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Judgment
The present Revision Petition has been filed against the order dated 14.11.2019 in FA No. 28 of 2018 against the order of District Forum dated 28.02.2014 in Complaint No.79 of 2005. The present revision petition has been filed by the complainant.
The admitted facts of the case are that complainant had purchased two trucks. He filed two complaints simultaneously before the District Forum for deficiency in service against the opposite party. In both the complaints, he claimed to have purchased trucks for earning his own livelihood. One of the complaint was allowed and he was paid compensation. The Second complaint being No. 79 of 2005 was also allowed by the District Forum vide its order dated 28.02.2014. Both the parties challenged this order. The opposite party filed Appeal no. 31/2014 and the complainant also filed Appeal no.32 of 2014. Both these appeals were disposed of vide order dated 26.09.2014 and the order of the District forum was set aside and complaint was dismissed. Against this order of the State Commission, the complainant had filed revision petition No. 4290 of 2014 before this Commission. This revision petition of the complainant was disposed of by this Commission vide order dated 28.04.2017. Following directions were issued:
“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.”
Against these directions, the complainant filed an SLP ( C) No. 18006/2017 which was dismissed by the Hon’ble Supreme Court vide order dated 21.07.2017 in limine. This order of the Hon’ble Supreme Court confirms the directions of this Commission dated 28.04.2017 whereby this Commission had directed the District Forum to give its findings on the issue whether complainant was a consumer or not.
Parties led their evidences before the District Forum. The complainant also filed an application Under Order 6 Rule 17 CPC which was also allowed. Vide this application, complainant had pleaded as under:
“The complainant states that the Complainant and his father namely Mohan Gangadhar Volvaikar are the professional drivers, the subject tipper truck was purchased in the name of the complainant as there was no income tax returns and other documents required to purchase the truck in the name of the father of the complainant. Therefore, the subject tipper truck is purchased in the name of the complainant for the livelihood of the father of the complainant and the father of the complainant is having valid driving license from the year 1962 to till date and gate pass for entering in the company the said vehicle is all the time driven by the father of the complainant for his livelihood and at any time the said vehicle is not driven by other than the father of the complainant, the complainant rely upon the driving license of the father of the complainant and gate pass issued by the mining company to the father of the complainant.”
The District Forum after perusing all the evidences including additional evidences of the parties and also the amendment which the complainant had made vide application under Order 6 Rule 17, dismissed the complaint holding that complainant was not a consumer. This order of the District Forum was impugned by the complainant before the State Commission by way of Appeal No. 28 of 2018 and the State Commission after hearing the complainant, perusing the record and also hearing arguments of the respondent, dismissed the appeal concurring with the order of the District Forum and held that complainant is not a consumer.
This order has been impugned before me by the complainant. It is submitted that State Commission in the impugned order has not considered the additional evidences which had been led by the complainant and has relied on the complaint and the earlier affidavits of the complainant. It is also argued that said truck had been purchased by the complainant for his father who is a qualified driver holding valid driving license since long and that earlier to purchase of this vehicle, he was driving the vehicle of others and, therefore, the State Commission has failed to consider this vital aspect of the case. There is illegality and infirmity in the impugned order and the order is perverse and is liable to be set aside.
My attention is drawn to various orders and documents. It is argued on behalf of the respondent that complainant has clearly stated in his complaint that he had purchased the truck in order to run the business of transport of manganese ore and iron ore. It is also argued that nowhere in the complaint, the complainant has mentioned that he had bought it for livelihood of his father nor he had alleged that he had purchased it for his livelihood and that complainant had only mentioned that due to the act of the opponent, he had lost the livelihood. It is submitted that whatever amendments have been done, it has been done in order to fill the loopholes in the complaint. It is argued that Explanation to Section 2 (1) (d) of the Consumer Protection Act, 1986 ( in short, the Act) is applicable only to the complainant and not to the third person. So even if it is presumed that truck was bought for livelihood of his father, it was not bought for the livelihood of the complainant and, therefore, the complainant is not a consumer and there is no illegality or infirmity in the impugned order. It is submitted that State Commission has duly considered all the evidences on record and, therefore, there is no perversity in the impugned order.
I have heard the arguments and perused the record. Vide order dated 28.04.2017 of this Commission, the District Forum was directed to give findings on the issue whether complainant was a consumer or not.
Following the dictum of this Commission, the District Forum confined its findings only on the preliminary issue as to whether the complainant was a consumer or not and District Forum concluded that complainant was not a consumer and the State Commission vide impugned order, concurred with the findings of the District Forum.
A ‘Consumer’ has been defined in Section 2 ( 1) (d) of the Act as under:
“(i) 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 user 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; or
(ii) hires or avails of any services 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 beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
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.”
(emphasis mine)
It is, therefore, clear that whosoever avails or buys goods for commercial purpose, is not a consumer. There is, however, an Explanation added to this provision which contains that if the services are availed or goods are purchased exclusively “for the purpose of earning livelihood by means of self employment, such a purchase of goods cannot be said to be for commercial purpose”. Keeping in view this clear definition of ‘consumer’ given in the Act, it is clear that complainant is required to prove that he purchased the truck in question for his own use and for earning his livelihood. As per the admission made in the complaint and also amendments brought on record in the form of Order 6 Rule 17 application, it is apparent that complainant had purchased the truck not for his own use but for the use of his father. In the complaint, he has pleaded that it was for the business of transport. It seems that both father and son are running business of transport and that is why in order to fill the loophole, it was averred that truck had been purchased for livelihood of his father by way of an amendment in complaint. It is clearly an afterthought. Even otherwise, there is no pleading that it was purchased by the complainant for his own livelihood.
It is settled proposition of law as held by “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269”, while exercising the revisional jurisdiction, this Commission is not required to act as an Appellate Court and re-assess or re-appreciate the evidence. It only has to see whether the Fora below have exercised their jurisdiction properly and there is no perversity.
As discussed above, findings of the Fora below are based on the evidences and contentions on record. I found no perversity, illegality or infirmity in the impugned order. Revision Petition has no merit. Same is dismissed.