ANUP SHARMA vs LEKH RAM

BY this complaint, the complainant has prayed that the respondents be directed to indemnify the complainant by paying him Rs. 5,27,100/-.

THE brief facts which give rise to the points in controversy between the parties are that the complainant took truck No. HP-18-4821 from the respondents No. 1-3 vide lease deed dated 21.10.1995 for one year from l6.8-1995.THE lease deed was executed by one Shri Lekh Ram, Secretary of the respondent No. 3 i.e. Adarsh Transport Society, Sangrah and Rs. 42.000/- was paid to the respondents No. 1 -3. THE rent agreed to be paid to the respondents was Rs. 11000/- per month. As the time of lease this truck was in a damaged condition and that the Bank official with whom the truck was financed were about to attach the vehicle. In order to make the truck road-worthy, the complainant spent Rs. 66,100/- and purchased various parts as enumerated in para-6 of the complaint and thereafter the truck became operational. THE complainant made huge investment to make the truck operational as he was unemployed and he started running the truck. On 15.4.1996, when this truck was full with diesel of Rs. 1,751/-. respondent Nos. 1 to 3 with dishonest intention took away the truck from Dadahu and complainant''s driver and thereafter the complainant lodged the FIR. According to the complainant he has suffered various losses by making investment in the truck and incurred huge losses and he has claimed in para-13 Rs. 5,27,100/- alongwith interest @ 18%.

The complaint has been resisted on various grounds by the respondent Nos. 1 to 3. According to them, the complainant is not a consumer. On merits, it has been stated by them that Shri Lekh Ram, respondent No. 1 was neither a member of the Society nor was he employed as Secretary of the Society and in case he has entered into the contract of lease with the complainant such a lease is without any authorisation of the Adarsh Transport Society. As a matter of fact, one Shri Kanthi Ram s/o Shri Rati Ram was the Secretary of respondent No. 3 i.e. Adarsh Transport Society, Sangrah. In fact, respondent No. 2, Shri Inder Singh, President of the Society was solely responsible to manage the affairs of the Society and no other person had any right to enter into any contract for or on behalf of the Society. Further, the truck had been in very good condition in the year, 1996 and there was no occasion of investment for repairing the truck by the complainant to make it functional. Further, it is imp robable to take on lease a truck at a rent of Rs. 11000/- per month as alleged.

ACCORDING to the respondents, truck had been in the custody and possession of the respondent No. 2 i.e. Shri Inder Singh, the President of the Society, who was plying the same with the help of his own driver Shri Chattar Singh, resident of Saton. The truck was never taken with dishonest intention on 15.4.1996 as alleged. ACCORDING to the respondents, the truth is that truck was sold by the respondent No. 2 to respondent No. 4 on 17.4.1996 at Sangrah for consideration of Rs. 3,65,000/- and possession of the truck was delivered to him on the same day in the afternoon at Sangrah. After getting the sale deed executed, the respondent No. 4 took the truck enroute to his place passing through Dadahu where the police station is located and thereafter the complainant who is a son of a Police Officer manipulated a false report and got it registered at Dadahu in the night at 4.15 p.m. The truck was recovered from Bhup Pur village where respondent No. 4 had taken the same for repairs. No doubt, the complainant filed a revision petition before the Hon''ble High Court and the High Court has ordered the release of truck to Shri Krishan Lal, respondent No. 4 to whom the truck has been sold. The case, however, has not been decided by the High Court on merits. Mr. Rattan Singh, learned Counsel for the respondents has raised two preliminary objections. According to him, the complaint is not maintainable, as the complainant is not a consumer. Further, highly disputed and complicated questions of facts arise in this case and these facts cannot be resolved in these proceedings.

WE have considered the submission and in our opinion, both the objections are well founded. The learned Counsel for the complainant Mr. Ratish Sharma, however, tried to meet the objections that the complainant is not a consumer by relying upon the explanation added to Section 2(d)(i) of the Consumer Protection Act, 1986 (hereinafter to be referred to as the Act). He drew our attention to para-8 of the complaint wherein it has been stated that the complainant being unemployed, started running the truck which had been taken on lease. Much emphasis was laid by him on the use of word "unemployed" with a view to bring his case within the ambit of definition of explanation added to Section 2(d)(i) of the Act. He has also relied upon a case Cheema Engineering Services v. Rajan Singh, decided by the Supreme Court reported as 1997 NCJ 1998. Such a submission has no force at all. In Revision Petition No. 3 of 1993, Sunita Rana v. M/s. Modem Automobiles, decided on 8.8.1996 and Appeal No. 53 of 1997, M/s. Surya Flour Mills v. M/s. New India Manufacturing Company, we have examined the scope of the explanation added to Section 2(d)(i) of the Act. It would be relevant to refer to the explanation added to Section 2(d)(i) of the Act, which may be reproduced below : "For the purpose of Sub-clause (i) commercial purpose does not include use by a consumer of the goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self- employment."

The explanation reduces the question that what is a commercial purpose as a question of fact to be decided in the facts and circumstances of each case. The goods purchased by a consumer in a normal course for the commercial purpose will cease to be for commercial purpose : (i) if the consumer purchases such goods and uses it by himself; (ii) xclusively for the purpose of earning his livelihood; (iii) by means of self-employment.

At the very outset, it may be stated that no foundation at all has been laid down by the complainant in his complaint of the requirements which should satisfy the test of the explanation added to Section 2(d)(i) of the Act, as discussed above. Furthermore, no satisfactory evidence has been led to substantiate that the case of the complainant falls within the definition of explanation as added to Section 2(d)(i) of the Act. The reliance placed by the Counsel for the complainant on the case of Cheema Engineering Services (supra) is also mis-placed. The case cited is not a case of purchase or lease of a truck, but is of the machine "brickman" for clay preparation, brick moulding, brick drying and brick burning etc. and in that context, the Supreme Court has observed that: "......... Self-employment connotes altogether a different concept, namely, he alone use the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. ''He'' includes the membersofhisfamily............."

The present case is not a case in which the truck was being plied by himself or by other members of the family. On the other hand, a copy of the FIR filed alongwith the complaint reveals that the complainant was having the services of one Shri Jaipal Driver who was not a member of the family of the complainant.

IN this connection we may also refer to a case of Laxmi Engineering Works v. P.S.G. INdustrial INstitute, reported as (1995) 2 SCC 583=II (1995) CPJ 1 (SC), wherein the Supreme Court while interpreting the explanation added to Section 2(d)(i) of the Act, has observed in case of buying of goods including motor vehicle for self employment which will have a direct bearing on the present case. The relevant observations may be reproduced below : xxx xxx xxx xxx "The several words employed in the explanation, viz., "uses them by himself", "exclusive for the purpose of earning his livelihood" any "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. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. 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/ help him in operating 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."

....It is argued by the learned Counsel for the appellant that such a narrow construction may not be warranted by the scheme and object of the enactment. He says that there may be a widow or an old or invalid man who may have no other means of livelihood and who purchases an auto- rickshaw or a car or other machinery to be plied or operated by another person either on payment of consideration on a daily, weekly or monthly basis or as a servant or agent. While there is certainly some logic in the said submission it cannot be accepted in view of the language of the explanation."

IN view of the observations made by the Hon''ble Supreme Court when the vehicle was driven by another person, it cannot be held by any stretch of imagination that the case of the complainant is covered under the explanation added to Section 2(d)(i) of the Act. The case also involves highly disputed and complicated questions of facts which involves production of voluminous oral as well as documentary evidence. There is nothing to substantiate that Shri Lekh Ram, respondent No. 1 is the Secretary and he had the authority to enter into a lease with the complainant. Further there is nothing to show that respondent No. 2 Shri Inder Singh was solely responsible to manage the affairs of the society and no other person had any right to enter into any contract for or on behalf of the society and again, whether or not the truck was in good condition and that the complainant had made huge investment as claimed by him. Even the purchase of the truck by respondent No. 4 from respondent No. 2 is doubtful. Even the so-called compensation claimed by the complainant cannot be decided in these proceedings as it involves voluminous oral as well as documentary evidence. Almost all the questions raised by the complainant have been vehemently denied by the respondent. Since the matter involves highly disputed and complicated questions of facts which cannot be resolved in the summary proceedings, the appropriate remedy is the Civil Court.

In the light of foregoing, there is no force in this complaint and the complaint is dismissed with costs. The cost is quantified at Rs. 500/-. However, the complainant shall be at liberty to move the Civil Court for the redressal of his grievances, if otherwise permissible under the law. Complaint dismissed with costs.