MADAN KUMAR SINGH (D) THR. LRS.versusDISTT. MAGISTRATE, SULTANPUR & ORS.

                      [2009] 12 S.C.R. 1186


A            MADAN KUMAR SINGH (0) THR. LRS.
                                V.
           DISTI. MAGISTRATE, SULTANPUR & ORS.
                 (Civil Appeal No. 5165 of 2009)

                        AUGUST 07, 2009
B
            [S.B. SINHA AND DEEPAK VERMA, JJ.]

       Consumer Protection Act, 1986 - ss.2(1)(d),(g) & (o) and
  12 - Consumer- Deficiency in service - Claim for damages         t

c - Truck purchased in auction sale - Respondents authorities
  delayed delivery of the truck to appellant-auction purchaser
  and also, despite efforts made by him, did not hand over             -
  necessary papers of the truck to him for long number of years
  - Appellant could not ply the truck for such long number of
D years - Petition by appellant uls. 12 claiming damages -
  Held: Buyers of goods/commodities for "self consumption" in
  economic activities in which they are engaged would be
  consumers as defined in the Act - Appellant was 'consumer'
  within meaning of s.2(1)(d) as he purchased the truck for
E earning  his livelihood by means of self-employment -
  Conduct, behaviour and attitude of respondents was highly
  reprehensible - There was deficiency in services on their part
  - Rs. 1 lakh with 6% interest p.a. directed to be paid by
  respondents jointly or severally to the appellant.
F      A truck was put in auction sale, on account of default
  in payment of instalments by its previous owner towards
  the loan taken by him from bank. Bid of the appellant was
  the highest. In 1999, the auction was confirmed and
  treated to be a final sale in favour of the appellant.
G Appellant deposited the requisite money consideration,
  however, the respondents authorities handed over the
  truck in question to the appellant only after six months
  from the date of auction. Even after getting delivery of the
  truck, the appellant could not start plying the same as he
H                            1186
   MADAN KUMAR SINGH (D) THR. LRS. v. DISTI. 1187
          MAGISTRATE, SULTANPUR

was not delivered the relevant papers thereof for long A
number of years despite efforts made by him. The relevant
papers of the truck were handed over to the appellant six
years after the date of auction.

     Meanwhile, the appellant filed petition Section 12 of 8
the Consumer Protection Act, 1986 claiming damages.
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 and in addition, further
claimed damages for mental and social injuries to the tune C
of Rs.50,000/- plus litigation expenses.

    The questions which arise for consideration in the
present appeals were (i) whether the appellant was a
'consumer' within the definition of Section 2(1)(d) of the
Act; and (ii) whether there was deficiency in services D
committed by respondents as contemplated under
Section 2(1)(g) of the Act.

    Disposing of the appeals, the Court

      HELD:1. Appellant would be deemed to be a E
consumer within the definition as contained in Section
2(1 )(d) of the Consumer Protection Act, 1986. A plain
reading of Section 2(1) (d) of the Act makes it abundantly
clear that appellant would fall in the category of a
'consumer' as he had bought the truck for a consideration F
which was paid by him. It was bought to be used
exclusively for the purpose of earning his livelihood by
means of self-employment. A further reading of the
aforesaid definition of 'consumer' makes it clear that
Parliament wanted to exclude from the scope of the G
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 H
   1188     SUPREME COURT REPORTS            [2009] 12 S.C.R.


A 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
B consumers as defined in the Act. 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
  t.ruck to be used exclusively by him for the purpose of
c 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-
D employment. Furthermore, there is nothing on record to
  show that he wanted to use the truck for any commercial        •
  purpose. [Paras 23, 24, 25 and 26) [1195-H; 1196-H; 1196-
  A-G]

      2. There is nothing on record to show that any stay
E 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. The truck in
F question was actually handed over to the appellant
  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
G 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
H been assigned by the respondents for not doing so. From
          MADAN KUMAR SINGH (D) THR. LRS. v. DISTT.           1189
                 MAGISTRATE, SULTANPUR

        the narration of the aforesaid facts, it is clearly made out   A
        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. The respondents were certainly
        imperfect and the same would amount to shortcoming in          B
        quality in providing the service to the appellant. Thus, 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
                                                                       c
-
        proceeded to award compensation of Rs. 25,000/- to the
        appellant. [Paras 21, 28, 29 and 30] (1194-H; 1195-A; 1197-
        F-H; 1198-A-C}

            3.1. 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      0
        truck also depreciated resulting in further loss to him.
        Thus, the amount awarded by National Commission is
        too meagre and deserves to be enhanced. (Para 32]
        [1198-E-F]
                                                                       E
             3.2. 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 F
        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. G
        For the reasons best known to the respondents they had
        not only delayed delivery of the truck !lut 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 H
    1190       SUPREME COURT REPORTS            (2009) 12 S.C.R.


A arguments is not acceptable, which certainly shows their
  malafide intentions. [Para 34] [1199-8-D]

       3.3. 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
B
  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. [Para 35] [1199-E]

c
                                                                             -
         3.4. Taking the totality of the situation as it exists, a
    total amount of Rs. 1,00,000/- payable by respondents
    jointly or severally to the appellant would subserve the
    justice. [Para 36] [1199-F]

        4. Even though the Act specifically does not
D
  authorise to grant interest but in appropriate cases, grant
  of interest on the facts and circumstances of the case is          "
  permissible. 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
E respondents, .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. [Paras 37 and 38]
  [1199-G-H; 1200-A-B]
F
        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
  5165 of 2009.
       From the Judgment & Order dated 18.5.2005 of the
  National Consumer Disputes Redressal Commission, New
G Delhi in Revision Petition No. 929 of 2003.

                                 WITH

    C.A. No. 5166 of 2009.
H          R.K. Kapoor, Gunjan Sinha, H. Pant, Anis Ahmed Khan for
             MADAN KUMAR SINGH (D) THR. LRS. v. DISTI. 1191
                    MAGISTRATE, SULTANPUR

          the Appellants.                                                     A
                R.K. Gupta, Manoj Dwivedi, Gunnam Venkateswara Rao
          for the Respondents.

               The Judgment of the Court was delivered by
                                                                              B
               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 c
          registration No. UP 1-4775, 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 D
          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.
                                                                            E
               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.
                                                                            F
,..            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.
                                                                              G
               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               H
    1192      SUPREME COURT REPORTS               (2009] 12 S.C.R.


A 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
8 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
c   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,
D '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,
E
  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
F of the appellant holding therein that appellant is not a
  "consumer" within the definition of the Act.
       1t. Feeling aggrie..._ed, appellant filed an appeal before the
  State Consumer Disputes Redressal Commission, Uttar
G 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
H
             MADAN KUMAR SINGH (D) THR. LRS. v. DISTT. 1193
            MAGISTRATE, SULTANPUR [DEEPAK VERMA, J.]

              are not cognizable by it under COPRA. No error at all can A
              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 B
              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   c
          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 D
          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:
                                                                             E
               "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 F
-·             including the recovery of this_ awarded amount from the
               officers who are found guilty of deficiency/negligenc_e_in
               this case."                                          ~
               14. Feeling aggrieved thereby the auction purchaser G
          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
                                                                            H
    1194      SUPREME COURT REPORTS                [2009] 12 S.C.R.


A 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.
B        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
c   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
D 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
E of th~ truck Iqbal Ahmed or by Maqsood Ahmed, apparent[y 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
F 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
G 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
H
  MADAN KUMAR SINGH (D) THR. LRS. v. DISTT. 1195
 MAGISTRATE, SULTANPUR [DEEPAK VERMA, J.]

to show that respondents were unlawfully holding back the              A
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
                                                                       8
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,          c
    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                 0
    such person, but does not include a person who obtains
    such goods for resale or for any commercial purpose;
    or

          (ii) [hires or avails oij any services for a consideration
    which has been paid or promised or partly paid and partly          E
    promised, or under any system of deferred payment and
    includes any beneficiary of such services other than the
    person [hires or avails oij the services for consideration
    paid or promised, or partly paid and partly promised, or
    under any system of deferred payment, when such                    F
    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 G
    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'       H
    1196      SUPREME COURT REPORTS               [2009) 12 S.C.R.


A 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,
B 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
c 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
D character of a transaction-whether it is for ~ "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.

E       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
F 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
G
   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.
H
             MADAN KUMAR SINGH (D) THR. LRS. v. DISTI. 1197
            MAGISTRATE, SULTANPUR [DEEPAK VERMA, J.]

               27. Coming to question No.2 whether there has been a             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,       B
               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
      i
               undertaken to be performed by a person in pursuance of
               a contract or otherwise in relation to any service.
                                                                                c
                     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                 D
              ·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."
                                                                                E
                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     F

-··       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       G
          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     H
    1198      SUPREME COURT REPORTS               [2009) 12 S.C.R.


A 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
B 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
c   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.
D
        32. Even thougb 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
E
  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
F 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,
G 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
H filed by respondents in their own appeal. It is, therefore, clearly
    MADAN KUMAR SINGH (D) THR. LRS. v. DISTT. 1199
   MAGISTRATE, SULTANPUR [DEEPAK VERMA, J.]

 an afterthought and has been taken so as to shield the               A
 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
                                                                      8
 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 lavour,
 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             C
 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        D
·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     E
 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    F
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       G
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          H
    1200     SUPREME COURT REPORTS               [2009] 12 S.C.R.


A 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
8 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.

    8.8.8.                                  Appeals disposed of.