This case has been filed by Nirupam Ghosh S/O Arun Kumar Ghosh of Village Itahar Taranchi of Uttar Dinajpur, Under Section 12 of Consumer Protection Act, 1986 against Magma Fin. Corpn. Ltd. and others with their office at Kolkata and Malda, praying for Rs. 986000/- on various grounds for deficiency in service by the opposite parties.
The petitioner filed this case stating that the complainant applied for loan from the opposite parties and in spite of their assurance they did not disburse loan amount and hence this case.
The further case of the petitioner is that though O.P’s received processing fees through their wing/O.P.-5, O.Ps did not adhere to assurance given to complainant regarding loan payment.
The O.P’s 1 to 4 appeared and file written version. O.P.5 did not appear and made ex parte in this case. O.Ps in their written version agreed that they being a finance Company provides financial assistance and here they started the process of verification for providing loan to complainant and ultimately decided not to disburse the loan amount to the complainant and they intimated the same to the complainant. At the same time they stated in their version that the complainant does not fall under purview of the definition of a “ Consumer ” u/s 2(i)(d) of the Consumer Protection Act and they also categorically answering to the paragraph wise complaints of the complainant and prayed for dismissal of the case with costs.
On the basis of respective case the following issues are framed:-
- Whether the case is maintainable?
- Whether there is any cause of action to file this case?
- Whether there has been any deficiency in service on the part of the
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- Whether the complainant is entitled to get the reliefs as prayed for?
: DECISION WITH REASONS::
Issue Nos. 1,2,3 and 4
All the issues are taken up together for the sake of convenience and brevity of discussion and to skip of reiteration and also all these issues are interrelated and interdependent.
In support of his case the petitioner submitted 24 documents Ext.-1 to Ext.–24. Ext.-1 is the letter on behalf of O.Ps 1 to 4. Ext.-2 is related to Registration of vehicle. Ext.-3 is letter given to complainant by O.Ps related to acceptance of him as customer. Ext.-4 is a document for Insurance Policy. Ext.-5 to Ext.-8 is related to Government papers related to vehicle proposed to purchase on loan from O.P’s. Ext. 9 is policy schedule and certificate. Ext.-10 is certificate of registration. Ext.-11 is the document of O.P.5 receiving Rs. 3650/- from complainant Nirupam Ghosh.
To prove the case Petitioner Nirupam Ghosh was examined as P.W.-1 while the defense did not produce any evidence. The petitioner Nirupam Ghosh stated in his evidence that he wanted to purchase one truck from one owner taking loan from O.P.-1and the said vehicle was of commercial type. He also stated while he applied for loan on 27.04.2013 and the O.Ps informed him for their inability for giving loan to him on 14/15.05.2014 that is after about 17/18 days. He also stated in his evidence that he is a stockist of seasonal crops and seller of those and at the sametime on cross-examination he confirmed that he earns his livelihood plying vehicle through all over West Bengal and confessed that he did not mention in his petition regarding his stature as stockist of crops and selling those in markets.
It is also evident from the evidence of P.W.-1 that the said vehicle hypothecated by Shriram General Insurance Co. Ltd. to the previous owner Golenur Bibi and the petitioner purchased the said vehicle from her and the Insurance Policy was issued in the name of the petitioner.
It is evidence on cross-examination that petitioner is not aware regarding fulfillment of instalments to financer but we are getting the documents where it is revealed that petitioner was enrolled as a insurer of the said vehicle from Sriram General Insurance Company Ltd. before 20.06.2014 and thus he was the owner of the vehicle and there is no agreement or whatsoever any paper that is agreement regarding purchase of the vehicle or partly paid or partly promised and as per definition of u/s 2(d)(i) he is not a ‘Consumer’. Not only that from the very reading of the complaint of the petitioner that he is a businessman and the vehicle is of commercial nature and of all India permit which also hit u/s. 2(d)(ii).
From the four corners of the petition we are getting he is a businessman and he purchased the vehicle for commercial purpose and the petitioner in no way interlinked to O.P.1 to O.P.5 as there is no agreement.
O.Ps did not adduce any evidence but argued that there is no breach of contract with the complainant as there was no agreement made between themselves and the complainant and they confirmed that the amount of Rs.3650/- taken from complainant was for processing the application of loan of the complainant.
On the other hand the Ld.Lawyer for the petitioner argued that the petitioner received NOC from O.Ps and that was not challenged in cross-examination. It is also their argument that the complainant wanted to purchase the vehicle taking loan from the O.Ps for the purpose of livelihood and as such he is a consumer and his grievances will be registered as a consumer case. At the same time for the deficiency on the part of the O.P’s the vehicle remained idle for a long period and the petitioner was compelled to incur huge expenditure for the vehicle and also put that as per “definition of service” being here in this case, there is obviously breach of contract by the O.P’s.
This Forum looking into the documents and the evidence submitted and the arguments placed, found that the complainant in his petition straightly mentioned that his profession is business and he is a businessman. He also provided written statement that he used to deal his business throughout West Bengal of transportation for his livelihood. In his evidence he placed that he is a stockist of seasonal crops and seller of the crops and at the same time he mentioned in Bengali language ‘ Ami Paschimbanger madhye gari chaliye jibika nirvar kari’ ( I carry my livelihood plying vehicles throughout West Bengal).
Now as per above statements and clarifications this Forum finds that the petitioner is a businessman on one hand and on the other ply vehicles for livelihood.
As per dictionary meaning ‘Business-man’ is one doing trade. At the sametime as per them, the ‘trade’ means buying and selling and is also ‘commerce’. As per Oxford dictionary ‘business’ is a person’s regular occupation who works in commerce. ‘Commerce’ stands for trade or buying and selling at a large scale intended to make a profit.
The Forum finds that there is clear conflict between the written complaint of the petitioner and the statement in evidence related to livelihood question of the petitioner.
The Forum reaches to the conclusion that the petitioner is a businessman both from the trade of crop goods and vehicle plying all over the West Bengal. The petitioner is not carry – forwarding his livelihood by means of self – employment and thus his profession is linked to “Commercial Purpose” and his loan application is related to commerce. As per 2015 (2) CPR 180 (NC) it says; “A person who hires or avails service of a service provider for a commercial purpose, is not a consumer, however, commercial purpose does not include the services availed by a person exclusively for the purpose of earning his livelihood by means of self-employment.”
As per 2015 (2)CPR 246 (NC) it states; “What is ‘ Commercial Purpose’ is a question of fact to be decided in fact of each case. It is not value of goods that matters but purpose for which goods brought are put to same would be equally applicable to for hiring on availing services.”
The petitioner is a stockist for seasonal crops. The word ‘stockist’ means a retailer that stocks good of a particular type for sale. Again the word ‘retailer’ is linked to the sale of goods in small quantities. Here petitioner though deals with small quantities of goods as a stockist but did not mention this as his livelihood and as it is of repeatative nature, it appears as trade and thus has commercial purpose.
It appears that on the question of livelihood by means of self-employment, one single person, cannot take up journeying vehicle –plying job and the job of seasonal stockist parallely except commercial lines and the Forum concludes that the complainant in this case being actually a businessman cannot stand as a Consumer u/s 2(d)(ii) of the Consumer Protection Act, 1986. The case is not maintainable and there is no cause of action to file the suit and hence the complainant is not entitled to any relief in this case.
On the other hand, the petitioner did not prove the deficiencies of the O.Ps as there is no agreement between themselves on the issue of loan prayer of petitioner and loan disbursement steps by O.Ps.
In the result, the case fails.
Proper fee paid.
Hence, it is ordered
that the D.F.C. Case No. 58/2014 be and the same is hereby dismissed without cost.
A copy of this order be given to both parties free of cost.
