Tata Engineering and Locomotive Co. Ltd. vs Gajanan Y. Mandrekar

IN this First Appeal No. 784 of 1994 Tata Engineering & Locomotive Co. Ltd., and M/s. Narcinva Damodar Naik are appellants Nos. 1 and 2 respectively and Gajanan Y. Mandrekar is the respondent. Briefly the facts of the case are that respondent, who is a civil contractor by profession and is also an experienced driver for heavy vehicles, booked a tipper truck for the purpose of using it to earn his livelihood, with M / s. Narcinva Damodar Naik, who are the agents of M/s. Tata Engineering & Locomotive Co. Ltd. On the basis of a quotation from the petitioners for a price of Rs. 4,30,771/- for Model SK 1210/36, he made a part payment of Rs. 50,000/- on 7.5.91; the balance price was to be paid later but before the delivery of the tipper truck. On 22.8.91 the appellants issued another quotation for the same type of vehicle at an enhanced price of Rs. 4,62,855/- against which the respondent protested. He was, however, informed by the 2nd appellant that the price increase was effected by the manufacturer, the 1st appellant and if he was not willing to pay the increased price, the vehicle booked by him will be allotted to another customer. Having no choice the respondent paid the balance of the enhanced price viz. Rs. 4,12,255/- through the Goa Urban Co-operative Bank Ltd., with whom he had negotiated a loan when he booked the order with the appellant No. 2. The complaint of the respondent was that the appellant had sufficient stock of the type of vehicles which he had booked, but the delivery to him was delayed by the appellants and finally a tipper truck of a different model, namely, SK12108/36 was delivered to him on 9.12.91. The respondent also alleged in his complaint before the State Commission that the model which was given to him was different from what he had booked, was of a higher price and right from day one it did not give him satisfactory service as it had many manufacturing defects, the number of which he listed in his complaint as 22. The respondent, therefore, claimed interest by way of compensation on the loan obtained by him from the Bank and Rs. 1 lakh for loss of his income. He further claimed Rs. 32,084/- being the payment towards increase in price and also Rs : 30,000/- for the worn out tyres. He also claimed the replacement of the vehicle with a new one and that too of the same model which he had booked initially.

THE Maharashtra State Commission examined the complaint of the respondent herein and appointed Shri Y.S. Kathath as a Commissioner to report on the defects, if any, in the vehicle. Shri Kathath submitted his report of inspection of the vehicle, dated 10.4.93, wherein he stated that the vehicle was inspected with due notice to both the parties and that it had manufacturing defects. The appellants herein opposed the complaint on the ground that the tipper truck was purchased by the respondent for commercial use and, therefore, he being not a consumer cannot bring this complaint under the Consumer Protection Act, 1986. For this purpose they indicated that the respondent was a civil contractor having PW Registration numbers and that his gross earnings for the period of two years and 4 months from 15.4.92 to 31.8.94 from this tipper truck amounted to Rs. 7,06,278/-. The State Commission, Maharashtra, after examining the contentions of the respondent and the appellants herein, held that the respondent was a consumer and had bought this tipper truck for his self-occupation to earn his livelihood and further that this tipper truck had the manufacturing defects as pointed out in the report of the Commissioner appointed by them. Having arrived at this conclusion, the Maharashtra State Commission allowed the complaint of the respondent and directed the appellant Nos. 1 and 2 to refund to the respondent the total amount of Rs. 4,62,855/- paid by him, together with interest from 28th July, 1992 till payment. It directed the respondent to deliver the tipper in question to the appellants at Goa in the present condition on receipt of the payment of the amount so awarded. The respondent was also awarded Rs. 1,000/- as costs of his complaint. It is against this Order of the Maharashtra State Commission dated 29.9.94 that M/s. Tata Engineering & Locomotive Co. Ltd., appellant No. 1 and Mr. Narcinva Damodar Naik, appellant No. 2 have come in appeal before us.

The first question to be decided is whether the respondent is a consumer, in the sense whether he bought this truck for commercial purpose or self-occupation. In support of their contention that the respondent bought this truck for commercial purpose, the appellants have mentioned his gross earnings from the use of this tipper truck at Rs. 7,06,278/- for the period of approximately 28 months. The gross earnings in transport business do not provide a precise idea of the profits earned by the transporter. However, on a rough and ready basis the transport trade assumes that half of the gross earnings are spent in running a truck and providing for its depreciation. Then, there is interest on the amount invested in the purchase of truck. In this regard it is to be noted that the respondent had borrowed funds from the Goa Urban Co-operative Bank Ltd., through whom the payment was made to the appellants. Half of Rs. 7.06 lakhs would come to Rs. 3.50 lakhs. This amount for a period of 28 months would give a monthly income of about Rs. 13,000/-, (including interest to be paid on the borrowed funds) which, by no means, can be taken, in the present day circumstances, an income from even a small scale commercial operation. As regards the argument that the respondent was a registered civil contractor with the PWD, it has been stated on behalf of the respondent that though he was a Grade 5 Registered PWD contractor, he had no work from them for the last few years and further that the work which he got as Grade 5 Contractor is of petty nature. It may also be noted that the appellants have not produced any document indicating the income tax assessment of the respondent which could have given an indication of his total income.

THE State Commission taking note of the explanation added to Section 2(1)(d) of the Consumer Protection Act, which defines ''commercial purpose'', and after considering the facts of this case, particularly the fact that the respondent is a qualified driver for this type of vehicle came to the conclusion that he bought it for self- occupation to earn his livelihood. And hence he was covered within the meaning of Section 2(1)(d) of the Consumer Protection Act. We agree with this conclusion of the State Commission. As regards the complaint that there was a delay in the delivery of the vehicle in question and that he was given a vehicle different from the one he had booked, we find that the appellants have not been able to rebut it adequately. There is a letter on record dated 6.6.91 bearing No. VS / 8/6(Veh) sent by the appellants to the respondent asking him to send the balance amount of Rs. 3,96,132/- and stating that in case this payment did not reach them before the stipulated time and before the arrival of the chassis, the tipper will be allotted to the next customer on the waiting list. The subject of this letter is "Order for one No. 12102/36 TATA tipper". On the copy of this letter which has been placed by the appellants on record there are notes by their office and one of the notings indicates "wants only SK/36(N)". Another noting indicates "Price increased. Letter sent on 29.6.1991." The noting that "wants only SK/36(N)" is significant because the contention of the respondent throughout in his complaint before the Maharashtra State Commission has been that he booked SK/ 36(N) and not really 1210B/36 which was finally delivered to him. Be that as it may, we are not concerned so much with the type and model of the truck delivered to the respondent, as to the fact whether the truck which was delivered had any manufacturing defects. The State Commission, Maharashtra, had appointed a Commissioner who gave its report in regard to the defects pointed out by the respondent. The argument of the appellant that the Commissioner was appointed without their consent has no force as we do not find anywhere on record that they protested about the appointment of this Commission or that it was not with their consent. It is also stated in the Order of the State Commission that the Commissioner Shri Kathath, inspected the vehicle with due notice to both the parties. From a perusal of the record we notice that 15 specific defects were listed by the learned Advocate of the respondent in his letter dated 4.7.92 to the appellants as regards the functioning of this vehicle. Taking all the circumstances into account, including the report of the Commissioner, we are convinced that this vehicle was defective. The vehicle had been used for 32,000 kilometers at the time of complaint before the State Commission, which increased to 65,215 kilometers on 10.4.93. The kilometers done by a vehicle of this type are not a conclusive proof that it had no defect. It is quite well-known that even defective vehicles do run, of course with frequent repairs. We also see no merit in the argument that the truck should have been sent to an appropriate laboratory for inspection under Section 2(1)(a) of the Consumer Protection Act, 1986, rather than being inspected by a Commissioner appointed by the Maharashtra State Commission. It has been argued on behalf of the appellant that the Inspector was appointed by the State Commission at the instance and at the behest of the respondent and, therefore, cannot be regarded as an appropriate laboratory within the meaning of Section 2(1)(a) of the Consumer Protection Act. Nothing has been produced before us to show that he was appointed against the wishes of the appellant and without their consent. That being so, we do not see any merit in this argument. In view of what has been stated in the preceding paragraphs we find that this appeal has no merit, and, therefore, we dismiss it with no order as to costs. Appeal dismissed.