P.T.CHINNASAMY vs Nagarjuna Finance Ltd.

THIS appeal is directed against the order dated 26th day of September, 1997 in O.P. No. 458/1994 on the file of the District Consumer Disputes Redressal Forum, Madurai.

THE appellant is the complainant while the respondents are the opposite parties. The facts may succinctly be stated in order to understand the crux of the issue arising for consideration in this action.

The complainant purchased a Lorry T.A.A. 7389 by entering into hire purchase agreement with the opposite parties, agreeing to pay a specified monthly instalment for a total period of 36 months. It is so happened the complainant committed default in payment of certain instalments and consequently, the lorry had been seized by the opposite party financiers.

THE complainant would say that the act of the opposite parties in doing so would tantamount to deficiency in service on their part. Alleging the factors as above, he knocked at the doors of the Forum below claiming certain reliefs as prayed for in the complaint.

THE opposite parties in pith and substance would contend that the complainant cannot at all be construed as a consumer qua the opposite parties on the facts and in the circumstances of the case and the complaint filed as such is liable to be dismissed. The Forum below after taking into consideration the materials placed on record, ultimately dismissed the complaint holding that the complainant cannot at all be construed as a consumer on the facts and in the circumstances of the case. Aggrieved by the order as above, the complainant resorted to the present action by engaging a Counsel of his choice namely learned Counsel M/s. B.K. Selvaraj.

ON service of process, the respondents/opposite parties entered appearance through a Counsel of his choice namely learned Counsel M/s. S. Venkatesan and Uma Venkatesan.

WHEN this matter came up for hearing before us today, learned Counsel representing the respondents/opposite parties were called absent and no representation was made on their behalf. The fact that there was no representation on behalf of the respondents/opposite parties does not mean that the appeal cannot at all be disposed of on merits, of course, after hearing learned Counsel appearing for the appellant and on perusal of the materials placed on record. Even at the outset we may point out that there are absolute no merits in this appeal. The Forum below dismissed the complaint as already indicated holding that the complainant on the facts and in the circumstances of the case cannot at all be construed as a consumer qua the opposite parties. This sort of a finding as recorded by the Forum below cannot at all be tilted on the face of the materials placed on record. No sufficient and adequate material had been placed on record to point out that the lorry in question had been purchased by the complainant with the sole purpose of eking out his livelihood in the sense of he himself being the driver of the vehicle. What is stated by way of incorporation of averments in the complaint is that the complainant and his family members are depending upon the earnings through the transport business of the lorry and they have no other sources of income except the income derived from this lorry. This sort of averments by themselves are grossly insufficient to point out that the complainant is a consumer falling within the explanation appended to Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 (for short, "the Act"). According to the said explanation, commercial purpose does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment. What is to be emphasised herein is the concept of self-employment. Nothing has been stated in the complaint as already indicated that the lorry had been purchased and he had been earning income for his livelihood by employing himself as a driver of the vehicle so purchased. Such being the case to say that he is a consumer cannot at all be acceded to on the facts and in the circumstances of the case.

Further it is not as if the complainant became the owner of the lorry in question. He had purchased the lorry by entering into hire purchase agreement with the opposite parties. Under the hire purchase agreement, the complainant is after all the hirer and the opposite parties are hirees/owners. Under the agreement admittedly in case of failure of remittance of monthly instalment, the hirees are entitled to seize the lorry and that sort of power the hirees/owners/opposite parties had been exercised in the lorry in question had been seized for non-payment of instalmental dues. That sort of seizure cannot at all be found fault with. Such being the case it cannot at all be stated that there is any deficiency in service on the part of the opposite parties financiers.

VIEWED from any angle, the complainant cannot at all be construed as a consumer falling under the purview of the Consumer Protection Act, 1986 (for short, "the Act"). As such the order of the Forum below in dismissing the complaint holding that he is not a consumer cannot at all be stated to be not sustainable in law. As such the appeal deserves to be dismissed. In fine, the appeal fails and the same is dismissed. We, however, make no order as to costs on the facts and in the circumstances of the case. Appeal dismissed.