Complaint No.13 of 2019.
Date of Institution:17.01.2019.
Date of order:21.11.2023.
Rajwant Singh Aulakh son of Sh.Mohan Singh, Resident of House No.135/13, Sheed Bhagat Singh Nagar, Jail Road, Gurdaspur, Tehsil and District Gurdaspur.
…...Complainant.
VERSUS
1. Avinash Cycle Store, G.T. Road, Mandi, Gurdaspur through its authorized signatory.
2. T.I. Cycles Head Office, M.T.H. Road, Kalyanapuram, Post Bag No.5, Ambattur, Chennai-600053 (Tamil Nadu).
….Opposite parties.
Consumer complaint U/S 12 of Consumer Protection Act.
Present: For the complainant: Miss.Meena Mahajan, Advocate.
For the opposite party No.1: Sh.Rahul Puri, Advocate.
Opposite party No.2: Exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Complainant Rajwant Singh Aulakh had filed the present complaint U/s 12 of the Consumer Protection Act against the opposite party and praying that the directions may kindly be issued to opposite party to replace the defective piece of cycle purchased by him with a new one in a proper condition or to refund the amount of Rs.10,000/- i.e. the sale price of the cycle to him towards damages, harassment suffered by way of mental tension and agony and litigation expenses or in the alternative to pay Rs.35,000/- to him alongwith interest @ 18% per annum, from the date of filing the present complaint, till its realization, in the interest of justice or any other alternative relief as the Court may deem it.
2. The case of the complainant in brief is that in the month April, 2018, a Harculous Cycle was purchased by him from the opposite party amounting to Rs.10,000/- but opposite party did not issue the bill of the said cycle on the pretext that bill book was sent to Pathankot for audit purpose and gave one excuse or another. It was pleaded that condition of the cycle was OK at the time of purchase but after reaching the home cycle was inspected by the complainant and the shokker of the cycle was not working properly and wheel of the cycle were not of good quality. It is further pleaded that Complainant approached the opposite party on the next day regarding the problem in the newly purchased cycle and demanded for the bill but complainant was not heard properly by the opposite party and did not made any heed to his request to exchange/replace the cycle with new one or to return back the amount of Rs.10,000/-. It was further pleaded that amount of Rs.10,000/- was received by the opposite party from the complainant which was illegal and more than the market value as the actual rate of the cycle in the market was Rs.6,000/- but Rs.4,000/- were extra were charged by the opposite party more than the market rate from the complainant. It is further pleaded that Complainant approached the opposite party many times with the request to issue the bill but opposite party flatly refused to admit the genuine claim of the complainant and turned out him after insulting him before the public. It was also pleaded that a legal notice dated 26.11.2018 was served upon the opposite party by the complainant but opposite party did not reply the same nor replaced the defective cycle with new one within the statutory period which is their deficiency in service. It was next pleaded that complainant suffered mental agony from the hands of the opposite party and is entitled to the compensation of Rs.20,000/- including Rs.15,000/- as litigation expenses, hence, this complaint.
3. Upon notice opposite party No.1 appeared through their counsel and filed its written reply by taking the preliminary objections that complaint is not maintainable in the present form and no cause of action has accrued to the complainant against the opposite party for filing the present complaint as complainant never purchased any cycle from the opposite party and as such he does not falls within the definition of consumer. It is further pleaded that complainant has not come to the Court/Commission with clean hands and filed the present false complaint by concocting a false story and dragged the opposite party in false litigation and as such he is liable to be burdened with special costs. On merits, it was denied that a harculous cycle was purchased by the complainant from the opposite party in the month of April, 2018 amounting to Rs.10,000/- and the question of not issuing the bill by saying that bill book was sent to Pathankot for billing and for audit purpose does not arise and the present complaint filed by the complainant with ill will and for extracting money from the opposite party under the grab of this complaint. It is further pleaded that opposite party neither sold any cycle to the complainant nor received single penny from the complainant and as such question of any kind of defect in the cycle does not arise and opposite party reserves his right to initiate separate proceedings against the complainant in the competent Court of law. All the averments made in the complaint have been denied and lastly prayed for dismissal of complaint with costs.
4. Opposite party No.2 did not appear despite the service of notice and was proceeded against exparte vide order dated 05.10.2023.
5. Counsel for the complaint to prove the case has filed affidavit of complainant with copies of documents Ex.C1 to Ex. C4.
6. On the other hand counsel for the opposite party No.1 has filed affidavit of Avinash Chander prop./partner.
7. Written arguments not filed by both the parties.
8. Counsel for the complainant has argued that complainant had purchased one cycle from opposite party No.1 for Rs.10,000/-. However, opposite party No.1 had not issued any bill and later on complainant noticed that shokker and tyre/wheel of cycle was not of good quality. It is further argued that the opposite party No.1 charged excess amount of Rs.4,000/- from the complainant. It is further argued that failure to repair/change the defective cycle amounts to deficiency in service.
9. On the other hand counsel for the opposite party No.1 has argued that since there is no proof of payment of Rs.10,000/- by the complainant to the opposite party No.1 and as such complainant does not fall under the definition of consumer as per Consumer Protection Act. It is further argued that no such cycle was ever sold to the complainant by the opposite party No.1 and as such there is no deficiency in service on the part of opposite party No.1.
10. Opposite party No.2 remained exparte.
11. We have heard the Ld. counsels for the complainant and opposite party No.1 and gone through the record.
12. Complainant has placed on record his affidavit Ex.C1, copy of legal notice Ex.C2, postal receipt Ex.C3 and photocopy of cycle Ex.C4 whereas counsel for the opposite party No.1 has placed on record affidavit of Avinash Chander Prop./partner.
13. Perusal of record shows that complainant has not placed on record any evidence to prove that the sale consideration was paid by the complainant to the opposite party No.1 and as such there is no proof of sale consideration having paid to opposite party No.1 and as such there is no relationship of consumer and service provider between complainant and opposite party No.1 and it is nowhere proved on record that the said cycle has been manufactured by opposite party No.2.
14. "At this stage, it would be appropriate to refer to certain statutory provisions of the Consumer Protection Act, 1986. 'Consumer' is defined in clause (d) and 'service' in clause (o) of Section 2(1) of the CP Act as under":-
"2. Definitions.- (1) In this Act, unless the context otherwise requires,-
xxxxxxxxxxxx
(d) "consumer" means any person who,-
(i) buys any goods for 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 who 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 but does not include a person who avails of such services for any commercial purpose;
Explanation.- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment".
xxxxxxxxx "(o) "Service" means service of any description which is made available to potential users and includes, but not limited to, the 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;"
15. Accordingly, since there is no relationship of consumer and seller for want of proof of sale consideration and as such the present complaint being without merit is ordered to be dismissed with no order as to costs.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
17. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Nov. 21, 2023 Member.
*YP*
