O R D E R :-( per Mr. B.R. Chandel, President )
There is no dispute that Shri Saroj Kumar, complainant, purchased a Light Goods Vehcile (open body) of the make Mahindra & Mahindra Ltd. No. HP-67-2843 from the opposite party No.2 manufactured by opposite party No.1 on 21-05-2011. The opposite party No.3 is the authorised service station of opposite parites No.1 and 2. The complainant got the said vehicle repaired from the opposite party No.3 on various dates vide job cards and retail invoices Annexure C-1 to Annexure C-10. The job card Annexure C-10 is dated 18-09-2013 on which date the vehicle had covered 59,748 Kms. Thereafter the complainant lodged complaints through e-mails with the opposite parties and also received replies Annexure C-11 to Annexure C-25. The complainant on the basis of affidavit Annexure R-2/B dated 09-10-2013 has sold the vehicle in question in favour of Smt. Sarita Devi, who has also deposed affidavit Annexure R-2/C dated 09-10-2013.
2. In view of the above stated undisputed facts the complainant has claimed that the opposite parties be directed either to replace the vehicle or remove the defects of the vehicle or refund Rupees 5,15,000/- i.e. the cost of the vehicle along with compensation of Rupees 50,000/- and cost of the litigation on the grounds that after the purchase of the vehicle, it was found that pick up of the vehicle was not proper and it was having some defects, hence complained to the opposite party No.2. The opposite party No.2 directed the complainant to get the defects removed from opposite party No.3 and accordingly he took the vehicle to the opposite party No.3 several times, but the opposite parties failed to remove the defects hence the complainant suffered a loss of Rupees 10,000/- per month because the same has been parked since July 2011 and as such the complainant is unable to make repayment of the loan instalments which amounts to deficiency in service.
3. The opposite party No.1 disputed the case set up by the complainant and has set up the defence that the vehicle in question was perfectly alright and did not have any manufacturing defect. The opposite party No.1 has set up further defence that the complainant is not a consumer because she has purchased the vehicle for commercial purpose hence the complaint is not maintainable.
4. The opposite party No.2 has also disputed the case of the complainant and has set up the defence that there was no manufacruring defect in the vehicle at the time of the purchase and the complainant has not come before this Forum to seek relief with clean hands.
5. In view of the said controversy between the parties to the complaint, the first question arises for determination as to whether the complainant falls within the definition of the consumer as envisaged under Section 2(1)(d) of the Consumer Protection Act.
6. The Registration Certificate of vehicle No. HP-67-2843 is available on record, according to which the class of vehicle is ‘Light Goods Vehicle’ , the unlaiden weight of which is 1680 Kg and laiden weight is 2930 Kg. The type of the body is ‘open body’. The complainant in para No.7 of the complaint has averred that she is suffering a loss of Rupees 10,000/- per month as vehicle in question has been parked since July 2011, whereas, as per retail invoice Annexure C-9 dated 30-08-2013 the vehicle had run 51,601 Kms and as per job card Annexure C-10 it had run 59,748 Kms. The opposite party No.1 in paras No.1 and 2 of the reply has taken up a specific defence that the complainant has purchased the vehicle for commercial purpose and the vehicle in questionis a commercial vehicle hence the complainant does not fall within the definition of the consumer, and as such the complaint is not maintainable.
7. The complainant has filed rejoinder and thereby disputed that he had purchased the vehicle for commercial purpose. In reply to paras No. 1 and 2 the complainant has specifically denied that the complainant had purchased the vehicle for commercial purpose. It is also denied that Mahindra GENIO is a commercial vehicle. The said averments made in the rejoinder are quite contradictory to the pleadings made in the complaint. The vehicle has been registered as a Light Goods Vehicle as per Registration Certificate and the complainant in the complaint has claimed that she is suffering a loss of Rupees 10,000/- per month as the same has been parked since July 2011. The complainant has neither pleaded nor proved that she has purchased the vehicle in question exclusively for the purpose of earning her livelihood by means of self employment, hence, in the opinion of this Forum, the complaiant does not fall within the definition of consumer after coming into force Amended Act 62 of 2002 w.e.f. 15-03-2003. Section 2(1)(d)(i) was amended by an Act of 62 of 2002 which came into force w.e.f. 15-03-2003 and the same reads as under :
“2(1)(d)(i) buys any goods 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 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“
In the explanation, an exception has been created which reads as under :
“ 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;
8. In view of the above stated established and undisputed facts this Forum is bound to conclude that the complainant does not fall within the definition of consumer as envisaged under Section 2(1)(d) of the Consumer Protection Act, 1986, hence the complaint is not maintainable. By taking this view this Forum is fortified by the law laid down in case Shri Shankar Singh Versus M/s Srei Infrastructure Finance Ltd. & Others reported in latest HLJ 2012 (H.P.S.C.D.R.C.) 498, Birla Technologies Ltd. Versus Neutral Glass and Allied Industries Ltd. reported in 2011(1)CCC 301 (SC) and Shri Surinder Kumar Versus The Manager, Varsha Automobiles (Swaraj Mazda), Sales Office, F.A. No. 136/2010 decided on 28-06-2012 by H.P.S.C.D.R.C. Shimla, camp at Dharamsala.
RELIEF:
In view of the findings recorded and law cited supra, the complaint is dismissed being not maintainable. No orders as to cost. The certified copy of this order be sent to the parties free of cost, as per rules. The file, after its registration and due completion be consigned to the records.
ANNOUNCED AND SIGNED IN OPEN COURT
ON THIS THE 16TH DAY OF JANUARY, 2015
(B.R. Chandel )
President
(Th. Digvjay Singh) ( Sushma Sharma)
Member Member
