INDIAN AIRLINES vs B.S.VERMA

THIS appeal has been filed against an order dated 13.11.1995 of the Consumer Disputes Redressal Forum-II by which it held that the appellant was deficient in service to the respondent and accordingly directed it to refund Rs. 39,600/- within interest at the rate of 15% per annum and also to pay Rs. 2,000/- as compensation /costs of the proceedings in two months.

THE brief facts leading to the present controversy are that the appellant, Indian Airlines had notified a proposal for disposal of some items including vehicles in a press release. One of the item was a Standard Micro Minibus (1983 Model) bearing No. DED-5314. This vehicle being case property in FIR No. 653/86 was on superdari with the appellant. However, in the advertisement published for the disposal of this vehicle, the factum of snperdari was not mentioned. But just before the auction/the bidders were informed of this fact orally with the assurance that the buyer will have to appear before the concerned Magistrate only for a few minutes and they would complete the formality of transfer of superdari in favour of the buyer. THE respondent hardly had any time to think over but at the same time he participated in the auction on the basis of the representation. THE respondent was the highest bidder and he paid Rs. 10,000/- on the date of the auction i.e. 5.9.1993 and the remaining amount of Rs. 29/000/- on 13.9.1993. Despite several visits to the Court of learned Magistrate, the superdari could not be got transferred by the appellant in his favour. THE respondent, therefore, asked for refund of the amount while the appellant threatened to forfeit the same and further levy ground charges. THE application for superdari was rejected by the learned Magistrate during the pendency of the complaint. THE short question, therefore, is whether the appellant was entitled to forfeit the amount or refund the same to the respondent. We have heard arguments advanced on behalf of the parties. The first contention raised on behalf of the appellant is that the respondent by no stretch of imagination could be called a "consumer" as per the definition given in Section 2(d) of the Consumer Protection Act (hereinafter called the Act) and the sale of second hand vehicle could not be termed a "service" as defined in Section 2(1)(o) of the Act. Moreover, after purchase of the vehicle, the respondent was to use the same for commercial purpose and for this reason also the respondent could not be deemed to be a "consumer". We do not agree with the contention raised on behalf of the appellant. We are at this stage to look only into the fact whether the vehicle offered for sale by auction by the appellant was in the nature of service to be provided by the appellant. The subsequent use to which the vehicle was likely to be put is not the relevant consideration at this stage for two reasons. First of all, it could not be said whether the respondent was to put this vehicle to use for commercial purpose. Secondly it is possible that the respondent after purchasing the vehicle would use this vehicle exclusively for the purpose of earning his own livelihood by means of self employment. The explanation to Section 2(d)(ii) added by the amending Act 50 of 1993 clearly excludes a user by a person of any goods from commercial purpose for the purpose of earning one''s own livelihood by means of self employment. Therefore, there is nothing on record to show that the respondent would have put this vehicle to use after purchase for a commercial purpose and not for earning his own livelihood by self employment. Also, me sale by public auction is included in the definition of service as defined in Section 2(1)(o) of the Act/ which means service of any description made available to potential users. Therefore, we do not find any merit in this contention. Then it may be noted that in the advertisement for sale of this vehicle by auction it was not clarified by the appellant that it is a case property involved in some criminal case. The respondent was taken unaware of this fact at the time of auction when it was so disclosed. At that time it was also made to appear that the transfer of superdari of the vehicle would be a matter of few minutes only and, therefore, the respondent was taken in for bidding for this vehicle. He was the successful bidder and deposited a substantial amount with the appellant. The fact remains that the learned Magistrate even rejected the joint application of the parties for transfer of superdari in favour of the respondent. The respondent cannot be blamed solely on this account. In fact, it was the responsibility of the appellant. Since the application for superdari stands rejected and we are not informed if the appellant has taken any further steps in this direction, the transaction having fallen through, the respondent is entitled to the refund of his amount. We, therefore, do not find any merit in this appeal and the order of the Consumer Forum is upheld. The appeal is dismissed with costs which are quantified at Rs. 500/- in the appeal. The appellant is directed to comply with the order of the learned Forum alongwith payment of costs in appeal within four weeks. Appeal dismissed with costs.