Orissa

Jharsuguda

CC/26/2014

Nirmal Charan Sahu S/o Late Harihar Sahu. - Complainant(s)

Versus

Dukhishyam Khiladi Talpatia,Jharsuguda - Opp.Party(s)

S.N Paseyat

09 Sep 2014

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JHARSUGUDA

 

CONSUMER  COMPLAINT  CASE NO. 26 OF 2014

 

Nimai Charan Sahu (64 Yrs),

S/O- Late Harihar Sahu,

RO: Gandhi Chowk, PO: Gandghora,

PS: Brajrajnagar, Dist - Jharsuguda, Odisha…………….……………Complainant.

      

                                           

Versus

 

Dukhishyam Khiladi, (44 Yrs.),

S/O: Sundar Khiladi,

RO/PO: Talpatia,

PS/ Dist : Jharsuguda  Odisha……………….………..….…..…..…….Opp. Party.

                              

Counsel for the Parties:-

For the Complainant                                Shri S.N.Pasayat, Adv. & Associates.

For the Opp. Party                                   Shri L.K.Behera, Adv. Associates.

 

Date of Order: 09.09.2014

 

Present

                                                                   1. Shri S. K. Ojha, President In-Charge.

                                                                    2. Smt. A. Nanda, Member (W).

 

Shri S.K. Ojha, President In-Charge :-  The brief facts of the complainant’s case is that, the complainant has purchased one Bolero XL vehicle bearing Regn No.OR-23-B-4384 from the O.P who is the actual registered owner of the vehicle by executing an Agreement to Sale with certain terms and conditions.  The said vehicle was financed by Magma Fincorp Ltd. to the O.P on hire purchase scheme.  The complainant has pay Rs.70,000/- only on the date of agreement and spent Rs. 70,000/- more towards repairing on spare parts in the said vehicle .  As per the agreement the financier shall change the ownership of said vehicle in favour of the complainant after full payment. The complainant has already paid all the dues amount to the financier through one Surendra Meher & others and the financier has issued No Objection Certificate in favour of the O.P on dtd. 12.06.2012. The O.P had not change the ownership in favour of the complainant after being repeatedly request by the complainant, hence this case.           

After being noticed, the O.P. appeared through its counsel and filed written version by submitting that, the case in not maintainable as the O.P is not a dealer or a seller in regular course of business, thus the complainant is not a consumer as per the provision of Consumer Protection Act.  The case should be decided by the civil court and prayed for dismissal of the case.

 

Heard from the parties.  Perused the documents available on the case record.  The O.P is the registered owner of the vehicle in question (which has been financed by Magma Fincorp Ltd. ).  By executing an Agreement to Sale the O.P agreed to sale the said vehicle to the complainant on certain terms and conditions while the  vehicle was under finance period.  The said financier Magma Fincorp Ltd.,  has issued No Objection Certificate in favour of the O.P after clearing of all dues.  The O.P challenged on maintainability of this case as the complainant is not a consumer as per the provision of the Consumer Protection Act, 1986.  It has to be decided first whether the O.P shall be considered as a ‘trader’ or any ‘service provider’ or not as per the provisions of the Consumer Protection Act, 1986. The terms ‘service’ and the term ‘trader’ have been defined in U/S-2(1) of the Consumer Protection Act, 1986 as follows;-

Section 2(1)(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;

Section 2(1)(q)            "trader" in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof;

 

As per the above definitions, the O.P shall neither be treated as a ‘service provider’ nor a ‘trader’ in the present case, as well as the complainant shall also not to be considered as the ‘consumer’ of the O.P ,  rather the O.P. has executed an agreement of contract with the complainant having certain terms and conditions thereon and incase of violation of any terms and conditions of the agreement, the matter of dispute should be decided in the proper court of law.

 Hence, we are inclined to dismiss the case with no costs with a suggestion to file the mater in the proper court of law for proper adjudication of the matter.    

            Accordingly the case is disposed of.

Order pronounced in the open court today the 9^th day of September’ 2014 and copy of this order shall be supplied to the parties as per rule.              

                                                                                   I Agree.                 

                                                                                                           

                                                                     Sd/- A.Nanda, Member (W)       Sd/- S. K. Ojha, President In-Charge.                  

                                                                      Dictated and corrected by me.

 

                                                       Sd/- S.K.Ojha, President In-Charge.