REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5165 OF 2009
[Arising out of S.L.P.(C)No.20515 of 2005]
Madan Kumar Singh (D) Thr. LR. ....Appellant
Versus
Distt. Magistrate, Sultanpur & Ors. ...Respondents
WITH
CIVIL APPEAL NO. 5166 OF 2009
[Arising out of S.L.P.(C)No.11210 of 2006]
J U D G M E N T
Deepak Verma, J.
1.Leave granted.
2.For the sake of convenience, facts have been
taken from the appeal arising out of
S.L.P.(C)No.20515 of 2005.
3.Appellant was an auction purchaser of a truck
bearing registration No. UP I-4775, put to an
auction sale, on account of default in payment of
instalments committed by its previous owner Iqbal,
having taken loan from Union Bank of India under
"Self Employment Scheme". Recovery Certificate was
issued to the Collector, Sultanpur (U.P.) by the
said bank. The auction was held in the Tehsil
Compound, Sultanpur, on 19.8.1999. The appellant's
bid for a sum of Rs. 70,000/- being the highest,
was knocked down in his favour and accepted by
respondent No. 1.
4.As per the terms and conditions of the auction,
appellant deposited a sum of Rs. 20,000/-, as soon
as the bid was knocked down in his favour. Since no
objection was received against the said auction
sale, the appellant deposited balance amount of
Rs. 50,000/- on 20.8.1999.
5.On 19.9.1999, the said auction was confirmed,
since no objections were received much less, from
the previous owner Iqbal. Thus, it was treated to
be a final sale in favour of the appellant.
6.Obviously, after the sale having been confirmed
in favour of the appellant, he was entitled to
receive possession of the truck, which was not
delivered to him by the respondents. Thus he made
a representation on 30.11.1999 for delivery
thereof. He continued to make several
representations with the respondents for delivery
of the truck purchased in the auction and also to
hand over to him the documents so that the vehicle
could be transferred in the name of the appellant
so as to enable him to ply the same. It appears
that truck was delivered to the appellant after
about six months from the date of auction sale, for
which no plausible reasons were assigned by the
respondents.
7.Despite handing over possession of the truck at a
belated stage, respondents did not deliver
necessary documents of the truck to the appellant
so as to enable him to get the vehicle transferred
in his name, thereby depriving him of its
commercial use, the purpose for which he had
purchased.
8.He was therefore, constrained to file a petition
under Section 12 of the Consumer Protection Act,
1986 (for brevity, 'the Act') claiming damages.
9.Appellant was ultimately delivered the possession
of the truck on 14.3.2000, during the pendency of
the complaint before the District Forum. The
relevant papers thereof were not handed over to
him for a long time but on persistent requests, the
same were handed over to him some time in the month
of January, 2005. Thus after a lapse of more than
five years from the date, the auction was confirmed
in favour of the appellant.
10.The District Consumer Forum dismissed the
complaint of the appellant holding therein that
appellant is not a "consumer" within the definition
of the Act.
11.Feeling aggrieved, appellant filed an appeal
before the State Consumer Disputes Redressal
Commission, Uttar Pradesh, Lucknow which was
registered as Appeal No. 2327 of 2000. The State
Commission dismissed the appeal with certain
observations reproduced herein below:
"The District Consumer Forum Sultanpur
has dismissed the complaint on the finding
that such matters are not cognizable by it
under COPRA. No error at all can be found
in the aforesaid finding. It is open to
the appellant to file copy of this order
before District Magistrate Sultanpur with
such prayer relating to the documents of
the vehicle as advised. The District
Magistrate will deal with such
representation in accordance with law and
pass necessary orders within two months."
12.Pursuant thereto, appellant submitted
representation to the District Magistrate on
17.2.2003 and continued to remind them that they
have to deliver the necessary documents to the
appellant so as to enable him to get the vehicle
transferred in his name, which would further enable
him to use the same for commercial purposes.
13.Against the order of the State Commission,
appellant filed Revision Petition No. 929 of 2003
before the National Consumer Disputes Redressal
Commission, New Delhi. The same came to be
disposed of vide impugned order on 18.5.2005 and
the complaint filed by appellant has partly been
allowed with the following directions:
"In view of the long delay, we are inclined
to grant damages to the extent of Rs.
25,000/- along with cost of Rs.5000/-
payable by the respondents to the Petitioner
jointly and severally. In view of the facts
and circumstances of the case, we direct the
District Magistrate, Sultanpur, U.P. to
conduct an inquiry into the matter and fix
the responsibility including the recovery of
this awarded amount from the officers who
are found guilty of deficiency/negligence in
this case."
14. Feeling aggrieved thereby the auction
purchaser Madan Kumar Singh (since dead) preferred
a Special Leave Petition whereas respondents have
also preferred Special Leave Petition against
Madan Kumar Singh (since dead).
15. The original appellant having died during the
pendency of the appeal, his legal representative
was brought on record.
16. We have, accordingly, heard the learned
counsel for the appellant Mr. R.K. Kapoor and
learned counsel for the respondents Mr. R.K. Gupta
at length. Perused the record.
17. The questions which arise for consideration in
the aforesaid appeals are (i) whether the appellant
can be said to be 'consumer' within the definition
of Section 2(1)(d) of the Act; and (ii) whether it
can be said that there has been deficiency in the
services committed by respondents as contemplated
under Section 2(1)(g) of the Act.
18. It is pertinent to mention here that even
though respondents were parties before the District
Consumer Forum, State Commission, as also before
the National Commission but they neither preferred
to file any objections nor participated in the
proceedings. Thus were proceeded ex-parte
throughout.
19. Even though there has been long and chequered
history of various litigations in the High Court of
Allahabad and a civil suit which were either at the
instance of previous owner of the truck Iqbal Ahmed
or by Maqsood Ahmed, apparently set up by Iqbal
Ahmed but we are not concerned with the same, in
the aforesaid appeal. Needless to say that in
none of the proceedings either initiated by Iqbal
Ahmed or his stooge Maqsood Ahmed there was any
order of stay granted by any court that appellant
herein should not be delivered the relevant
documents of the truck, so as to enable him to
start plying the same.
20. It is trite to say that mere filing of a
Petition, Appeal or Suit, would by itself not
operate as stay until specific prayer in this
regard is made and orders thereon are passed.
21. There is nothing on record to show that any
stay was granted in favour of any party,
restraining the respondents not to deliver the
papers of the truck to the appellant. It would go
to show that respondents were unlawfully holding
back the papers with them, for which, otherwise
they were not entitled to do so.
22. To deal with the question projected
hereinabove in the aforesaid appeal, it is
necessary to go through the definition of
'Consumer' as contained in Section 2(1)(d) of the
Act.
"2(d) "Consumer" means any person who -
(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 [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.
[Explanation- For the purposes of sub-
clause (i), "commercial purpose" does not
include use by a consumer of goods bought
and used by him exclusively for the purpose
of earning his livelihood, by means of self-
employment;]".
23. Plain reading of the same makes it abundantly
clear that appellant herein would fall in the
category of a 'consumer' as he had bought the
truck for a consideration which was paid by him.
It was bought to be used exclusively for the
purpose of earning his livelihood by means of self-
employment. The said pleading by way of amendment
was incorporated by the appellant in his
application filed under Section 12 of the Act,
before the District Consumer Forum but proper
cognizance thereof has not been taken.
24. A further reading of the aforesaid definition
of 'consumer' makes it clear that Parliament wanted
to exclude from the scope of the definition the
persons, who obtain goods for resale and also those
who purchase goods with a view to use such goods
for carrying on any activity for earning. The
immediate purpose as distinct from the ultimate
purpose of purchase, sale in the same form or
after conversion and a direct nexus with profit or
loss would be the determinants of the character of
a transaction-whether it is for a "commercial
purpose" or not. Thus, buyers of goods or
commodities for "self consumption" in economic
activities in which they are engaged would be
consumers as defined in the Act.
25. Apart from the above, it may also be seen that
the purchase of the truck by the appellant would
also be covered under explanation to
Section 2(1)(d) of the Act. The appellant had
mentioned categorically that he had bought the said
truck to be used exclusively by him for the purpose
of earning his livelihood, by means of self-
employment. Even if he was to employ a driver for
running the truck aforesaid, it would not have
changed the matter in any case, as even then
appellant would have continued to earn his
livelihood from it and of course, by means of self-
employment. Furthermore, there is nothing on
record to show that he wanted to use the truck for
any commercial purpose.
26. Thus, the question No.1 is answered in favour
of the appellant that he would be deemed to be a
consumer within the definition as contained in
Section 2(1)(d) of the Act.
27. Coming to question No.2 whether there has been
a deficiency in the services committed by
respondents as contained in Section 2(1)(g) and (o)
of the Act or not, "deficiency" and "services" have
been defined as under:
"2(1)(g) "deficiency" means any
fault, imperfection, shortcoming or
inadequacy in the quality, nature and
manner of performance which is required
to be maintained by or under any law for
the time being in force or has been
undertaken to be performed by a person in
pursuance of a contract or otherwise in
relation to any service.
2(1)(o) "service" means service of any
description which is made available to
potential users and includes provision of
facilities in connection with banking,
financing, insurance, transport, processing,
supply of electrical or other energy, board
or lodging or both, [housing construction],
entertainment, amusement or the purveying of
news or other information, but does not
include the rendering of any service free of
charge or under a contract of personal
service."
28. The facts mentioned hereinabove would go to
show that appellant having been declared as highest
bidder had deposited the initial money and next day
deposited the balance of the consideration. The
truck in question was actually handed over to him
almost after six months from the date of auction in
his favour. Even after getting delivery of the
truck he could not have started plying the same
unless he was delivered the relevant papers
thereof. There is no dispute, which even otherwise
stands proved from the voluminous material
available on record that despite best efforts made
by the appellant, the relevant papers of the truck
were handed over to him only after six years from
the date of the auction. No plausible or
convincing reasons have been assigned by the
respondents for not doing so.
29. From the narration of the aforesaid facts, it
is clearly made out that respondents were at fault
in performance of the services which was otherwise
required to be performed by them. What more could
be the deficiency in service cannot be described.
According to us, respondents were certainly
imperfect and the same would amount to shortcoming
in quality in providing the service to the
appellant.
30. Thus, in our considered opinion, all the
ingredients, to enable the appellant to claim
damages under the Act were made out. This has in
fact been found by the National Commission also,
that is why it proceeded to award compensation of
Rs. 25,000/- to the appellant.
31. Now, the question that arises for
consideration before us is whether the amount of
compensation awarded to the appellant is just and
proper or deserves to be enhanced.
32. Even though the appellant claimed damages @
Rs.500/- per day and interest at 5% on the amount
of Rs.70,000/- deposited by him for the price of
the truck in addition, he further claimed damages
for mental and social injuries to the tune of
Rs.50,000/- + litigation expenses but in absence of
any cogent and valid evidence available on record,
it is not proper to consider the reliefs as claimed
by the appellant. However, there is no doubt that
the appellant suffered loss of earning firstly due
to non-delivery of vehicle and then due to highly
belated supply of requisite documents. Moreover,
the value of the truck also depreciated resulting
in further loss to him. Thus, in our opinion, the
amount awarded by National Commission is too meagre
and deserves to be enhanced.
33. During the course of arguments, Sh. R.K.
Gupta, learned counsel for the respondents also
made submissions that since the documents
pertaining to the truck were received late from the
bank, therefore, the same could not be delivered to
the appellant herein. However, this plea had not
been taken by the respondents nor it is reflected
from any of the documents filed by respondents in
their own appeal. It is, therefore, clearly an
afterthought and has been taken so as to shield the
unwarranted action of the respondents.
34. The conduct, behaviour and attitude of the
respondents, throughout, has been highly
reprehensible. When the bank had issued a Fard
Nilami and respondents were entrusted with the job
of auction then the said auction should have been
implemented fully in letter and spirit. Once the
highest bid of the appellant was knocked down in
his favour, pursuant thereto, he had deposited the
requisite amounts, then as a necessary consequence
thereof he should have been delivered the truck
immediately along with the necessary documents.
For the reasons best known to the respondents they
had not only delayed delivery of the truck but had
also, despite the efforts made by the appellant,
not handed over the papers of the truck to him for
long number of years. Any explanation offered
during the course of the arguments is not
acceptable to us, which certainly shows their
malafide intentions.
35. Even assuming for a moment that bank had not
delivered the papers of the truck to the
respondents then it was the duty of the respondents
to have insisted the bank for delivery of the
papers which they had failed to do. Thus, in any
case, there cannot be any escape of the respondents
from shaking off the liability fastened on them by
the National Commission.
36. Taking the totality of the situation as it
exists, we are of the opinion that a total amount
of Rs. 1,00,000/- payable by respondents jointly or
severally to the appellant would subserve the
justice.
37. Even though the Act specifically does not
authorise to grant interest but in appropriate
cases, grant of interest on the facts and
circumstances of the case is permissible. The same
has been done by this Court in long catena of
cases.
38. In this case also, keeping the circumstances
under which appellant was made to run from pillar
to post, to get the documents of the truck from the
respondents, we are of the opinion that ends of
justice would be met if interest at the rate of 6%
p.a. from the date of the original application till
actual payment of the aforesaid enhanced awarded
amount is made by the respondents. We accordingly
do so. The appeal arising out of SLP(C) No.20515
of 2005 is allowed with costs and Appeal arising
out of SLP (C) No.11210 of 2006 is dismissed with
costs. Counsel fee assessed at Rs.10,000/- each.
.....................
...J.
[S.B. SINHA]
.......................J.
[DEEPAK VERMA]
New Delhi.
August 07, 2009.
