- (1.) BY this appeal under S. 15 of the Consumer Protection Act, 1986 (Act No. 68 of 1986) opposite party No. 1 appellant questions the legality and correctness of the order dated 20/1/1989 passed by the District Forum, Udaipur in Complaint Case No. 57/vahan/88. Facts leading to this appeal may briefly be stated as under : The complainant-respondent No. 1 submitted a complaint before the District Forum, Udaipur on 19-12-88 alleging that truck No. RJQ 7285 was purchased by him in auction on 7-10-87 for Rs. 21,800/- as he gave the highest bid. The complainant paid the entire auction money and requested opposite party No. 1 respondent (sic appellant) to deliver registration certificate and other papers so that he may get the vehicle transferred in his name and after transfer to use the truck for earning profits ykhk izkir dj ldsa. Opposite-party No. 1 submitted the application to opposite-party No. 2 to transfer the truck in the name of the complainant. Opposite-party No. 2 informed that the road tax of the truck is outstanding and it is only after depositing the tax due that the registration of the truck can be transferred in the name of the complainant. The complainant informed opposite-party No. 1 in this connection. The transfer could not be affected (sic effected) even after about 14 months from the date of auction i. e. 7-10-87. On account of this the complainant has alleged that he has been suffering loss of income of Rs. 250/- per day and by the time complaint was filed he has already suffered a loss of Rs. 80,000/ -. It has been alleged by the complainant that in the absence of transfer of registration in his name the said truck could not be plied and, therefore, he has been suffering loss for which both the opposite-parties No. 1 and 2 are liable. An averment was made by the complainant that he has been suffering loss of Rs. 7,000/-per month on account of the failure of opposite-party No. 1 to get the transfer of registration of the truck effected in his favour. The complaint was registered on 19-12-88 and notices were ordered to be issued to the opposite-parties No. 1 and 2 for the hearing of 27-12-88. On that day Shri B. P. Acharya, Executive Engineer, PHED, Udaipur appeared. Time was allowed to him to file the version of the case. Next date fixed was 10-1-89. Nobody appeared on behalf of opposite-party No. 2 before the District Forum, Udaipur. There was a strike of Government employees w. e. f. 9-1-89 and therefore, no appearance was put on behalf of opposite-party No. 1 appellant before the District Forum, Udaipur and so an order to proceed ex-parte was passed on that date.
(2.) OPPOSITE-party No. 2 sent reply by post. It was stated that the truck which was purchased in auction by the complainant could not be transferred in the name of the complainant as he failed to submit Tax Clearance Certificate. According to opposite-party No. 2 three documents T. O. Form, Sale letter and Tax Clearance Certificate were required prior to the transfer of registration. It has been mentioned in that reply that the complainant was informed that the tax was outstanding against the vehicle and until and unless full amount of tax is deposited the transfer of ownership cannot be effected. The Drilling Department of PHED is engaged in commercial enterprises and as such there is no exemption from payment of tax under the Rajasthan Motor Vehicles Taxation Rules, 1951. The claim for compensation was resisted. Along with the reply photostat copies of the relevant rule and the government order relating to the grant of irregular exemption of tax to the vehicles owned by the PHED etc. were sent. OPPOSITE-party No. 2 also did not appear. On 16/1/1989 the complainant submitted his affidavit and the photostat copies of the documents. The District Forum passed the order on 20-1-89. It held that the complainant is entitled to receive Rs. 3,000/-per month as compensation w. e. f. 9/1/1987 from opposite party No. 1 appellant until the vehicle is registered in the name of the complainant. A sum of Rs. 200/- was also awarded as expenses to the complainant from opposite-party No. 1. Hence this appeal as aforesaid. The appeal was filed on 23/5/1989. It was accompanied by an application under S. 15, proviso of the Act read with rule 8(4) of the Consumer Protection (Raj.) Rules, 1987. The office reported that the appeal was barred by time as it was presented beyond the period of limitation. By order dated 7-7-89 the delay in filing the appeal was condoned. The appeal was registered and notices were ordered to be issued to the respondents. No written submissions have been filed on behalf of the respondents. We have heard Mr. N. L. Pareek, Addl. Government Advocate for the appellant, Mr. G. K. Bhartiya, Advocate for respondent No. 1 and Mr. Mohan Lal Purohit DTO and considered the record. It was contended on behalf of the appellant that the District Forum erred in holding that the complainant respondent No. 1 is a "consumer" within the meaning of S.2(1)(d) of the Act. It was submitted that the truck in question was purchased by complainant-respondent No. 1 for commercial purpose and a person who obtains goods for commercial purpose is not included in the definition of consumer as given in S.2(l)(d) (i) of the Act. In this complaint the complainant has stated that he has not been earning profits though he has invested huge amount in purchasing the truck by public auction. To use the complainant's words. . . ...[Vernacular Text Ommited]... In para 3 of the complaint the complainant-respondent No. 1 has stated that had the transfer of the truck in his name been effected at that time he could have plied the truck out of its income ...[Vernacular Text Ommited]...In para 5 of the complaint the complainant, has stated that on account of non-user of the truck he has been suffering loss of Rs. 7000/- per month which he is entitled to get from the opposite-parties. It may be recalled that the complainant has filed affidavit dt. 18-1-89. He has deposed in the affidavit that he has spent huge amount for the truck but as it was not transferred in his name he has not been able to earn profits. In para 2 of the affidavit the following is written; ...[Vernacular Text Ommited]... The averments relating to the loss have also been deposed in the affidavit. In these circumstances the question that arises is if the complainant has purchased the truck for commercial purpose then he is not a consumer within the meaning of S. 2(l)(d)(i) of the Act. "consumer" has been defined in S.2(1)(d)(i) of the Act. According to S.2(l)(d)(i) of the Act even if a person buys any goods for consideration and obtains such goods for any commercial purpose then he is not a consumer. The Commission has occasion to examine the expression "commercial purpose" in Complaint Case No. 4/89 (Smt. Pushpa Meena Vs. Shah Enterprises and others decided on Aug. 8, 1989) (1). It was observed by the Commission in Pushpa Meena's case (supra) as under : "It is well settled that when the expression commercial purpose has not been defined in the Act its common parlance meaning should be given and according to that commercial purpose is that purpose the object or aim of which is to make profit. Commercial emcompasses business activities. It means occupied with commerce."
(3.) WE may refer to M/s Oswal Fine Arts Vs. H. M. T. Madras (Original Petition No. 1/88 decided on 27/4/1989 by the National Commission, New Delhi) (2). It was held therein that a person who obtains goods for commercial purpose is specifically excluded from the scope of the expression consumer by the definition contained in S.2(l)(d)(i) of the Act. In I. L. R. (1957) 2 Allahabad, 407 (3) while considering the expression "commercial purposes" it was ruled that crux of the matter is whether it was object or the aim of the Municipal Board to make a profit out of the Water Works undertaking. It was further held that the expression commercial purpose would cover an undertaking the object of which is to make a profit out of the undertaking. It is aim and not the effect which has to be taken into consideration. Having considered the complaint and the affidavit of the complainant referred to hereinabove, we are of opinion that the complainant has purchased the truck in question in public auction for commercial purpose and as such he is not a consumer as defined in S.2(l)(d)(i) of the Act. As the complainant is not a consumer he is not entitled to invoke the provisions of the Act and so no relief could be granted to him by the District Forum under the Act. The matter does not rest at that. The District Forum has found that opposite-party No. 1-appellant auctioned the defective truck to the complainant inasmuch as the tax was in arrears and so he could not get it transferred in his name and as a result of that he was prevented from using it. The case of the complainant as disclosed in the complaint is that after purchasing the truck in question on 7/1/1987 in public auction, he deposited the entire auction money with the PHED and requested oppsite party No. 1-appellant to handover registration of the truck and all other papers so that he may get his name entered in the registration certificate. An application is said to have been submitted by the complainant to opposite-party No. 2 District Transport Officer who informed him that the tax of the truck is in arrears and so he should first deposit the tax and then only registration can be transferred in his favour. An application dated 11-11-87 was submitted to the Distt. Transport Officer, Udaipur for the transfer of the truck in question. It was stated in that application as under : ...[Vernacular Text Ommited]... The complainant has also produced letter dt. 13-10-87 which was submitted by opposite party No. 1 appellant to the District Transport Officer. In that it is written : ...[Vernacular Text Ommited]... The complainant is said to have submitted an application on 14-10-87 to the District Transport Officer in which he stated : ...[Vernacular Text Ommited]... The District Transport Officer has mentioned that until and unless arrears of tax are paid it cannot be transferred. The District Transport Officer has mentioned rule 28 of the Rajasthan Motor Vehicles Taxation Rules, 1951 which deals with complete exemption from payment of tax. Material part of rule 28 of the aforesaid Rules is as under : "28. Complete exemption from payment of the Tax. Motor Vehicles of the following classes are totally exempt from liability to taxation : (b) Motor Vehicles owned and exclusively used by or on behalf of any department of the Central Government, the Government of Rajasthan or the Government of any other State of India other than those used in connection with the business of a railway or any other commercial enterprise." ;