FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT          

             The facts leading upto the present complaint are that the complainant purchased a vehicle being Model “Extreme SD BS-VI”, Engine No.  G2408515C022450, VIN No. MCLSAC8XPPH009298 manufactured by OP-5. International Cars & Motors Ltd. from  the OP-1 Body Automobiles. The price of the vehicle is Rs. 11,59,727/- and the said vehicle was purchased through the financial assistance of OP-7 United Bank of India. OP-1 being the authorized dealer of OP-5 did not handover certificate of   “in built speed governor meter” which is essential for fitness of any commercial vehicle.

            Complainant further averred that inbuilt speed governor meter is to be required at the time of certificate of fitness of commercial vehicle. On account of non-providing the said certificate complainant did not able to get certificate of fitness of the vehicle from the MV Department, Government of WB and also failed to ply the vehicle on road. As a result, the vehicle is lying on ideal condition since 12.07.2018 and he failed to repay the EMIs of term loan to the OP-7, UBI. OPs 5 & 6 have stopped to manufacture the vehicle being Model  “EXTREME BS-IV” since 2014 and despite that the OPs 1 to 4 sold the vehicle to the complainant suppressing the material facts. Despite several request, the OPs did not handover the said certificate for which the complainant is suffering a huge financial loss.

            Alleging deficiency in service and unfair trade practice on the part of the OPs, complainant filed the instant complaint before this commission.

            Complaint is resisted by the OPs 1 to 4 by filing separate WV. The answering OPs raised the preliminary issue of maintainability of the complaint and also raised that complainant is not a consumer under the CP Act as he had purchased vehicle for his catering business. Complainant purchased the vehicle being Model “EXTREME BS-IV” from OP-1/Distributor on 10.05.2016. Answering OPs follows the Rules & Regulations as laid down in Central Vehicle Rules, 1989 and M V Act, 1988. Procedures and Guidelines  regarding SLD has been communicated by the Ministry of Road Transport and Highways, Government of India vide No. RT-11017/13/2005-MVL dated 16.06.2016  and such guidelines strictly followed with effect from 31.10.2016. Complainant had purchased the subject vehicle prior to Notification No. RT-11017/13/2005-MVL  dated 16.06.2016. Thus, the claim of the complainant is not tenable. There is no deficiency in service or unfair trade practice on the part of the answering OPs.

             In view of the aforesaid facts and circumstances, the answering OPs have prayed this commission to dismiss the present complaint.

            OPs 5 & 6 have also contested the case by filing WV in which they have denied the material facts. The answering OPs took plea that the complainant in not a consumer under the provision of CP Act and he used the vehicle for commercial purpose. The liability of the answering OP is limited to repair any defect of the vehicle within warranty period and there is no allegation of defect of vehicle during warranty period.  The answering OPs being the manufacturer never deals with any customers directly and their dealers purchase vehicles from the answering OPs on payment basis and thereafter sell it to their customers against invoice. The subject vehicle bearing registration  No. WB19H4249 is registered in the name of M/s Mahabhoj Caterer. The Vehicle was purchased on 10.05.2016 and since then complainant used it for commercial purpose. The vehicle manufactured by the answering OPs was not a transport or commercial vehicle. Thus, there is no need to issue SLD  certificate. The subject vehicle never came within the purview of the Notification dated 04.01.2016 of the Government of West Bengal. The complaint is not maintainable and it liable to be dismissed.

            Despite service of notice, OP-7 did not turn up to contest the case by filing WV. Thus, the case runs ex parte against the OP-7.

            We have gone through the pleadings of the parties, their evidence and documents on record.

            Admitted facts of the case are that complainant purchased the subject vehicle being Mode “EXTREME BS-IV” Engine No.  G2408515C022450 from OP-1 on availing term loan of Rs. 9,27,700/- for his  SRTO business and vehicle was manufactured by OPs 5 & 6. It is also true that the subject vehicle registered in the name of M/s Mahabhoj Caterer. The OPs 5 & 6 being the manufacturer follows the Central Vehicles Rules,  1989 and Motor Vehicles Act,  1988. The Ministry of Road  Transport and Highways, Government of India vide Notification No. RT-11017/13/2005 MVL dated 16.06.2016 communicated the guidelines for fitment of speed Limiting Device (SLD). It is not in dispute that the Government of West Bengal vide Notification No. 1939 (50) –WT/3M-69/2007(Pt.1) dated 22.05.2017 issued guidelines regarding Retro-fitment of speed Limiting Device  (SLD) in existing transport vehicle. Since the date of purchase complainant has been plying the subject vehicle and no such certificate of SLD was  demanded from the manufacturer. The vehicle manufactured by the OPs 5 & 6 is not a transport vehicle. The gross weight of vehicle is 2510 Kgs and its seating capacity is also less than required by the said  notification. The subject vehicle is not covered under the above notification as it was manufactured prior to such notification. The subject vehicle is not an Omnibus and its weight is 2500 Kgs. The notification dated 22.05.2017 is for the vehicle having seating capacity for more than eight persons and vehicle weight is 3500 kgs plus. In our opinion, there is no deficiency in service and unfair trade practice on the part of the OPs as the subject vehicle was manufactured prior to notification dated 22.05.2017.

            In the present case, the OPs have alleged that the complainant purchased the subject vehicle for commercial purpose and on perusal of the record; we find materials which shows that the complainant is engaged in business of catering. Subject vehicle is purchase by the complainant is of commercial category. Complainant has pleaded in the complaint that he is plying the same for earning his livelihood. Admitted fact the subject vehicle is registered in the name of M/s Mahabhoj Caterer  and it can be said that he is earning profit and large scale. Catering business cannot be done without appointing employees.  OPs pleaded in their WV that complainant is running a catering business and subject vehicle is registered in the name of M/s Mahabhoj Caterer. Thus, the subject vehicle was used for commercial purpose since the date of purchase and the case of the complainant falls within commercial category. So, the complainant is not falls within the definition of consumer of Consumer Protection Act.

            In view of our above discussion and based on proper appreciation of evidence and documents available on record, we find no merit of the case and the consumer case is hereby dismissed on contest against the OPs 1 to 6 and ex parte against OP-7. No order as to costs.

            Copy of this order to be provided to the parties as per Rules. Judgment be uploaded on the website of the commission for perusal of the parties.

            The complaint could not be decided within the statutory period due to heavy pendency of court cases and due to pandemic of covid-19.

File be consigned to the record room.