T.M.EAPEN vs JAINA AUTOMOBILES,COCHIN

THE case of the complainant can be summarised as follows. He had booked in advance through the 1st opposite party, an authorised distributor of the second opposite party a total number of 177 Bajaj Rear Engine Autorickshaws manufactured by the second opposite party, at various points time between 19.8.1982 to 8.7.1986. THE first lot of 67 vehicles were booked in 1982 and 1983 after lodging fixed Deposit Receipts for Rs. 250/- per vehicle. From 1984 the 2nd opposite party raised the advance amount to Rs. 500/- per vehicle to be paid in the form of demand draft of Schedule Banks payable to them. THE complainant booked 10 autorickshaws in 1984 and the third lot of 100 autorickshaws in 19 (50 in his own name and 50 in the name of his wife for which he had acquired power of Attorney from her) after satisfying the new stipulation of payment of Rs. 500/- as advance per vehicle as demand draft. According to the complainant he noticed on 7.6.1989 an advertisement in the newspapers by the 2nd opposite party that "the autorickshaws already booked would be delivered without any delay by their agents and that even persons who were not in the register of priority in the advance booking would be offered the vehicles according to availability of stocks". He deputed one Mr. A.R. Raju on his behalf with necessary power of Attorney and other documents to take delivery of the autorickshaws under priority number 1643 of 19.8.1982. THE complainant alleged that the 1st opposite party did not deliver the vehicle in spite of Mr. Raju''s request for that after presenting the requisite papers. Not only that - they delivered a new Bajaj Auto to Mr. Raju in his own name, overlooking the advance booking and priority order made by others including the complainant. According to the complainant this was done by the opposite parties to get undue financial gain at the cost of consumers. THErefore he cancelled the advance booking of all the 177 autorickshaws made by him. On surrendering the connected documents he was refunded the advance money paid but without any interest. Now he has approached this Commission with a claim for Rs. 5,97,970/- under different heads including losses for non delivery in time, interest and damages for mental strain etc.

THE opposite parties in their versions and through the pleadings made by their Counsel have denied the allegations. According to them the complainant''s motive was nothing but Commercial, to earn profit by way of premium on resale as evidenced by advanced booking of autorickshaws in bulk. THEy challenged that the complainant is not a consumer as defined in Section 2(1)(d)(i) of the Consumer Protection Act, 1986 and hence adjudication upon the complaint will be beyond the jurisdiction of the Commission. They also plead they had informed all customers including the complainant who had made advance booking of vehicles to take delivery of them when they were ready for sale in 1986. They aver that through advertisements in newspapers sometime in 1986 they had informed all customers to contact the respective dealers for early delivery. Through the said advertisements they had also passed the information that even customers who had not made advance booking of autorickshaws might also get delivery of vehicles depending on the availability of stocks. The 1st opposite party admits that they have delivered a vehicle to the said Raju who had not booked that in advance. Regarding the allegation of non delivery of autorickshaw bearing priority number 1643 the stand of the opposite party is that Raju who was deputed by the complainant did not ask for the delivery as alleged. According to the Counsel for the opposite party the complainant was deliberately not taking delivery of the vehicles since the chances for resale were less consequent on the appreciable increase in production and easy availability of them.

The main issue to be decided is whether the complainant is a consumer as defined under Section 2(1)(d)(i) of the Act and whether the Commission can exercise its jurisdiction in relation to this particular complaint. Section 2(1)(d)(i) reads thus: "Consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any use of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose."

THE circumstances of the case, the conduct of the complainant in booking 177 autorickshaws after paying in advance an appreciable amount cancelling all the orders when the dealers began to supply vehicles even to those without advance booking and approaching the Commission for losses and damages - all these are pointers that compel the conclusion that the complainant had a commercial eye on the transaction and that his motive was to earn some margin on resale. THE conduct of the complainant in not appearing in person or through an authorised agent and not giving oral evidence to support his pleas in response to the opportunity offered by the Commission further strengthens the above conclusion. THE complainant does not appear to us to be the innocent consumer whose interests are to be protected against exploitation under the Consumer Protection Act. We are of the strong view that complainants like the one under reference should not be given any berth or succour by Consumer Disputes Redressal Agencies. We feel that the, complainant does not constitute a consumer as envisaged in the Consumer Protection Act and hence the complaint does not attract the jurisdiction of the Commission. THErefore, the complaint is dismissed. THEre will be no order as to costs. In the circumstances of the case we are not entering into the merits of the other issues raised. Complaint dismissed.