Coram: Mohd. Anwar Alam, President
Vikram Kumar Dabas, Member
ORDER Dated: 10-02-2017
Mohd. Anwar Alam, President
The complainants have filed this complaint on 02.09.2014 and alleged that
2. That the complainant is a college going Student and could not appear before the Hon’ble Forum on each and every date of hearing, therefore, he has appointed his mother namely Smt. Sudesh Rani as h±s Special Power of Attorney. The SPA is attached herewith
3. That on 31.08.2014, the complainant purchased a Mobile Phone Sony Xperia C Elk vide Serial No.353267065442483 from the Opposite Party No.1 for a total sum of Rs.19,768/ in cash vide Invoice No. SLF02A104030011215 dated 31.08.2014. The said amount includes insurance of the said mobile phone for further one year, as the said insurance has been provided by Opposite Party No.2. It is pertinent to mention here that at the time of PRAYER:
It is, therefore, most respectfully prayed that this Hon’ble Forum may kindly be pleased to:
(a) Direct the Opposite Parties to replace the said mobile phone/instrument Xperia C Blk make Sony with a new one with fresh guarantee or refund the cost of the handset of Rs.19,768/- along with interest @ 18% per annum;
(b) Direct the Opposite Parties to pay a sum
of Rs.50,000/- to the complainant,
jointly or severally, towards
compensation for the harassment,
suffering mental pain, languishment,
agony, loss of time, loss of money etc.
which has been caused due to the
deficient service of the Opposite
Parties;
(c) Direct the Opposite Parties to pay a sum
of Rs.20,000/- to the complainant,
- In reply, OPs admitted opening of saving account no. 3193482638 with OP2 and denied rest of the allegations made in the complaint and prayed to dismiss the complaint with heavy cost.
- The complainant has filed rejoinder to the written statement and denied the objections made by OPs and supported his complaint.
3. In support of his complaint complainants filed their own affidavits along with documents i.e. complaint dated 18.06.2013 lodged with banking commission ( Ex. CW-1/1), Photostate copy of courier dated 18.06.2013 (Ex. CW-1/2) , loan application form (Ex. CW-1/3) , Consent Letter ( Ex-CW-1/4), property Mortgage letter (Ex-CW-1/5), Valuation Report (Ex. CW-1/6), Photographs ( Ex. CW-1/7 & Ex. CW-1/8), Layout plan of Property (Ex. CW-1/9). Statement of summary ( Ex.CW-1/10), Complaint to Secretary of Congress party (Ex. CW-1/11), Complaint to the then Finance Minister, Union or India (Ex. CW-1/12), Medical report issued by the Ram Manohar Lohia Hospital (Ex.CW-1/13), Receipt of Complaint to the Banking Ombudsman is ( Ex.CW-1/14), Legal Notice to the Chairman and Branch Manager ( Ex.CW-1/15) and Courier Receipt dated 05. 08. 2014 (Ex. CW-1/16).
- In support of reply OPs filed affidavit of Ram Sahaya Meena (Chief Manager) along with documents i.e. photocopy of power of attorney (Annexure –R1) , copy of loan application form (Annexure-R2), copy of letter dated 05.03.2013 (Annexure-R3) , copy of letter dated 20.03.2013 (Annexure R-4), copy of legal notice dated 21.05.2013 (Annexure R-5) , Copy of reply dated 07.08.2013 to legal notice along with postal receipts (Annexure R-6) , legal notice dated 06.05.2014 (Annexure R-7) and reply dated 03.06.2014 along with postal receipt (Annexure R-8) and copy of letter dated 06.04.2013 (Annexure R-9).
- Both the parties filed their written arguments.
- We have heard the arguments and considered the evidence led by the parties and their written and oral arguments. In this case points to be considered are as under:-
- Whether complainant is a consumer?
(b) Whether there is any deficiency in service on the part of the OPs?
(c) Relief.
8. Mere perusal of the complaint clarified that complainants applied for overdraft facility of Rs. 25 Lakhs for the development of their business. It is nowhere mentioned in the complaint that they had applied for overdraft facility of Rs. 25 Lakhs exclusively for the purpose of earning of livelihood by means of self employment.
9. Hon’ble Supreme Court in the case Laxmi Engineering Works V/s PSG Industrial Institute, AIR 1995 SC 1428 in Para no. 24 held as under.
(i)the explanation added by the Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18.06.1993 is clarificatory in nature and applied to all pending proceedings.
(ii)Whether the purpose for which a person has bought goods is a ‘commercial purpose’ within the meaning of the definition of expression ‘consumer’ in section 2 (d) of the ACT is always a question of fact to be decided in the facts and circumstance of each case.
(iii)A person who buys goods and use them himself, exclusively for the purpose of earning his livelihood, by means of self employment is within the definition of the expression ‘’consumer’’.
- Looking to the above facts and circumstance we are of the considered opinion that complainants are not consumer within the provision of Section 2 (1) (d) of the Consumer Protection Act 1986 hence present complaint of the complainants is not maintainable in this forum. As this complaint is not maintainable, therefore, there is no need to decide the remaining points of consideration. Hence complaint is dismissed accordingly.
- Both the parties will bear their own cost.
- Copy of the order made available to the parties free of cost as per law.
File be consigned to record room.
Announced on………
