant has alleged that he purchased the truck for his own use. THE complainant alleged that the truck was purchased after taking loan of Rs. 2,00,000/- from the Rajasthan Bank, Kot Gate Branch, Bikaner. Opposite party No. 3 had given the guarantee of the truck for 12 months. THE guarantee provided that if there would be any defects in the truck, they will be removed/rectified free of charge and the defective parts will be replaced. Opposite party No. 3 also undertook that if there would be a defect of quality or manufacturing then a new engine and chassis will be changed.

THE case of the complainant is that the truck became unserviceable on May 1,1990 at Hyderabad and information about this was given through telephone by the complainant to opposite party No. 3. It is said that opposite party No. 3 told that the truck maybe got checked at Hyderabad from the authorised dealer of the company. THE complainant went to the authorised dealer of the company M/s. B. Sheshagiri Rao Industries Pvt. Ltd., Ashok Market, Hyderabad and got the vehicle checked there. THE dealer told that some sound comes from the engine and it will take two months time for removing the defects. This information was conveyed by the complainant to opposite party No. 3. THE truck was made temporarily serviceable in the local market of Hyderabad and the same was brought to Bikaner. THE complainant spent a sum of Rs. 785/- after reaching at Bikaner on May 11, 90. THE truck was left in the workshop of opposite party No. 3 and he was informed about the defects. Opposite party No. 3 did not answer satisfactorily and did not do the work of repairing the vehcile. THE complainant was told that opposite party No. 3 will prepare the report of the chassis and send the same to the company but ignored the defects of the Engine. THE vehicle was returned to the complainant. THE complainant was verbally assured by the Manager of opposite party No. 3 that if there is any defect it will be removed but it was not done. According to the complainant, the chamber of the truck broke on May 12,1990 and the information of the same was given to the opposite parties. Opposite party No. 3 told that the vehicle may be brought to the HQ at Bikaner and it would be sent to the workshop. It will be repaired and made serviceable. THE complainant brought the vehicle from Rawatsar to Bikaner on May 18,1990 and put the same in the workshop. Opposite party No. 3 told that there are defects in the engine and the chassis. It did not give receipt of the same, and the truck remained lying as it is in the workshop of opposite party No. 3. THE opposite parties did not change the defective truck i.e., chassis and engine. THEy did not make the truck serviceable. When the truck was kept in the workshop, the complainant was told that report of technical defects of the vehicle would be got repaired and it will be sent to the company and will manage to get the truck repaired immediately. When this was not done, the complainant sent a registered notice on May 26, 1990. Despite this the truck was not repaired. In breach of the guarantee, opposite party No. 3 illegally demanded a sum of Rs. 45,000/- from the complainant. THE complainant was asked to bring required parts from the market and thereafter the truck would be repaired. Opposite party No. 3 is said to have misbehaved with the complainant and also refused to take the application in writing. THE complainant was told either to pay Rs. 45,000/- in cash or bring half engine assembly otherwise the vehicle will not be repaired and incorrect concocted report against the complainant to opposite parties No. 1 and 2 will be sent. THE complainant has alleged that the truck is out of service from 18.5.90. It is lying at the workshop of opposite party No. 3 and thus he is suffering loss of 1,000/- per day. A sum of Rs. 38,815/- was claimed on account of damages. A prayer was made that defective engine and chassis be got changed from the opposite parties and the same be got repaired and be given in good and workable condition to the complainant. A sum of Rs. 1,000/- per day on account of damages was also claimed till the vehicle is repaired and given to the complainant. Opposite parties No. 1 and 2 submitted a joint written statement contesting the complainant on merits as well as on preliminary objections, but it was not taken on record. It was submitted that the complainant had purchased the truck for commercial purpose and, therefore, he is not a consumer under Sec. 2(1)(d)(i) of the Act. An objection regarding jurisdiction was also raised in respect of the answering opposite parties. It was submitted by them that Telco Manufactures diesel trucks and bus chassis with or without cab or body and sells the same and in the ordinary course of business appoints dealers for resale of its vehicles and the chassis within territories described in the respective dealership agreement with the dealers. It was submitted that Telco agrees to sell and deliver vehicles and chassis on principal to principal basis to the respective dealers appointed for different territories. Facts showing that the dealer acted as a principal were stated and reference was made to Clauses 1(a); 1(e), 11(a) and 21 of the dealership agreement. The answering opposite parties submitted that they appointed Standard Motors (opposite party No. 3) as their dealer for the district of Bikaner in the State of Rajasthan. According to them the privity of contract was between the complainant and opposite party No. 3. It was admitted that on telephonic talk with the zonal service representative of these parties stationed at Jaipur when during the telephone conversation the complainant was informed that the necessary action in the matter would be taken only after receiving the necessary report from opposite party No. 3. With respect to other facts, ignorance was pleaded. It was prayed that the complaint may be dismissed as the truck in question was booked and used for commercial purpose. As the version of the case on behalf of opposite parties No. 1 and 2 was submitted on 16.2.91 and it was not within 30 days from the date of service, it was not taken on record. In this connection order sheet dated 16.2.91 may be seen. No version of the case was also filed on behalf of opposite party No. 3.

The complainant has submitted his affidavit as well as affidavits of Jhanwar Lal and Punaram. Three affidavits of Badri Prasad, Bhanwarlal and Ramswaroop were submitted on behalf of the opposite parties. Besides the above oral and documentary evidence, there is no other evidence on record. Written arguments were submitted on behalf of the complainant as well as opposite parties No. 1 and 2 and opposite party No. 3. We have carefully examined the complaint, affidavits submitted by the parties and the written arguments.

THE objection raised on behalf of opposite parties No. 1, 2 and 3 is that the complainant does not fulfil the conditions mentioned in Sec. 2(1)(d)(i) of the Act, for, he has purchased the truck for commercial purpose and a person who purchases the truck for commercial purpose is excluded from the definition of consumer. On the other hand the case setup by the complainant is that he purchased the truck for his own use and, therefore, he is a consumer. We had occasion to examine the expression "Commercial purpose" in Smt. Pushpa Meena, Bundi v. Shah Enterprises and Others (1991 CMSR CAS 355), after considering I (1991) CPJ 330 (NC), I (1991) CPJ 499 (NC), I (1991) CPJ 44 (NC), I (1991) CPJ 140 and the two tests laid down in the last authority we are of opinion that the truck was purchased for commercial purpose. Reference may be made to Bhanwar Singh v. Manager Ishar Tractor Ltd. and Ors. (complaint case No. 113 of 1990 decided on March 9,1992 by the State Commission). THE case set up by the complainant is that he purchased the truck form opposite party No. 3 for Rs. 3,10,926/- and for this he had taken loan of Rs. 2,00,000/- from the Bank. It has further been stated in para 8 of the complaint that the truck has been lying out of service since 12.5.90 and it is with opposite party No. 3 since 18.5.90. It has not been repaired. He is suffering loss to the tune of Rs. 1,000/- per day. Apart from that in that very para it has been stated that on account of the truck being out of service he was not able to pay the instalment of Rs. 5,000/- per month for which he is required to pay interest and so the complainant is entitled to recover the instalments of Rs. 5,000/- per month for being deposited with the Bank. In para 9 of the complainant it is written that the complainant is suffering loss @ Rs. 1,000/- per day and so he has suffered loss of Rs. 84,000/- for 84 days and until and unless it is repaired, he will further suffer loss to the extent of Rs. 1,000/- per day. THE same has been reiterated in para 11 (kha) of the complaint. Learned Counsel for the complainant submitted an application on 19.9.90 praying for permission to repair the truck and to decide the complaint without delay. In para 3 of that application the complainant has stated that he has purchased the truck after taking the loan from the Bank and it is pilling up. On account of non- availability of the truck, he is without income and also unemployment and is not in a position to pay the loan of the Bank and a situation is likely to come when his children would die and the family is standing at the bank of destruction. In support of this application affidavit dated 17.9.90 was submitted by the complainant. Thus the affidavit is in support of the averments made in para 3 of the aforesaid application. THE affidavits submitted by the parties deponents are silent in regard to the purpose for which the truck was purchased by the complainant. Before examining this matter further it may be mentioned that when the truck was at Hyderabad on 1.5.90, its engine started giving sound about which information was given on phone to the opposite parties. Nothing has been stated as to why the truck was taken to Hyderabad from Rawatsar, Bikaner From the averments made in the complaint two things are very clear: (1) that the truck was purchased after borrowing a loan from the bank; and (2) that as the truck became unserviceable from 12.5.90 and since it was lying at the workshop of opposite party No. 3 from 18.5.90, the complainant was suffering loss of Rs. 1,000/- per day. It should not be lost sight of that definite averments have been made by the complainant that oh account of the truck being going out of order he has claimed Rs. 1,00,000/- as compensation on account of mental torture. It follows, therefore, that the claim for loss at the rate of Rs. 1,000/- per day is other than the compensation on account of mental torture which has been assessed at Rs. 1,00,000/-. This cannot be any other thing except that he had been deprived of the profits of Rs. l.000/- per day. Had the vehicle be en serviceable from 12.5.90 and onwards, he would have earned profits of Rs. 1,000/- per day i.e., Rs. 30.000/- per month. It was purchased by the complainant after borrowing a loan for earning profits on large scale. A perusal of paras 5, 7 and 11 (kha) shows that the complainant has claimed separately costs of tyre, tube, battery etc. besides the amount of instalments of Rs. 5,000/- per month payable to the Bank. In para 11 (kha) it is specifically mentioned that the complainant has suffered loss of Rs. 84,000/- so far for the vehicle being out of service and also would further suffer loss of Rs. 1,000/- per day. The registration certificate of the truck or the application submitted by the complainant for the grant of loan to the complainant for the purchase of the truck would have thrown considerable light on the question as to for what purpose the truck was purchased by the complainant. They have not been produced by the complainant. Having perused the complaint and the application submitted by the complainant, we are of opinion that the truck was purchased for commercial purpose. A person purchasing goods for commercial purpose is excluded from the definition of the consumer as given in Sec. 2(1)(d)(i) of the Act.

IT is clear that if the goods are purchased for using it in some profit making activity engaged in on a large scale and that there is direct nexus between the purpose of purchasing truck and the profit making activity with the object or aim to make profit then it is commercial purpose. See II (1991) CPJ 216, II (1991) CPJ 386, II (1991) CPJ 389, II (1991) CPJ 413 and II (1991) CPJ 617. The truck was purchased by the complainant for commercial purpose and, therefore, he is not a consumer within the meaning of Sec. 2(l)(d)(i) of the Act, and as such he cannot maintain the complaint. Even otherwise, the complainant has not succeeded in substantiating his claim made in the complaint. The complainant did not submit any affidavit with the complaint. He has, however, submitted his affidavit dated 31.7.91 which is to the effect that the vehicle was defective and that an unauthorised demand was raised by opposite party No. 3. Nothing has been stated about loss/compensation or in respect of the amount spent by him. Shri Jhanwarlal who has filed affidavit on behalf of the complainant has stated that opposite party No. 3 recovers amounts for defective vehicles unauthorisedly during guarantee period. The three affidavits filed on behalf of the opposite parties show that the allegations made against the opposite party by the complainant and Jhanwarlal are wrong. No documentary evidence has been produced by the complainant in support of the complaint. The affidavit of the complainant in support of the application dated 18.9.90 does not advance his case farther. IT is a casein which satisfactory evidence of the complainant is lacking. In the absence of any evidence, no reliefs as claimed by the complainant can be granted. On both counts, the complaint fails. The complaint shall stand .dismissed. There will be no order as to costs. Complaint dismissed.