JUDGMENT
Shri A.K.Patra,President
The captioned consumer complainant is filed by the complainant named above inter alia alleging deficiency in service and unfair trade practice for misleading advertisement and for non delivery of registration & insurance paper of the purchased vehicle and for non delivery of a Rotravetor as promised to deliver along with the purchased tractor & trolley.
Complainant seek for the following relief (a) to hold the OP No.1 liable for unfair trade practice and deficiency in rendering fair services to the complainant(b) to hold the OP No.2 & 3 liable for giving their helping hand in the inaction of OP No.1(c) to hold the OP No.4 liable for overlooking and ignoring the inaction of OP No.1(d)to direct the Op No.1 to take back the tractor & trolley from the complainant and refund Rs.10,11,000/- to the complainant towards unlawfully taken from the complainant along with interest @ 12% from the date of delivery of challan (e) to direct the OP No.2 & 3 to recover the entire dues from the Op No.1, if any against the loan account No.14353700003421 and issue “No Dues Certificate “ and blank cheques to the complainant (f) to direct the Op No.4 to take stringent action against the inaction of OP No.1 at their departmental level (g) to direct the OP No.1 to pay Rs.5850/- to the complainant towards the penalties levied on complainant by RTO Kalahandi for the inaction of OP No.1(h) to direct the complainant to pay Rs.1,00,000/- to the complainant towards mental harassment(i) to direct the OP No.1 to pay aRs.50,000/- to the complainant towards exemplary cost(j) to direct the Op No.1 to pay Rs.30,000/- to the complainant towards the cost of litigation and advocates fees(k) to pass any other order as this Commission deems fit and proper in the interest of justice.
Brief facts as stated there in the complaint and emerged from the documents filed there with is that the complainant being influenced by the promotional advertisement and offer of OP No.1 who furnished a quotation of Rs.7,46,000/- for tractor and trolley including tax, insurance and registration charges and with a promise of delivery of a Rotravetor along with purchase of tractor and trolley upon which the complainant agreed to purchase a tractor and a trolley for commercial purpose to earn his livelihood on 27.11.2016. It is contended that, the complainant has paid Rs.2,70,000/- to the Op No.1 i.e Rs.2,00,000/- through Cheque vide No.467361 and Rs.70,000/- through cash but no cash memo was issued to him against his payment of Rs.70,000/-. On the same day a tractor (Sonalika DI740 Blue) and a trolley was delivered to him with a promise to delivered the service manual book, Rotravetor , registration and insurance paper after two months by misrepresenting the fact that, the service manual book is needed for registration & insurance and new Rotravetor will arrive at his office in the month of January,2017 and believing the ward of the OP No.1 the complainant took delivery of said tractor and trolley . It is alleged that, the OP 1 has failed to perform his promise and never registered the vehicle, so also promised Rotravetor has been never been supplied to the complainant. The vehicle of the complainant is penalized by the RTO, Kalahandi in want of registration. On being asked, the OP 1 demanded further more price towards registration fee and accordingly complainant was compelled to pay Rs.1,85,000/- to the Op 1 and collected the cash memo from the Op No.1 which is clear instance of unfair trade practice and deficiency in service on the part of Op 1 causing financial hardship and mental agony to the complainant . Hence, this complaint.
On being notice, the Op 1 appeared through their Learned Counsel Shri Satyan Choudhury and filed their written version denying the complaint allegation on all its material particulars.
Preliminarily, the OP 1 raised objection on the maintainability of this complaint as the complainant has purchased the alleged vehicle for the commercial purposeas such he is not a consumer as defined under C.P.Act. It is also alleged that, the complaint is barred by limitation as prescribed under C.P.Act,2019 so also the complaint is not maintainable for non joinder of necessary party.
On merit it is admitted that, the OP 1 is authorized dealer of Sonalika International Tractor deals with sale of new Sonalika Tractor only. The complainant voluntairly expressed his desire to purchase one new Sonalika DI 740 tractor from the OP 1 and also placed an order for a trolley worth Rs.1,15,000/- only from R.K. Engineering Works. It is further submitted that ,the Op No.1 has never circulate any promotional advertisement or any offer for sale of tractor in any form of speaking , writing, print or viewing and also never assured to supply of a Rotravetor free of cost on purchase of tractor . The alleged vehicle is being financed by OP 2 / Bank and the OP 1 has never claim any excess amount than that of the actual price of the vehicle including registration and insurance charges . The alleged vehicle has already been registered before the RTO, Kalahandi vide Registration No. OD 08L 1041 (Tractor) & OD 08L 1042(Trolley) respectively. The OP 1 has complied his part of performance in present case but due to non production of the said vehicle before the RTA Kalahandi for inspection in time by the complainant in spite of repeated approach of OP 1 caused delay in registration of the vehicle. It is further stated that the OP 1 has never asked or demand to pay Rs.1,85,000/- from the complainant and complainant has also never paid Rs.1,85,000/- in cash to the OP 1 as alleged in the complaint petition rather, the complainant has prepared a false cash memo for an amount of Rs.1,85,000/- on 5.9.2019 fraudulently only for the purpose of this complaint for which the OP 1 has lodged an FIR before the Junagarh P.S against the complainant is under investigation . This complaint is filed with a frivolous & vexation plea liable to be dismissed with cost..
The OP 2 & 3 has filed their written version admitting the fact of financing of the vehicle and submitted that, the complainant has not repaying the loan dues . It is further stated that, there is no allegation against the Op No.2 & 3 rather, there is a dispute between the complainant with OP 1 & 4 raised in this case for which the OP 2 & 3 claim to dismiss this complaint against them.
The OP 4 appeared but failed to file their written version and also did not choose to contest the case.
The complainant as well as OP 1 led their evidence by way of affidavit. The facts stated in the affidavit evidence of the complainant is corroborating with the averment of complaint petition so also the facts stated in the affidavit evidence of OP 1 is corroborating with the averment of their written version. OP 2 ,3 & 4 lead no evidence as prescribed under C.P.Act. 2019.
Heard the Parties present. Perused the material available on record. We have our thoughtful consideration on the submission of the learned Counsel for the parties present.
Before discussing other issues as to whether there is any negligence, deficiency in service, unfair trade practice on the part of OPs as alleged by the complainant, we would like to decide the maintainability of this complaint under the C.P.Act.
Section 2(7) of C.P.Act 2019 define “Consumer “ as follows:-“ "Consumer" means any person who- (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
(ii) hires or avails of any service 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 beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.
Explanation. -For the purposes of this clause, -
(a) the expression "commercial purpose " does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods " and "hires or avails any services " includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;
Here in this case, the complainant stated that, the vehicle has been purchased for commercial purpose to earn his livelihood but no cogent evidence placed on record to holt that, the complainant has purchased the alleged vehicle and used the same by him exclusively for the purpose of earning his livelihood, by means of self-employment as such we are of the opinion that, the complainant is not a consumer as defined under the C.P.Act for which the complaint not maintainable under C.P.Act 2019 for adjudication before this Commission . Hence, liable to be dismissed.
Based on the above said discussion this complaint is dismissed as not maintainable. However, no order as to cost. The complainant may take shelter of the proper court of law .
Dictated and corrected by me.
President
I agree
Member
Pronounced in open Commission today on this 19th July,2023 under the seal and signature of this Commission.
Copy of this judgment be provided to the parties free of cost .The judgment be uploaded forth with on the website of the Commission for the perusal of the parties.
