1. The fact of the case of complainant is that being an unemployed youth for the purpose of his livelihood, running a Bolero vehicle vide Regd. No. OR-10-J-7772 and on the basis of the tender call notice vide no. 6331/2012 dated 31.12.2012 of the O.P.No.2, he was selected to engage his aforesaid vehicle and made an agreement with the O.P. No. 1.  It is alleged that the said vehicle was run under the O.P. No.1 till 05.05.2015 with a monthly hire charges of Rs. 15,500/- excluding diesel and other lubricant, but the O.P.No.1 has not paid Rs. 2,03,825/- towards hire charges and Rs. 1,18,000/- towards fuel charges from April 2014 to 5^th May 2015 and the complainant has submitted the relevant documents to the O.P.No.1 for settlement of payment but the O.Ps have not paid his payment till date, thus alleging deficiency in service on the part of the O.Ps, he filed this case praying the Forum to direct the O.Ps to pay Rs. 2,03,825/- towards hire charges and Rs. 1,18,000/- towards diesel charges with 18% interest and adequate compensation and costs of litigation to him.

2. O.P. No. 1 appeared in this case and filed their counter with all denial pleas contending with a specific plea that the complainant is not consumer under them and with other contentions, they prayed to dismiss the case against him.  

3. On the other hand, the O.P.No.2, though received notice of the Fora, did not choose to enter into the case nor filed their case nor participated in the hearing also inspite of repeated adjournment given to them keeping in view of natural justice, as such we lost opportunities to hear from them.

4. Complainant filed documents in support of his submissions, whereas the O.P.No.1 did not choose to file any documents.

5. In the instant case, it is an admitted fact that as per the tender call notice of the O.P. No.2 vide no. 6331/2012 dated 31.12.2012, the complainant engaged his alleged Bolero vehicle vide Regd. No. OR-10-J-7772 with the O.P.No.1 with a monthly hire charges of Rs. 15,500/-. Complainant has filed document to that effect.  It is also an admitted fact that inspite of repeated approaches, the O.P.No.1 did not pay the hire charges and other charges for diesel and lubricant, for which he complainant made correspondence with the O.P. No. 1.  Complainant has filed document to that effect also. Though the O.P.No.1 did not file any supportive document but argued on the point of maintainability of the case on the point that the complainant is not a consumer under them.

6. Before going to the merit of the case, we decided to discuss on the question of maintainability raised by the O.P.No.1 i.e. the complainant is not consumer under them.

7. We have gone through the records and material documents filed by the complainant as well as the counter version of the O.P.No.1.  It is found that the complainant has filed documents like :

1. Xerox copy of letter issued to B.D.O. dated nil.
2. Xerox copy of agreement dated. 22.02.2014,
3. Xerox copy of tender call notice vide no. 6331/2012 dated. 31.12.2012
4. Xerox copy of letter issued to B.D.O. dated 26.03.2015,
5. Xerox copy of PAN application status issued by NSDL.

From the above all documents, it is well established that the complainant has engaged his alleged vehicle to provide service to O.P. No. 1 as per the tender call notice of O.P. No. 2 vide no. 6331/2012 dated 31.120.2012 and due to non release of the hire chares and payment towards expenses of diesel and lubricant, the complainant made correspondence with the O.P.No.1.But no aforementioned documents even the correspondence made by the complainant do show the status of the complainant as a consumer, rather the documents only proves that the alleged vehicle was engaged for the official purpose of the O.P.No.1 and the income generated out of use of the said vehicle is only used for the livelihood of the complainant.

Further the clause no. 7 of the agreement copy filed by the complainant clearly indicate as “the driver of the vehicle must have in possession of valid driving licence and other related documents should be kept by him” whereas the complainant has not laid any evidence to show that alleged vehicle was being driven by the complainant himself which can attract the income generated out of the use of the vehicle is only meant for livelihood, hence it can be safely hold that the complainant engaged his vehicle only to render service to the O.P.No.1.

During the hearing, the A/R for O.P.No.1 vehemently argued before us stating that the complainant engaged his alleged vehicle to provide service to the O.P.No.1 for which he participated in the alleged tender call noticed of O.P.No.2, after accepting the terms and conditions as mentioned in the agreement made between them and the complainant has not paid any money to avail any type of services of the O.P.No.1 rather the O.P.No.1 was paying hire charges to the complainant to avail service, as such the said conditions ousted the complainant from the ambit of consumer.  Since the complainant has not appeared at the time of hearing, inspite of the repeated adjournments given to him keeping in view of natural justice to justify himself as a consumer, as such we lost every opportunities to hear him.

8. From the discussions made in the foregoing paras, we feel, the complainant has miserably failed to prove that the alleged vehicle was engaged under the O.P.No.1 for earning livelihood by means of self employment and he has not availed any type of paid service to the O.Ps as provided under Section 2(1)(o) of the Act.  Hence considering the above provisions of the Act and submissions of the A/R for O.P.No.1, we feel, complainant is not a consumer under the O.Ps, as such he does not deserve to entitle any benefits under the Act.  Hence we do not think that the present case is a fit case for proceeding under the Act, as such we dismiss the case as non maintainable.  

ORDER

Considering the fact and circumstances, the present case is dismissed against the O.Ps.  No order as to costs.  Parties to bear their own costs.

Pronounced in the open Forum on this the 10^th day of August, 2018. 

Issue free copy to the parties concerned.