Delhi

North East

CC/59/2018

Shri Manoj Kumar Tyagi - Complainant(s)

Versus

M/s Rohan Motors - Opp.Party(s)

05 Jul 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 59/18

 

In the matter of:

 

	Shri Manoj Kumar Tyagi S/o Shri Raghubir Singh Tyagi 22-11/B, Manbhari Kunj, Meethapur Extn. Badarpur, New Delhi-110044.	Complainant
	Versus
	M/s Rohan Motors Ltd F9/B1, Mohan Co-op. Industrial Estate Mathura Road, New Delhi-110044	Opposite Party

 

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

02.04.2018 05.07.2019 05.07.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The facts in brief as culled out in the present complaint are that the complainant had purchased a Maruti Suzuki Wagon R LXI bearing registration no. DL 1R TA 9762 for the purpose of running the same as a radio cab (taxi) as a rental cab and got the same attached with Uber Company as was revealed by the complainant during the course of oral submissions and was receiving a fixed amount of Rs. 20,000/- per month from the said company in addition to running based payments for rides executed by the complainant. The subject vehicle however met with an accident on 17.03.2017 and got severely damaged and complainant, acting on the suggestion of the insurance company ICICI Lombard with which the vehicle was insured under Commercial Vehicle Package Policy, handed over the subject vehicle for repairs with OP on 18.03.2017 and OP after duly inspecting the vehicle, assessed the repair work and promised the complainant to deliver the repaired vehicle to him by 20.04.2017. But on the promised date when the complainant visited the OP workshop, the repair work was not completed and no reason was given by OP for the same nor was any specific date of delivery of vehicle given by OP to the complainant. The complainant, feeling harassed issued a legal notice dated 11.05.2017 through his counsel to OP demanding immediate delivery of his repaired vehicle alongwith damages and it was only after the service of the said notice when complainant visited the OP on 18.05.2017, the OP assured to handover the repaired vehicle on 02.06.2017. On 01.06.2017, the complainant received a letter dated 28.05.2017 from OP asking the complainant to collect his repaired vehicle from the workshop (falsely claiming) that the same was lying repaired since 18.05.2017. On 02.06.2017 OP demanded a sum of Rs. 29,000/- from the complainant as sum due after claim settlement from insurance company and also handed over the jobcard retail invoice dated 25.04.2017 for a sum of Rs. 68,060/- and OP delivered the vehicle to the complainant once the complainant paid Rs. 29,000/- as balanced payment in cash and through HDFC credit card. Therefore, vide the present complaint, the complainant has raised a grievance of belated delivery of the subject vehicle by 43 to 46 days from the promised date i.e. 20.04.2017 to 02.06.2017 causing him loss of earning livelihood and maintaining family thereby alleging deficiency of service and negligence on the part of OP for not repairing and delivering the vehicle on the promised date causing him loss and harassment and has prayed for issuance of directions to the OP to pay a sum of Rs. 1,76,000/- to the complainant for inability to ply the vehicle as rental cab computed on average per day earning to the tune of Rs. 4,000/- alongwith compensation of Rs. 1,00,000/- towards mental and physical harassment.

Complainant has annexed copy of jobcard dated 18.03.2017 issued by OP with date of delivery 20.04.2017, copy of retail invoice no. BR17001972 dated 25.04.2017 issued by OP for a sum ofRs. 68,060/- with hand written endorsement Dep Amt 30,799/- as per DO signed by AR of OP with recommendations of ICICI Lombard under Claim No. MOT06444185, copy of legal notice dated 11.05.2017 issued by complainant through counsel to OP alongwith postal receipts and copy of cash receipt voucher and journal voucher dated 02.06.2017 issued by OP in favour of complainant acknowledging payment of Rs. 19,000/- and 10,000/- respectively.

2. Notice was issued to the OP on 14.05.2018 which was served on 23.05.2018. However none appeared on behalf of OP and was therefore proceeded against ex-parte vide order dated 02.08.2018.
3. Ex-parte evidence by way of affidavit was filed by the complainant wherein in addition to exhibiting the documents already filed with the complaint, the complainant exhibited the copy of RC issued by RTO Taxi Unit Burari, copy of Insurance Certificate Cum Policy Schedule issued by ICICI Lombard General Insurance with respect to the subject vehicle and copy of reminder letter dated 28.05.2017 issued by OP to the complainant apprising of completion of vehicle repair job done on 18.05.2017 and claim amount of Rs. 37,261/- received from insurance company on 23.05.2017 requesting the complainant to collect the vehicle immediately.
4. Written arguments were filed by the complainant in reassertion of his grievance against the OP. On directions issued by this Forum to file proof of income loss for delayed delivery as prayed for in the complaint, the complainant instead filed copy of passbook entry of NEFT made by Uber company in the month of February 2017 in complainant’s bank account held with Central Bank of India where weekly NEFT was done by Uber company for plying the said taxi.
5. During the course of oral arguments, two queries were put forth by this Forum to the complainant as to what purpose the vehicle was purchased and whether he was plying the subject vehicle himself as made out by him that the same was being run for earning livelihood by way of self employment to which the complainant categorically submitted that the subject vehicle was purchased for commercial purpose and that he was not plying the vehicle himself and had given it on hire to a third party driver to ply the same.
6. We have heard the arguments addressed by the complainant through his counsel and have carefully perused the documentary evidence placed on record.

The word ‘consumer’ is the fulcrum of the Consumer Protection Act (the Act) and is defined in Section 2 (1)(d) of the Act meaning any person who

buys and 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 that 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.

The Hon’ble National Commission in the judgment of Hajarimal Moonat Vs Kumar Iron Works 1997 (1) CPR 18 had observed that to arrive at a conclusion whether a purchase is for a commercial purpose, it has be decided whether the purchase of goods by the complainant was intended for commercial purpose or whether it was only for the purpose of carrying on a small business in which he was engaged for the purpose of eking out his livelihood by way of self employment. The Hon’ble Supreme Court in the landmark Judgment of Cheema Engineering Services Vs Rajan Singh 1997 (1) CPR 30 (SC) had observed that the word ‘self employment’ is not defined and is a matter of evidence which connotes all together a different concept namely he alone uses the machinery purchased for the purpose of manufacturer by employing himself in working out or producing the goods for earning his livelihood. In the present case, however, not only did the complainant himself admit that he had purchased the said vehicle in question for “commercial purpose” given to third party driver for driving the same as Uber taxi for which he was drawing monthly income in addition to the income per passenger for rounds taken which further strengthen and reinforce the factum of the said vehicle being a commercial vehicle/ tourist taxi. The Hon’ble National Commission in Western India State Motors Vs Sobhag Mal Meena 1991 (1) CPJ 44 (NC) held that the purchase of vehicle for being used as a taxi is a purchase made for commercial purpose and the purchaser is not a consumer within the meaning of Consumer Protection Act. The Hon'ble National Commission in Ajitha Chit Funds (P) Ltd Vs Tata Engineering and Locomotive Co. Ltd (2007) I CPJ 204 (NC) held that a complainant who purchased a car for commercial purpose is not a consumer.

‘Self employment’ has been explained by Hon'ble Supreme Court in Cheema Engineering Services Vs Rajan Singh (1997) 1 SCC 131 as altogether a different concept with connotation that he (purchaser) alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. Therefore, the purpose to which the goods bought are put to use becomes material.

7. In view of the above observations which have come to light corroborated by documentary evidence and statement of the complainant, we therefore, are of the considered opinion that the present complaint does not fall within the ambit of the consumer complaint and the complainant is not a consumer within the meaning of Section 2 (1) (d) (i) of CPA more specifically enforced by the 2003 amendment in the CPA excluding commercial transaction.

We therefore, dismiss the present complaint as non maintainable with no order as to costs.

8.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on  05.07.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member