JUDGMENT

Shri A.K.Patra,President

1. 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 papers relating to the purchased vehicle such as  money receipt of all the money paid towards purchase of the vehicle, registration certificate,  insurance certificate & other papers   and for non delivery of  a Rotravetor as it was    promised to free deliver on purchased of said  tractor and trolley.
2. Complainant seek for the following relief (a) direct the OP No.1 either to deliver all the vehicular paper such as  Registration Certificate, Insurance Policy, warranty, service book and Rotravetor to the complainant or refund the entire amount taken from him along with loan amount, down payment, interest and penalties. (b) direct the OP 1 to service the complainant’s vehicle free of cost which is standing in unused condition for last 3 years in his village.(c) direct the OP 1 to pay Rs.50,000/- to the complainant as compensation towards mental agony, (d) direct the OP 1 to pay Rs.20,000/- to the complainant towards the exemplary cost,(e) direct the OP 2 to supervise the function of OP 1 and take all the necessary steps restraining OP 1 from promoting unfair trade practice,(f) direct the Ops  to pay Rs.5000/- to the complainant towards cost of litigation and advocate fees, (g) pass any other relief as this Hon’ble Commission deems fit & proper in the interest of justice, equity and good conscience.
3. Brief facts as stated there in the complaint and emerged from the documents filed there with are that,  in order  to maintain his livelihood the complainant intended to purchase a tractor and  a trolley. In the month of May, 2016 the complainant along with his son- in- law came to Junagarh to purchase one second hand tractor for commercial purpose and thereby they were introduced to OP 1 under the dealership of OP 2. The OP 1 convinced complainant to purchase a new tractor for better outcome by illustrating the printed broacher of Sonalika Tractors & some other promotional offers. The OP 1 supplied a quotation of Rṣ 8,00,262/- for the tractor including registration charges. It is alleged that, the OP 1 entrapped the complainant to purchase the tractor from his showroom by showing various offers and he has also assured the complainant to arrange bank finance. It is further stated that ,the  OP 1 given offer to the complainant that,  if the  complainant purchase the tractor from his showroom, he will  give a Rotravetor free of cost and believing the words of the OP 1, the complainant  agreed to purchase the new vehicle instead of second hand by considering the estimate prepared by OP 1.   The OP 1 asked the complainant to visit the OP 3 who was the friend of OP 1 and accordingly the complainant visited the OP 3 and after submitting all the documents as demanded by OP 3, a loan was sanctioned. The complainant has deposited  a sum of Rs.2,00,262/-  as down payment for finance of Rs.6,00,000/-  and after receiving the total amount of Rs.8,00,262/- the OP 1 delivered the tractor and trolley to the complainant on 31.05.2016. In  the quotation, the OP 1 had calculated the charges towards registration and insurance of Rs.25,000/-  and promised to hand over all the documents along with service manual and Rotravetor free to the complainant within a month but after delivery of the vehicle &  after lapse of almost 3 years also no registration paper or insurance paper or any other documents  or Rotravetor were  not given to the complainant for which the complainant is not able to use his vehicle  and his vehicle is in unused standing position. The complainant repeatedly demanded the OP 1 to supply all the documents and Rotravetor so that he can use his vehicle  but the OP 1 taking undue advantages of his illiteracy did not pay any heed to the legitimate demand of the complainant. The purpose of obtaining loan was frustrated as the vehicle could not be used but the complainant has been paying installments in due course of time to the OP 3 Bank and OP 3 collecting the installments by adding some penalties without informing the complainant and the complainant  is unnecessarily burdened with interest and penalties by the  OP 3. On 02.02.2019 the complainant visited the OP 1 and requested him to supply all the documents and Rotravetor  as promised  by him but the OP 1 denied to attend his grievances for the reason best known to him.  Hence, this complaint.
4. 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. However admitted the facts that subject vehicle was sold to the complainant .
5. Preliminarily the OP 1 raised objection on the maintainability of this complaint as the complainant has purchased the alleged vehicle for the commercial purpose who is not a consumer as defined under C.P.Act. and 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.
6. On merit the OP 1 it is admitted that, he is the authorized dealer of Sonalika International Tractor deals with sale of new Sonalika Tractor only. The complainant voluntarily expressed his desire to purchase  one new Sonalika DI 42 RX tractor from the OP1. It is further submitted that ,the Op No.1 never circulate any promotional advertisement  or offer for sale of tractor in any form of speaking , writing, print or viewing and also never assured to supply of Rotravetor free of cost on purchase of tractor .
7. The Op 1 further submitted that, the alleged vehicle is being financed by OP 3 / Bank  .As the complainant was unable to pay the entire cost of the tractor and trolley, he  availed a loan from the Op No.3 and entered into a lawful contract of Hypothecation and the OP No.3 sanctioned loan under Hypothecation Agreement. After receiving total amount of Rs.8,00,262/-   the OP No.1  delivered the tractor  and trolley to the complainant dt.31.05.2016 .  As per the provision  M.V.Act the OP No.1 insured the vehicle  with Cholamandalam MS General Insurance Co. Ltd  and handed over  relevant  documents  like Service Manual  books, warranty manual tools, etc  to the complainant. The OP 1 has voluntarily paid the fees for registration and other tax of the vehicle as commercial purpose to the RTA, Kalahandi at Bhawanipatna but till date the complainant has not produced the vehicle before the RTA, Kalahandi for inspection instead of several requests of the OP 1 .The OP 1 has complied his part but due to non cooperation of the complainant the vehicle could not be registered.
8. The Op 1 further submitted that ,the complainant has availed servicing of the vehicle on dt.04.02.2017 vide Job Card No.J/JNGH/1001644/02/2017/69 from the service center of the OP 1 and on dt.21.05.2018 vide Job Card No.J/ABCD/1003750/2018/141 from authorized dealer Rabi Tractors and Motors and the tractor   is under use of the complainant as on date and only due to non presentation of the vehicle  before the RTA, Kalahandi the vehicle could not be registered.
9. The Op 1 further contended that ,t he Complainant has received the tractor, trolley, service manual and tools supplied by the manufacturer on the date of its purchase and OP 1 has issued bill, sale certificate“Form-21”,”Form-20” along with other relevant documents and the same is submitted before the RTA, Kalahandi for registration of tractor &  trolley .It is further submitted that , prior to the registration, the vehicle was duly insured by the OP 1 and the OP 1 has already complied his part of performance but till date the complainant has not produced the vehicle before the RTA, Kalahandi for inspection instead of several request of the OP1 and there  is no unfair trade practice or deficiency in service on the part of the OP 1 and as such the complaint against the OP 1 is  liable to be  dismissed with cost.
10.    The OP 2  appeared through Learned Counsel  Shri S.K.Pattjoshi and  filed their  written version  denying the petition allegations on all its material particulars.  The OP 2 submitted that, the complaint is bad for misjoinder of OP 2.There is no  relief claimed  &  there is no cause of action  arose against the OP 2 to file this present complaint. No details of tractor purchased from the OP 1 and or manufactured by OP 2  has been mentioned hence,  it is denied that, any tractor manufactured by the OP 2  was purchased by the complainant. The tractor alleged to have been purchased in May 2016 and the compliant has been filed in February 2019 i.e. after the gap of 2 years 9 months and as such the complaint is time barred and is liable to be dismissed on this ground only . The tractor is admittedly being used for commercial purpose to gain profits as such the complainant is not a consumer  as per C.P.Act and this Hon’ble Commission has got no territorial jurisdiction to try the present complaint  against the OP 2 as the OP 2 neither works for gains within the jurisdiction of this Hon’ble Commission nor  the OP 1 is the agent of the OP 2. There is no privity of contract in between the OP 2 and the complainant. The Op 2 deals and appoints its dealers. The  tractors are sold to the dealers on payment basis and the OP 2 never deals or sells any tractor directly to the complainant. The complaint is false and frivolous. Hence prayed to dismiss the complaint with cost.
11.    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.
12.     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.
13.     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 first.
14. Section 2(7) of C.P.Act define “Consumer “ as follows:-“  "consumer" means any person who:—

1. 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
2. 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;

15.    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 that, he has purchased the alleged vehicle  for commercial purpose 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 2019 for which we are of the opinion that , this  complaint is not maintainable before Commission rather  liable to be dismissed.

16.  The complainant further contended that, he has purchased the subject vehicle paying the total cost price of  Rs.8,00,262/- and the OP 1 delivered the tractor and trolley to the complainant on 31.05.2016 but after lapse of almost 3 years also no registration paper or insurance paper or any other documents  or Rotravetor were  given to the complainant for which the complainant is not able to use his vehicle  and his vehicle is in unused standing position . It is found that , the  tractor alleged to have been purchased on 31.05.2016 and the compliant has been filed on in 13^th February 2019 i.e. after the gap of 2 years 9 months though, every complaint under C.P.Act is to be filed within two years of the cause of action as prescribed under section 69 of C.P.Act 2019 . Accordingly , we are of the opinion that ,this complaint is  time barred liable to be rejected .

17.  Based on the above said discussion this complaint is dismissed on contest against the Ops as barred by limitation & not maintainable under C.P. Act within the jurisdiction of this Commission.  However, no order as to cost.  The complainant may take shelter of the proper court of law. Complaint is disposed of accordingly.

Dictated and corrected by me.

           President

 I   agree.

     `Member

            Pronounced in the open Commission today on this   4^th day of October 2023 under the seal and signature of this Commission. Pending application if any is also stands disposed off.

        Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to them .The judgment be uploaded forth with on the website of the Commission for the perusal of the parties.  Ordered  accordingly.