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.