SANGEETA RANE vs TATA TELCO

BY the impugned order passed on 6.11.2001 in Complaint Case No. 224/2001, the District Forum, Bhopal has refused to entertain the complaint relegating the complainant (appellant herein) to her remedies under the general law, that is by way of civil suit. The complaint was regarding some defects in new Tata Diesel Truck of SFC 709/38 lb model purchased by appellant from respondent No. 3, the authorized dealer of Tata Telco, the manufacturer of the said truck represented by respondent Nos. 1 and 2 herein. According to the complainant, the truck was purchased for her self-employment and that the truck suffered with a number of defects which could not be removed by the respondents despite the truck being handed over to them in number of times. The complaint was resisted by the respondents on merits as also on the ground that the truck in question was purchased for commercial purpose and as such the dispute between the parties did not fall within the ambit of consumer dispute as provided by the Consumer Protection Act, 1986. The Forum below upheld the objection of the respondents and passed the order which is under challenge in this appeal.

WE have heard Mr. Pankaj Khare, learned Counsel for the appellant and Mr. G.S. Parmar, learned Counsel for the respondents. It is a case of purchase of goods which according to the complainant suffered with some incurable defects. It was rather a case, asserted the complainant, of fraud being played on her by respondent No. 3 in selling some old truck under the garb of new truck. Before this complaint of the appellant could be entertained, she was required to show that she was a consumer as defined under Clause (d) of Section 2(1) of the Act. Sub-clause (i) of Clause (d) deals with purchase of goods for consideration by a consumer but excludes a person who obtains such goods for resale or for any commercial purpose. The words "but does not include a person who obtains such goods for resale or for any commercial purpose" have been added to the said definition by the amendment of 1993 w.e.f. 18.6.1993. However, an explanation has also been added to the said definition which after the amendment of 2002 provides that for the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment. The expression and words "commercial purpose" and "earning his livelihood by means of self-employment" came up for interpretation by the Apex Court in the case of Laxmi Engg. Works v. P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)=AIR 1995 SC 1428, and it was held: "..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.."

[Emphasis supplied]. (p. 1432)

The Apex Court by giving a few illustrations explained the position as follows: "...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/held him in operative the vehicle or machinery, he does not cease to be a 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 expressions ''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." (p. 1432)

DISPELLING the arguments that such a narrow construction may not be warranted by the scheme and object of the enactment, the Apex Court observed: ''While there is certainly some logic in the said submission it cannot be accepted in view of the language of the explanation''. It will be thus seen before the appellant could be termed as a consumer it must be shown that the truck in question was used by her exclusively for the purpose of earning her livelihood by means of self-employment.

ADVERTING to the pleadings and the evidence led by the appellant-complainant in the instant case, it is seen that beyond making a bald statement in her complaint and affidavit that the truck was purchased by her for her self-employment, no further details are supplied by her as to how that truck was being used by her. She even did not state that by plying the said truck, she wanted to earn her own livelihood. What role she was playing in plying the said truck, is neither pleaded nor proved in evidence. It is also not clear whether she had any experience in plying a truck or in running the said business of transport. Her husband is an employee of the State Electricity Board and obviously he could not associate himself in the said business of transport. The possibility of her husband having purchased the said truck Benami i.e., in the name of complainant-wife could not be ruled out. Be that as it may, the fact remains that the complainant was unable to establish that she was a consumer within the meaning of Section 2(1)(d)(i) of the Act. The Forum below rightly declined to grant any relief to the complainant and we see absolutely no reason to take a different view. This appeal thus fails and is dismissed. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with the record of the case. Appeal dismissed.