SANJAY MOHAN VOLVOIKER vs SHRIRAM TRANSPORT FINANCE CO. LTD.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 26.09.2014, passed by the Goa State Consumer Disputes Redressal Commission, Panaji (hereinafter referred to as "the State Commission") in two cross appeals, First Appeal No. 31/2014 and First Appeal No. 32/2014 between the parties, vide which, the order dated 28.02.2014 passed by the District Consumer Disputes Redressal Forum in Consumer Complaint No. 79/2005, filed by the complainant, Sanjay Mohan Volvoiker, allowing the said complaint, was set aside and the consumer complaint was ordered to be dismissed.

Briefly stated, the facts of the case are that the complainant Sanjay Mohan Volvoiker is stated to be owner of two tipper trucks, bearing registration no. GA02T 9903 and GA09T 9903. The said trucks were purchased by the complainant in the year 1999 by raising loan from different finance companies and these were engaged by the complainant to run the business of transport of manganese and iron ore and gave on hire to a concern, called Timblo Minerals Pvt. Ltd. The complainant obtained two loans of Rs. 3 lakhs and Rs. 3.5 lakhs each to get the said trucks repaired under a loan-cum-hypothecation agreement with the opposite party (OP) Shriram Transport Finance Co. Ltd. The first truck bearing no. GA02T 9903 is the subject matter of complaint no. CC-79/2005, whereas, the second truck bearing no. GA09T 9903 is the subject matter of CC-91/2005. Both the trucks were repossessed by the OP from the complainant on 10.03.2005 due to the alleged non-payment of dues to the OP Finance Company. However, one of the trucks was released on 16.05.2005 after the complainant cleared the loan. The complainant filed consumer complaint no. 91/2005 on 05.10.2005 in respect of the truck released, which was decided by the District Forum on 31.07.2008 and a compensation of Rs. 70,000/- with interest @ 8% per annum and Rs. 5,000/- as litigation cost was awarded to the complainant. The appeal filed by the OP Finance Company before the State Commission was ordered to be dismissed and a further Revision Petition filed by the OP before the National Commission was also dismissed vide order dated 17.03.2001. However, complaint no. 79/2005 filed in respect of the first truck bearing no. GA02T 9903 was decided by the District Forum on 28.02.2014 and the following order was passed by them:-

" The opposite parties shall pay a sum of Rupees Fifteen lakhs to the Complainant towards the cost of Tata Tipper truck within thirty days of the order failing which the said sum shall carry an interest of 9% from the date of this order till its realisation. Once the said sum of Rupees Fifteen lakhs is received by the Complainant, the Complainant shall sign all necessary papers in order to transfer the said truck bearing no. GA-02-T-9003 which is presently in the custody of the Opposite Party, as per the request of the Opposite Party. Cost of Rs. 10,000/- shall also be paid by the Opposite Party to the Complainant."

Being aggrieved against the said order, both the parties filed appeals before the State Commission. The First Appeal No. 31/2014 filed by the complainant was ordered to be dismissed, but First Appeal No. 32/2014, filed by the OP Finance Company was allowed and consequently, the impugned order dated 28.02.2014 of the District Forum was set aside and the complaint was ordered to be dismissed with cost of Rs. 10,000/- to be paid by the complainant to the OP. Being aggrieved against the said order of the State Commission, the complainant is before this Commission by way of the present Revision Petition.

During hearing before this Commission, the learned counsel for the petitioner/complainant has drawn attention to a letter dated 11.03.2005 sent by the OP Finance Company to them, in which, it has been stated as follows:-

"You are hereby directed to pay an amount of Rs. 40,000/- (Rupees Forty Thousand Only) towards V. No. GA-02-T-9903 and Rs. 20,000/- (Rupees Twenty Thousand Only) towards V. No. GA-09-T-9903) within fifteen (15) days and thereafter your vehicles will be released from our custody/possession."

The learned counsel stated that although, there was default on their part in making timely payment to the Finance Company, on receipt of the letter dated 11.03.2005, they had deposited the sum of Rs. 40,000/- with the Finance Company and hence, cleared the default on the very next day i.e. on 12.03.2005. The said fact was borne out from a copy of the account statement as well, in which it was stated that a sum of Rs. 40,000/- was deposited by them on 12.03.2005. The OP should have released the truck following the receipt of the said amount, but on account of their failure to do so, there was deficiency of service on their part. The learned counsel stated that the vehicle was still with the OPs and had suffered lot of damage since then. The learned counsel has drawn attention to the photographs of the vehicle placed on record in support of his arguments. The learned counsel pointed out that the State Commission had wrongly observed that there was a liability of Rs. 3,24,057/- payable by the complainant to the OP as on 30.04.2005. Regarding the observation made by the State Commission that the said trucks were not meant to earn livelihood by the complainant for self-employment, the learned counsel stated that the complainant had clarified in para 16 of the complaint that the complainant had lost livelihood by means of self-employment and hence, the complainant fell within the definition of consumer.

Per contra, the learned counsel for the respondent Finance Company stated that the complainant did not come within the definition of ''consumer'', because the two trucks were purchased by him for commercial purpose only. As provided in the explanation to Section 2(1)(d) of the Act, the complainant could come under the category of consumer, only if the activity taken by him was for the purpose of earning his livelihood by means of self-employment. However, he had not clarified the said issue as per the material on record. The learned counsel argued that in addition to Rs. 40,000/- payable on 11.03.2005, some other amounts were held payable by the complainant and hence, the truck was not released after payment of Rs. 40,000/-. The learned counsel has drawn attention to an order passed by this Commission on 04.03.2014 in First Appeal No. 888/2013, Jasobanta Narayan Ram vs. The Branch Manager, L & T Finance Ltd . , saying that the purchase of two trucks by the complainant amounted to commercial purpose only. The learned counsel has drawn attention to an order passed by Hon''ble Supreme Court in Harshad Chiman Lal Modi vs. DLF Universal Ltd. & Anr., (2005) 7 SCC 791 , saying that the consumer fora did not have jurisdiction in the matter.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

The basic issue that requires consideration in the case is that the OP Finance Company, vide their letter dated 11.03.2005, directed the complainant to pay an amount of Rs. 40,000/- for the loan taken for the truck in question and Rs. 20,000/- for the other truck within 15 days of the said letter. It was also stated categorically that the vehicle will be released from their custody/possession, if the said amount was deposited by the complainant. In response to this letter, the complainant admittedly deposited sum of Rs. 40,000/- on the very next day i.e. 12.03.2005 as reflected in the statement of accounts. It is not understood, therefore, as to why the vehicle was not released by the OP Finance Company even after the receipt of the said amount. The learned counsel for the OPs has not been able to offer any reasonable explanation as to why the truck was not released after accepting the amount of Rs. 40,000/-. In the impugned order, the State Commission stated that there was liability of Rs. 3,24,057/- as on 30.04.2005. It is not understood how this liability was outstanding on 30.04.2005, when the complainant had cleared the amount of default. It appears that the State Commission had taken into consideration, the total amount outstanding against the complainant in terms of the entire loan. However, it was not justified to take the entire amount into consideration, once the amount in default had been cleared by the complainant.

The next issue for consideration in the matter is that the complainant purchased two trucks after raising loan from different companies in the year 1999. The subject matter of the present complaint is the loan taken from the OP Finance Company for the repair of the said trucks. It is also stated by the complainant that the said trucks had been given for the purpose of running business of transport of manganese and iron ore and given on hire to Timblo Minerals Pvt. Ltd. On the other hand, the complainant has taken the plea in the complaint that he lost his livelihood because of the action of the OP Finance Company in repossessing the truck. These facts are not sufficient to determine whether the complainant falls within the definition of ''consumer'' or not. The explanation to Section 2(1)(d) of the Consumer Protection Act, 1986 states as follows:-

"Explanation .- 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;"

It is clear that if the services availed by a person are exclusively for the purpose of earning his livelihood by means of self-employment, such a person does fall within the category of consumer, even if the purpose is commercial in nature. In the present case, the complainant has not been able to establish that the activity of running these two trucks was meant exclusively for the purpose of earning his livelihood. It is necessary, therefore, that sufficient evidence should be taken on record from the complainant and a categorical finding given whether the complainant falls within the definition of ''consumer'' or not in terms of the explanation to Section 2(1)(d) of the Act. The State Commission observed in their impugned order that since two commercial loans had been taken for repair of two trucks to carry on business of transportation of iron ore, the complainant did not come within the category of ''consumer'', because it is a commercial activity. It was the duty of the State Commission to have brought out clearly whether the complainant can get benefit of the explanation to Section 2(1)(d) of the Act or not.

It may further be stated that the District Forum, vide their order dated 28.02.2014, directed the OPs to pay a sum of Rs. 15 lakhs to the complainant towards the cost of the truck within 30 days. It is not understood how the District Forum arrived at a figure of Rs. 15 lakhs, considering the fact that it was an old truck, for which loan had been raised by the complainant for the repairs from the OP Insurance Company. In case, it is held that the complainant does fall within the category of ''consumer'' and it is also held that there is deficiency of service on the part of the OP Finance Company, the question of providing compensation to the complainant shall arise. The same shall then have to be determined by taking evidence from the parties regarding the valuation of the truck as on the date of repossession.

Based on the discussion above, this Revision Petition is allowed and the orders passed by the State Commission as well as by the District Forum are set aside. The case is remitted back to the District Forum to analyse and examine the facts of the case again and bring out clearly whether the complainant falls within the definition of ''consumer'' or not. In case, the complainant is held to be a consumer, the District Forum shall proceed to determine whether there was deficiency in service on the part of the OP Company in view of the fact that the said Company did not release the truck even after taking the outstanding amount of Rs. 40,000/-. In case, the said deficiency is also proved, the District Forum shall determine the amount of compensation payable to the complainant keeping in view the facts and circumstances of the case. The parties have been directed to appear before the District Forum, South Goa on 29.05.2017 for further proceedings.