The Complainant Sri. Kanchan Gupta has filed the present petition of complaint under section 12 of the Consumer Protection Act, 1986, wherein he has stated that he purchased one Mahindra KUV 100 vehicle from O.P No.1 with the financial support of O.P No.3.  The said vehicle has duly been registered, vide registration no. WB-73E/1318. The complainant purchased the said vehicle on 20.01.2017. After purchase of the said vehicle the complainant observed mileage problem as well as noise in the gear-box. So, the complainant brought into notice about the said problem of the vehicle to O.P. No.1. According to the complainant, there is manufacturing defect in the said vehicle. In spite of reporting the matter to O.P. No.1 they deliberately neglected to provide proper service, which has compelled the complainant to file the present case as per prayer mentioned in the petition of complaint.

In the instant case the O.P. No.2/Mahindra & Mahindra Ltd. is not contesting the case. As such the case has been taken as heard ex-parte against O.P. No. 2. However, the O.P. No. 1/ Sona Wheels Private Ltd. and O.P. No. 3/ Mahindra & Mahindra Financial Services Ltd. are contesting the case by filing separate written version contending, inter alia, that the case is not maintainable in its present form and prayer. The specific case of the O.P. No. 1 is that the complainant had some issues with the gear-box of the said vehicle and accordingly the O.P. No. 1 replaced the entire gear-box of the said vehicle. Thus the O.P. No1 solved the problem of the vehicle and made the vehicle roadworthy. So, there is neither any deficiency in service, nor any unfair trade practice on the part of the O.P. No. 1. Besides that, the vehicle in question is a commercial vehicle and is used for business purpose. As such the complainant cannot be treated as a consumer. So, the present case is not maintainable before the Consumer Forum. As such the complainant is not entitled to get any relief as prayed for and accordingly the case is liable to be dismissed with cost.              

Considering the rival pleadings of both the parties, the following  points  are being framed.   

                        POINTS FOR CONSIDERATION:-

1) Is the case maintainable in its present form and prayer ?

2) Is the complainant a consumer as defined in Consumer Protection Act ?

 3) Was there any deficiency in service on the part of the O.P .1 ?

4) Is the complainant entitled to get any relief, as prayed for ?

5) To what other relief or reliefs is the complainant entitled ?

DECISION WITH REASONS

              In the instant case neither the complainant, nor the opposite parties adduced any oral evidence. They also did not file any affidavit-in-chief. As per submission of both parties the petition of complaint along with the documents annexed therein supported by affidavit and the written version along the documents annexed therein supported by affidavit are treated as their respective evidence on affidavit. We have also carefully perused the B.N.A filed by both parties and the decision cited on behalf of them. We have also heard arguments of both sides in full and at length.

POINT NOS.  1 & 2 :-

              The Ld. Lawyer for the O.P. pointed out that the vehicle in question is a commercial vehicle and is used for commercial purpose. As such the complainant cannot be treated as a consumer and accordingly the present case is not maintainable. On the other hand, the Ld. Lawyer for the complainant argued that the complainant purchased the said the vehicle for self-employment for the purpose of earning his livelihood. As such the complainant is a consumer and accordingly the case is maintainable.

              From the Xerox copy of Sales Certificate(Annexure-I), we find that the complainant purchased one Mahindra KUV 100 on 20.01.2017 from the O.P. No.1. We also find from the Xerox copy of Certificate of Registration (Annexure-II) that the said vehicle has been registered being registration no. WB-73E/1318 dated 27.01.2017. We also find from the said certificate of registration that the class of vehicle has been mentioned as ‘Taxi’. So, there is no doubt that the complainant purchased the said vehicle for commercial purpose. As per definition of ‘’consumer’’ as defined in section 2(1)(d)(i) ‘’consumer’’ means any person who buys any goods for a consideration……………..but does not include a person who obtains such goods for re-sale or for any commercial purpose. However, as per Explanation to the said section “commercial purpose” does not include use by a person of goods bought and used by him/her and services availed by him/her exclusively for the purposes of earning his/her livelihood by means of self-employment. Thus, as per explanation to the said section, if the goods are purchased for commercial purpose by a person for self-employment for the purpose of earning his livelihood, then the said person can be treated as a ‘’consumer.’’

              In the instant case we have already found that the vehicle purchased by the complainant is used as a Taxi for commercial purpose. Unfortunately in the four corners of the petition of complaint there is no averment that the complainant purchased the said vehicle exclusively for the purpose of earning his livelihood by means of self-employment. The complainant also did not adduce any evidence to prove that the said vehicle was used for commercial purpose exclusively for the purposes of earning his livelihood by means of self-employment. It has been decided in catena of judgments like Sri Mohan Motors and another-Vs- R.P.Sharma-II (2006) C.P.J. 449, Mahindra & Mahindra Limited –Vs- Ranu Sharma & another – I(2012) CPJ 116, North East Karnataka Road Transport Corporation – Vs – Pooja Travels – IV(2009) CPJ 297(MP), Krishna Leather & Cosmetic Private Ltd. – Vs –Lumenis India Private Ltd. – (II) (2011) CPJ 133(NC) etc. that in the absence of any recital in the petition of complaint to the effect that the goods were being used for earning livelihood or in the absence of any evidence to the effect that the goods were purchased exclusively for earning livelihood by means of self-employment, the complainant cannot be treated as a consumer and hence the complaint does not fall under the definition of Consumer Protection Act.  Accordingly, following the said decisions we are also of the considered opinion that the present complainant cannot be treated as a consumer as per definition, as envisaged in section 2(1)(d)(i) of the Consumer Protection Act.  Therefore, the present case is not maintainable and is liable to be dismissed.

            These issues are thus decided against the complainant.       

ISSUE NOS. 3, 4 AND 5 :-

            We have already found that the present case is not maintainable before the Consumer Forum.  So, we do not find it necessary to go into the merit of the case.  However, the case being not maintainable, the complainant is not entitled to get any relief, as prayed for.

             These issues are also decided against the complainant.  

               As a result the case fails.

             Hence, it is

                                                            O R D E R E D:-

                that the Consumer Case No. 07 of 2018 be and the same is dismissed on contest against the O.P nos. 1 and 3 and ex parte against O.P no.2 without cost.

Let the original documents, if any, and the extra-sets filed by the parties, be returned on proper receipt.

Let a plain copy of this order be supplied to the parties free of cost on proper receipt and identification or be sent by speed post, in terms of Rule 5(10) of West Bengal Consumer Protection Rules, 1987.