Consumer Complaint No 212 of 2014
Date of filing: 21.10.2014 Date of disposal: 10.11.2014
Complainant: Smt. Bijaya Banerjee, W/o. Sri Jayanta Banerjee, C/o. Biva Das, 1 No. Mohishila Colony, Dakshin Para, PO: Asansol – 3, PS: Asansol (S), Dist: Burdwan (WB), Erstwhile of Plot No. 182A, Ghutbona, PO: Bara Gholjur, Dist: Jamtara, Jharkhand.
-VERSUS-
Opposite Party: 1. Amarnath Choudhury, Prop. of Sai Auto, Ratu Road, Near Jaiswal Petrol Pump, Ranchi- 834 001.
2. Mahindra & Mahindra Ltd., 7th Kyd Street, Kolkata – 700 016.
3. Mahindra & Mahindra Finance Ltd., G.T Road (East), Rambandhu Talaw, Asansol – 3, PS: Asansol (S), Dist: Burdwan.
Present: Hon’ble President: Sri Udayan Mukhopadhyay
Hon’ble Member: Smt. Silpi Majumder
Hon’ble Member: Sri Durga Sankar Das
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Order No. 03, Dated: 10.11.2014
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service and unfair trade practice on behalf of the OP and for this reason she claimed Rs. 20, 00,000=00 due to her sufferings in total.
Today if fixed for admission hearing of the complaint. At the very outset of its admissibility our attraction was attracted at the para no. 4 of the complaint wherein it is stated by the complainant that she has purchased the alleged machine (Mahindra Backhoe Loader) for the purpose of carrying her business which has been frustrated due to supply of defective vehicle by the OP-1.
In respect of such averment as made out by the complainant in the petition of complaint we are of the view that admittedly the complainant has purchased the vehicle for commercial purpose and for purchasing the vehicle service was rendered by the Ops who are not at all Insurance Company. In view of the landmark judgment passed by the Hon’ble NCDRC in the First Appeal no. 159/2004 in the matter of M/s. Harsolia Motors Vs. M/s. National Insurance Co. Ltd. Their
1
Lordships have held that if the goods are purchased for resale or for commercial purpose then such consumer would be excluded from the coverage of Consumer Protection Act, 1986. Having regard to the abovementioned judgment we are of the view that the instant complaint cannot be maintainable before the Consumer Forum because the complainant is not a consumer at all. In this respect we are to mention that the definition of ‘consumer’ which is enumerated in the Section 2 (1) (d) of the Consumer Protection Act, 1986 from where it is also evident that
(i) …………………………………………………………, but does not include a person who obtains such goods for resale or for any commercial purpose or,
(ii) ……......................................................, but does not include a person who avails of such services for any commercial purpose. It is further mentioned in the definition of ‘consumer’ that “commercial purpose does not include use by a person of goods bought and used by him/her and services availed by him/her exclusively for the purposes of earning his/her livelihood by means of self-employment”.
In the case in hand no case has been made out that the vehicle was purchased or service availed of from the service provider or vender for the purpose of earning her livelihood by means of self-employment.
Therefore in view of the abovementioned Section as the complainant cannot be termed as a ‘consumer’ so the complaint cannot be admitted.
Hence, it is,
ordered
that the complaint is dismissed as not maintainable without being admitted. However considering the facts and circumstances of the case there is no order as to costs.
(Udayan Mukhopadhyay)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Durga Sankar Das) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
