PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 29th day of October 2011
Filed on :25/11/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No.667/2010
Between
Pramesh K.D., : Complainant
H.No. 34/678 A, (By Adv. Rajesh Vijayendran,
Kalvampara house, M/s. Rajesh & Rathish, 35/191,
Mamangalam, Palarivattom P.O, Automobile road, Palarivattom,
Cochin. Kochi-682 025)
And
1. M/s. Mercedes-Benz : Opposite parties
India Private Ltd, E-3, (O.P. 1,2,3 by Adv. T.C. Krishna
MIDC, Chakan, Phase-III, Sreesadan, Azad road, Kochi-17)
Chakan Industrial Area,
Kuruli & Nighoje,
Tal: Khed, Pune-410 501,
India.
2. The Regional Sales Manager,
M/s. Mercedes-Benz
India Private Ltd, E-3,
MIDC, Chakan, Phase-III,
Chakan Industrial Area,
Kuruli & Nighoje,
Tal: Khed, Pune-410 501,
India.
3. The Sales Manager,
M/s. Mercedes-Benz
India Private Ltd, E-3,
MIDC, Chakan, Phase-III,
Chakan Industrial Area,
Kuruli & Nighoje,
Tal: Khed, Pune-410 501,
India.
4. The Manager,
M/s. Rajasree Motors ( P) Ltd.,
2/393, NH 47, Kundanoor Jn,
Maradu P.O., Kochi, KL,
India-682 304.
O R D E R
A Rajesh, President.
At the threshold the opposite parties in their version raised the question of maintainability of this complaint. According to them the complainant is engaged in the business of travel and tour operation and is running an establishment under the name “Chariot Tours & Travels” . It is stated that the complainant has a large fleet of vehicles including a number of Mercedes Benz cars. It is further stated that the complainant has purchased the car solely for commercial purpose and as such the complainant will not come within the purview of Consumer as defined under Section 2(1) (d)of the Consumer Protection Act. The learned counsel Mr. T.C. Krishna relied on the decisions rendered by the Higher Judiciary.
i. Laxmi Engineering Works V. PSG Industrial Institute II (1995) CPJ (SC)
ii. Interfreight Services Pvt. Ltd. V. Usha International & Anr. 1 (1995) CPJ 128 (NC)
2. On the contrary the learned counsel Mr. Rajesh Vijayendran appearing for the complainant vehemently contended that the complainant had purchased the car for running it as a tourist taxi, and he himself is driving the vehicle as means of self employment for the purpose of earning his livelihood. The leaned counsel relied on ;the decision rendered by the Hon’ble Apex Court in Madan Kumar Singh Vs. District Magistrate Sultampur (2009) 9 SCC 79.
3. We have heard both the learned counsel and gone through the documents on record. The documents go to show that the complainant is conducting a tours and travels by name ‘Chariot’ which is providing various types of vehicles to its consumers which evidently goes to show that the complainant is only a service provider but not a consumer. In that case the complainant has purchased the vehicle from the opposite parties only to add to the fleet of his vehicles. So naturally he has not been conducting the business for earning his livelihood by means of self employment and he can not be termed as a consumer as per section 2(1)(d) of the Consumer Protection Act. Especially when the Hon’ble Appex Court held in Birla Technologies Ltd Vs. Neutral Glass and Allied Industries Ltd. 2011 CTJ 121 (SC) (CP) that
“ In view of the findings of the National Commission that the goods sold by the appellant to the respondent/complainant amounted to ‘goods’ and that such goods were purchased for commercial purpose of earning more profits. there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 01-08-2000. In that view, it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15-03-2003 by way of the amendment by the same Amendment Act, as it is nobody’s case that the good brought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent’s livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto”.
In the above circumstances we are of the firm view that the complainant has purchased the vehicle of the opposite parties for commercial purpose and he is not a consumer as defined in the Act. Since the remedy of the complainant lies elsewhere the proceedings in this complaint stand closed with a direction to receive back the complainant and related documents from this Forum to file before the appropriate authority if so advised.
Pronounced in the open Forum on this the 29th day of October 2011
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
