Back
2008(2) CPR 252
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM
M.V. Viswanathan, Judicial Member and S. Chandramohan Nair, Member
Abdulla K.K. —Appellant
versus
Shakthi Automobiles and Anr. —Respondents
Appeal No. 756 of 2002
Decided on 8.2.2008
Counsel for the Parties:
For the Appellant:B. Ummer, Advocate.
For the Respondent No. 1:Sri Mathew’s K. Uthuppachan, Advocate.
For the Respondent No. 2:Saji Isaac, K.J., Advocate.
IMPORTANT POINT
Before the Amendment Act 62/02, the service availed by a person even if it is for commercial purpose would come within the ambit of the Consumer Protection Act.
Headnote:Consumer Protection Act, 1986—Section 2(1)(d)(ii) and 14—Services hired under commercial transaction—Before Amendment Act, 62 of 2002 service availed even if it was for commercial purpose would come within ambit of the Act—Insured vehicle damages in accident was being used for commercial purposes—Claim before consumer Forum was towards damages for repair of vehicle—Transaction entered into between appellant-complainant and opposite parties was in the year 2001—Forum below was wrong in treating complainant not to be the consumer—Matter needed to be remanded. (Para 7)
Result: Appeal allowed.
M.V. Viawanathan, Judicial Member —The above appeal is preferred from the order dated 17.10.02 of the C.D.R.F., Malappuram in O.P. No. 189/01. The complaint in the said O.P. 189/01 was filed by the appellant herein as the complainant against the respondents 1 and 2 as opposite parties claiming replacement of the defective cabin and spare parts fitted to the insured vehicle and also for the refund of the excess amount of Rs. 25,000 with compensation and costs. The above said claim was disputed by the opposite parties. They also raised the contention that the complaint filed as O.P. 189/01 is not maintainable as the complainant is not a consumer coming within the ambit of the Consumer Protection Act, 1986. The lower Forum accepted the objection raised by the opposite parties that the complainant is not the consumer coming within the ambit of the Consumer Protection Act. Thereby the complaint in O.P. 189/01 was dismissed. Aggrieved by the aforesaid Order passed by the Forum below the present appeal is filed.
2. When this appeal was taken up for final hearing, the appellant/complainant was represented by the Power of Attorney Holder Mr. U. Unniyan. The respondents/ opposite parties are represented by the counsel of their choice. The authorized representative of the appellant argued this appeal on the basis of the grounds urged in the memorandum of the present appeal. The counsel for the respondents/opposite parties supported the findings and conclusions of the lower Forum and requested for dismissal of the present appeal.
3. Points that arise for consideration are:
(i) Whether the appellant/complainant can be treated as a consumer coming under the purview of the Consumer Protection Act?
(ii) Is there any legally sustainable ground to interfere with the impugned order dated 17.10.02 passed by C.D.R.F. Malappuram in O.P. 189/01?
4. Point Nos.(i) and(ii):
The above appeal is preferred from the order dated 17.10.02 passed by C.D.R.F., Malappuram in O.P. 189/01, the Forum below has mistakenly noted the Number of the O.P. 189/02 instead of O.P. 189/01. So, this Commission is pleased to make it clear that the complaint is that of O.P. 189/01.
5. The Forum below dismissed the complaint in O.P. 189/01 on the sole ground that the transaction involved in the case was a commercial transaction and so the complainant would not come within the ambit of the Consumer Protection Act, 1986. The pleadings in O.P. 189/01 would make it clear that the appellant/complainant availed the service of the first Opposite Party-Sakthi Automobiles and the second opposite party- Oriental Insurance Company in getting the vehicle repaired by the first opposite party on the strength of the policy of insurance issued by the second opposite party insurance company. There can be no doubt about the fact that the appellant/complainant availed the service of the opposite parties.
6. The next question for consideration is as to whether the service availed by the appellant/complainant can be treated as one coming under commercial transaction. There can be no doubt that the complainant has been using the insured vehicle for commercial purpose. So it can very safely be concluded that the transaction involved in O.P.189/01 is a commercial transaction.
7. Then the next important aspect to be considered in this case is as to whether the appellant/complainant can be treated as a consumer coming under the purview of the Consumer Protection Act as defined in Section 2(1)(d)(ii) of the Consumer Protection Act,1986. It is to be noted that before the Amendment Act 62/02, the service availed by a person even if it is for commercial purpose would come within the ambit of the Consumer Protection. In other words, the consumer, who availed the services for consideration with respect to commercial transaction would come within the ambit of the definition ‘the consumer’. Admittedly in the present case, the transaction entered into between the appellant/complainant and the respondents/
