Per Smt.S.P. Lale – Hon’ble Member:
(1) This appeal is filed by original Complainant whose complaint was dismissed by the Consumer Disputes Redressal Forum, District Nashik on 29.09.2009 on the ground that the Complainant is not a consumer as per Section 2(1)(d)(ii) of the Consumer Protection Act.
(2) There is delay of one day in filing this appeal. Therefore, Misc.Application No.1667/2009 for condonation of delay is filed. The delay is not deliberate or intentional and therefore, we are inclined to condone the delay. Hence, Misc. Application No.1667/2009 for condonation of delay is allowed.
(3) Facts giving rise to this appeal are as under:
Complainant had purchased vehicle Eicher Tempo No.MH-15-AG-8521 from Opponent no.1 on 04.04.2004 and had availed loan from Opponent no.2 for purchase of the said tempo. On 09.03.2005 the said tempo met with an accident. After said accident the Complainant delivered the said vehicle to Opponent no.1 for repairs on 15.03.2005. However, the said vehicle was also insured with National Insurance Co., but, according to Complainant due to non-cooperation of Opponent no.1 the Insurance Company refused to settle the claim of the Complainant. The Complainant stated that the Opponent no.1 in collusion with Opponent no.2 sold the said vehicle for throwaway price and caused great loss to the Complainant. Opponent no.2, on 17.07.2006 sent demand notice for the payment of `4,55,153/-. The Complainant in reply called for all details of the said vehicle loan, but Opponent no.1 did not furnish any details. Therefore, Complainant was constrained to file present complaint before the District Forum, Nashik.
(4) After filing the complaint before the District Forum, the Opponents though duly served failed to file their written versions. Therefore, the District Forum passed ex-parte order against both the Opponents and partly allowed the complaint against both the Opponents and directed Opponents to give possession of tempo to the Complainant within one month and to pay `1,00,000/- towards mental agony and also directed to pay cost of `3,000/- to the Complainant. After passing the said ex-parte order both the Opponents have filed appeal bearing no.795/2007 and Appeal No.810/2077 before this Commission on 25.06.2007. After hearing both the parties the this Commission vide its order dated 04.02.2008 partly allowed the appeal and remitted back the complaint to the District Forum for deciding afresh after taking written statement and documents of the original opponents on the record.
(5) Therefore, District Forum after accepting written version of both the Opponents and hearing both the parties afresh, dismissed the complaint vide its order dated 29.09.2009. Hence, present appeal is filed by the original Complainant.
(6) Heard Mr.Omprakash Bharindwal, Advocate for the Appellants. Mr.K.B. Chandwadkar, Advocate for Respondent No.1 and Mr.S. Hussain, Advocate for the Respondent No.2.
(7) We perused the copy of memo of appeal and impugned order and we are finding that order passed by the Forum below appearing to be just and proper and sustainable in law. The District Forum in its order rightly given its finding that the deceased Complainant was engaged in business of transportation and he had employed services of other persons, i.e. driver, cleaner etc. The Complainant in his complaint also admitted that he had purchased a tempo for his business purpose. Therefore vehicle bearing No. MH-15-AG-8521 was not source of livelihood of the Complainant. The Complainant was not dependent for his livelihood on the income through the said vehicle and he was earning profit out of said vehicle.
(8) Therefore, the Opponent no.2 had acted within the limits of the contractual obligations arising between it and the Complainant. It had committed neither any deficiency in service nor practiced unfair trade practice. Complainant had used the said vehicle for the commercial purpose and therefore, Complainant was engaged in the business of transportation and was using for earning profit with the help of the employees and therefore, there is no merit in the appeal filed by the original Complainant. Appeal is devoid of any substance an hence, we pass the following order:
O R D E R
(i) Appeal stands dismissed.
(ii) No order as to costs.
(iii) Inform the parties accordingly.
Pronounced on 27th January, 2011.
Pronounced on 27th January, 2011.
