w w w . L a w y e r S e r v i c e s . i n

Prem Kumar Bhardwaj & Another v/s Trigun Automobiles & Others

    Revision Petition No. 4520 of 2012

    Decided On, 05 January 2016

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Petitioners: Vikash Bhardwaj, Advocate. For the Respondents: R1, Pradeep Kumar, R2, Sanjeev Singh, R3, Ex-Parte, R4, Tanuj Bagga Sharma, Advocates.

Judgment Text

This revision is directed against the order of the State Commission Punjab dated 12.09.2012, whereby the State Commission allowed the appeal preferred by respondent no.1 (opposite party no.2 in the original complaint) and set aside the order passed by the District Forum.

2. Briefly stated the facts relevant for the disposal of the revision petition are that petitioners are running a high school, namely, Bhardwaj High School Kotakpura. In March 2003, the petitioners with a view to purchase a Swaraj Mazda bus having seating capacity of 26 + 1 over a wheel base 3335, approached respondent no.1 Trigun Automobiles, dealer of respondent no.4 Swaraj Mazda Limited. Respondent no.1 agreed to deliver the bus after fabricating the body on the chasis manufactured and supplied by respondent no.4. The total sale consideration was Rs. 5,50,000/-. The petitioner got the vehicle financed through respondent no.3 (Sheikh Farid Financial Services), a franchisee of respondent no.2, on payment of margin money of Rs.1,34850/- . It is the case of the petitioners that respondent no.1 & 4 in connivance with each other delivered a defective bus to the petitioners complainants by fabricating the body of the bus on a shorter chasis of ambulance having wheel base 3335. Due to the aforesaid defect as also the other defects, the concerned Regional Transport Office declined to register the bus because the wheel base has been extended and there was a change in the drawing of the bus. The petitioner, thus, approached respondent no.1 for replacement of the bus or refund of the consideration amount paid by him. Respondent no.1 instead of rectifying the mistake, tried to shift blame on the petitioner. The petitioner thus filed a criminal complaint under section 420 IPC against respondent no.1. As respondent no.1 failed to replace the defective vehicle or to refund the consideration amount, the petitioner filed a consumer complaint before the District Forum impleading respondent no.1 , the manufacturer of the vehicle as also the financers.

3. The opposite parties resisted the complaint by filing written statements. Respondent no.1 in his written statement took the plea that subject bus was purchased for commercial purpose and as such, the petitioners are not the complainants as envisaged under section 2 (1) (d) of the Consumer Protection Act, 1986 and the consumer complaint itself was not maintainable. A plea regarding territorial jurisdiction was also raised. On merits, the opposite parties denied the allegations made by the petitioners.

4. The District Forum on consideration of the pleadings of the parties and evidence allowed the complaint and ordered thus:

'In view of the discussion above, the complaint of the complainant is accepted and the opposite party no.2 is ordered to make payment of Rs.550,000/- with 12% per annum interest from 03.05.2003 till the date of payment within one month of the return of the bus in question by the complainant and also to pay Rs.5000/- as compensation and Rs.500/- as litigation expenses. Copies of this order be sent to the parties free of costs. File be consigned to record room.'

5. Being aggrieved of the order of the District Forum, the respondent no.1 Trigun Automobiles preferred an appeal and the State Commission noticed that petitioners had also filed a civil suit titled Bhardwaj High School and Ors. Vs. Cholamandalam Investment and Finance Co. Limited and Ors., which was decreed for recovery of margin money plus Rs.57,400/- deposited as four instalments against the finance agreement with 6% interest thereon in favour of the petitioners and observed that since the petitioners had got relief on execution of the said civil decree against the financers, the petitioners were not entitled to recover the amount as ordered by the District Forum. The State Commission thus, allowed the appeal and set aside the order of the District and dismiss the complaint. Being aggrieved of the dismissal of the complaint, the petitioners have preferred this revision.

6. Learned counsel for the petitioners has contended that impugned order of the State Commission is based upon incorrect appreciation of facts. It is argued that State Commission has failed to appreciate that civil suit filed by the petitioners against the financer respondent no.3 was for declaration and mandatory injunction. Therefore, it cannot be said that issue involved in the civil suit is the same as the issue involved before the consumer forum. It is further contended that State Commission has also failed to appreciate that respondent no.1, who is the appellant before the State Commission, was not even a party before the Civil Court and as such, the order of civil court has no bearing on the outcome of the appeal. It is further contended by learned counsel for the petitioners that State Commission failed to appreciate that civil court had granted relief to the extent of margin money plus the instalments paid by the petitioners in terms of finance agreement to respondent no.3 and the State Commission should have reduced the amount decreed by the District Forum.

7. On careful consideration of record, I do not find merit in the contention of the petitioners. Undisputedly, the petitioners, besides the consumer complaint, had filed a civil suit for declaration and mandatory injunction against respondent no.3 Sheikh Farid Financial Services, franchise of Cholamandalam Investment and Finance Co. Ltd., who financed the purchased of subject bus by the petitioners from respondent no.1. It is not in dispute that cost of subject bus was Rs.5,50,000/- which was financed by respondent no.3. It is also not disputed that in the entire transaction, the petitioners had paid margin money of Rs.1,34,850 plus four instalments against the finance taken from respondent no.3 amount to Rs.57,400/-. On perusal of the certified copy of judgment of Civil Judge, Senior Division, Faridkot and the corresponding decree sheet, it is evident that civil suit filed by the petitioners against the financers have been decreed and financer Sheikh Farid Financial Service has been restrained from claiming any loan amount from the petitioners . The said financer has also been directed to pay back the margin money Rs.1,34,850/- plus Rs.57400/- to the petitioners complainants with 6% interest thereon from the date of decree till the realisation of amount. From this, it is evident that civil court has granted relief of refund of entire money paid by the petitioners against the purchase of subject bus to the petitioners. It is undisputed that the above noted civil court decree stands executed and satisfied. That being the case, I do not find fault with the order passed by the State Commission holding that the petitioners complainants after having received the decretal amount in execution proceedings cannot be permitted to claim the relief in respect of same transaction twice. Thus, I find no reason to interfere with the impugned order in exercise of revisional jurisdiction.

8. Otherwise also, it is contended on behalf of respondent no.1 that consumer complaint should have been dismissed by the District Forum because the petitioners are not covered under the definition of ‘consumer’ as envisaged under section 2 (1) (d) (i) of the Consumer Protection Act, 1986 because admittedly the subject bus was purchased for commercial purpose. In support of this contention, learned counsel for the petitioners has drawn my attention to the allegations in para 11, 14 and relief clause of the complaint. The relevant allegations are reproduced as under:

'11. That the complainants have suffered a lot of loss of reputation of the school and also loss of more than 65 students for whose transportation the bus was purchased by the school and under these circumstances the complainants have suffered irreparable loss of strength of the school and reputation apart from the monetary loss of the school and developments of school due to the conduct of the opposite party for not replacing the bus even after issuance of notice for its replacing on account of manufacturing defect and their deceitful supply of the bus to the complainants. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx in the circumstances of the case'

14. That the complainants have not been able to use the bus as submitted above, therefore, they have suffered a great mental pressure and harassment in the hand of opposite party no.1 and 2 and have also suffered loss of reputation of school and also monetary benefits as name of more than 65 students for whose transportation the bus was purchased, had to be struck off or left the school for non-availability of facility and convenience of transportation. xxxxxxxxxx well within time of two years as prescribed'

Relief clause:

'Or in the alternative for refund of Rs.5,50,000/- alongwith interest @ 18% per annum and also for award of damages for loss of complainant on account of striking of names of more than 65 children for want of facility and convenience of transportation, the bus being note worthy of road and use due to condition of bus and the same being not registrable by the registering authority o

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f transport department to the tune of Rs.5.00 lac as loss of fee and further development of school due to loss of reputation and reduction of strength of school despite having arrangement to teach them and to pay continuously to the teachers employed and to pay xxxxxxxxxxxx may also be granted in favour of the complainants' 9. On conjoint reading of the above, it is clear that school was run by the petitioners for commercial purpose and subject bus was purchased by them in furtherance of the said purpose. As the subject bus was purchased for commercial purpose, in view of section 2 (1) (d), the petitioners cannot be termed as ‘consumer’ and they could not have maintained the consumer complaint. For this count also, the complaint deserves to be dismissed. 10. In view of the discussion above, I find no material irregularity or jurisdiction error in the impugned order which may call for interference in exercise of revisional jurisdiction. Revision petition is, therefore, dismissed.