ORDER ON ADMISSION

It is the case of the complainant that, the for his lively hood and for his self earning to lead life started a proprietor ship firm in the name and style of Nagathan E Motors at BVVS Complex, Bagalkot. The complainant further submit that he has taken the building on rent for the said business Shop No. 50 and 51 and submit that made contact to Opponents. O.P. No.1 is director and co founder of people-E cart sale Pvt Ltd wheels LLP. And O.P.2 is manufacturers of Jangid Motors and Sale Head, both O.Ps. are running the firm in the name and style of People E Cart Sale Pvt having office at Jayanagar Bangalore. O.P.1 is appointed as the Distributors of Karnataka of Jangid Riksha. Complainant further submits that on reference of the friends made agreement of contract with Opponents on 29/02/2016 and O.Ps. will give good service and supply the E motors (Riksha). The complainant and O.Ps. entered in the agreement and O.P. has appointed the complainant as dealers of the E Motors (0021, KA,Bagalkot) complainant believing the words of the opponent entered in the agreement to sale the E Motors of the O.P. with good quality and prompt service and act as good businessman. Further opponent appointed the complainant as dealers of Bagalkot District, on the advice of the O.P. the complainant has deposited Rs.1.5 lacks as deposited amount. As per the term of the agreement complainant given order of supply of 12 vehicle 10 passenger vehicle and 2 goods vehicle and consideration amount of Rs.11,98,375/- is paid by complainant to the O.P. as advance cash on 04^th March 2016 and O.P. failed to supply the goods as per order under the invoice dated 5^th April 2016 etc.,

2. The Complainant has filed this complaint against the Opposite Party (herein after referred in short as OP) U/sec.12 of Consumer protection Act 1986, seeking direction to award the compensation against the O.Ps. for adopting unfair trade practice and for deficiency of service and direct the O.Ps. to make joint payment of Rs.18,64,575=00 with interest of 18 from the date of filling of this complaint its realization and any other relief as the Forum deems fit under the circumstances of the case. Hence, complainant has filed the present Complaint.       

          3. On the basis of above said facts, preliminary point for our consideration arose are;

1.  Whether present complainant prove that he is a “Consumer” as defined under the Consumer protection Act 1986?
2. What order?

Answer Point No.1 is- Negative

Answer Point No.2 is- As per final order.

R E A S O N S

4. Point No.1 :-

          On perusal of the pleadings of the complainant, where in the complainant himself has started that he has taken the building on rent for the said business O.P. No.1 is director and co founder of people-E cart sale Pvt Ltd wheels LLP. And O.P.2 is manufacturers of Jangid Motors and Sale Head, both O.Ps. are running the firm in the name and style of People E Cart Sale Pvt having office at Jayanagar Bangalore. O.P.1 is appointed as the Distributors of Karnataka of Jangid Riksha. Complainant further submits that on reference of the friends made agreement of contract with Opponents on 29/02/2016 and O.Ps. will give good service and supply the E motors (Riksha). The complainant and O.Ps. entered in the agreement and O.P. has appointed the complainant as dealers of the E Motors (0021, KA,Bagalkot) complainant believing the words of the opponent entered in the agreement to sale the E Motors of the O.P. with good quality and prompt service and act as good businessman. Further opponent appointed the complainant as dealers of Bagalkot District, on the advice of the O.P. the complainant has deposited Rs.1.5 lacks as deposited amount. As per the term of the agreement complainant given order of supply of 12 vehicle 10 passenger vehicle and 2 goods vehicle and consideration amount of Rs.11,98,375/- is paid by complainant to the O.P. as advance cash on 04^th March 2016 and O.P. failed to supply the goods as per order under the invoice dated 5^th April 2016 and complainant ordered to supply the following goods from the O.P. as under;

          a) PO1, Jangid DLX GREEN; Black 2 piece

          b) PO3 Jangid DLX Red –Wight Black 2 piece

          c) PO4 Jangid DLX BLUE-White 2 piece

          d) PO7 Jangid LDR-500 Red-Black 1 piece

          e) PO9 Jangid LDR 1000 Red-Black 1 piece

          f) P10 Dala Open body 2 piece

          h) P14 Jangid DLX Yellow-White 2 piece

          j) PO2 Jangid DLX Red Black 2 pieces         

          The Opponent sent Invoice of Rs.10,04,100=00 on 5^th April 2016, the said good supplied by the opponents are defected goods and damages goods. The said defected goods are rectified by Opponents staffs but the said goods are not satisfactorily in the market.

          5. It is further observed that admittedly. After delivery of the said defected goods from opponent to the complainant it was found that opponent have not taken any approvals to sale in Karnataka and RTO approval is not obtained due to said defected goods supplied and without permission to sale the opponent vehicles even vehicles are not sold due to non obtain the permission of state of Karnataka. The opponent have made unfair trading and obtain such practice which cause hues loss to the complainant and said goods remain kept in complainant office up to 26/10/2016 for want of permission to sale in Karnataka due to unfair trade practice and negligent act of the opponent. The complainant is put to great loss and mental agony and financial loss. Now the opponent without any intimation to the complainant shifted the address of the opponent company and complaint. The opponent had not ready to refund the deposited amount and taken excess amount of the value of the goods supplied and complainant further submits that to open the dealership of the opponent taken the space on rent and invested hues amount in Showroom and appointed the Manager to look after the complainant business and salary of Rs.20,000/- is paid to Manager.

          6. Further it is admitted fact of the complainant is para 11 in his complaint. The complainant obtained trade certificate under rule 35 (1) from Registering Authority of Region State Bagalkot, value added Tax registration Certificate Form Vat 7 dated 09/03/2016 It reveals that the complainant had also suffered the business loss as he could not keep up his commitments of supply to its customers including the above said firm is Auto sales Center business. Opponents Company is manufacturing vehicle and sale head of Jangid Motors and running firm is the name and style of People E Cart sale Pvt. Ltd., having office at Bangalore. Sri. Shardul Sing was the appointed as the Karnataka Distributor of Jangid E Riksha and complainant as dealer of said Motors of Bagalkot district. As per agreement O.P. and complainant O.P. supply 10 vehicles passengers vehicle and 2 goods vehicle so by this admitted facts it is clearly established that complainant is seeking service to the dealership units for business purpose only.

          7. For the sake of deciding the issue as to whether the complainant is a “consumer” as defined under the Consumer Protection Act, 1986, reproducing the Section 2 (1) (d) of the Consumer Protection Act, as follows;

     “(d) ‘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 services 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 services other than the person who hires or avails of the service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such services for any commercial purpose.

     [Explanation: For the purposes of this clause, “Commercial Purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employments;]

          On going through the pleadings and the above definition of Consumer, we are of the opinion that, the complainant represented by proprietor, which is a Company registered under the Indian Company’s Act, 1956 and it is not established for earning livelihood but with a intention to earn profit from business. So on the basis of the said facts the complainant is not come under the purview of term “Consumer” as defined under the Consumer Protection Act.

          8. On perusal of the pleadings of the complaint and also his evidence, it is nowhere mentioned by him that, “ he carried out the above business by way of self-employment for earning his livelihood”. In the absence of such plea, the service to be provided by Opposite Parties were purely for his business or commercial purposes, under such circumstances complaint against Opposite Parties is not maintainable in the absence of such required plea in his averments.

          In this regard a citation reported in I (2015) CPJ 450 (NC) between Sanjay Chandra Agarwal V/s. India Bulls Securities Ltd. Is referred wherein the Hon’ble National Commission has held as under;

          “Consumer Protection Act, 1986-Sections 2(1)(d), 21(a) (ii)-Consumer-Share transaction-Commercial purpose-Transaction not carried out by way of self-employment for earning livelihood-Complainant not consumer”

          In another citation reported in 1(2016) CPJ 113 (NC), between APS International Pvt. Ltd., V/s. Emaar MGF Land Limited, wherein the Hon’ble National Commission has held as under;

          “Consumer Protection Act, 1986 – Sections 2 (1) (d), 2 (1) (g), 21 (a) (i) – Consumer – Booking of shops/commercial area – Registration amount paid – Non-delivery of possession – Deficiency in service alleged – Refund alongwith compensation claimed – Commercial purpose – Complaint has been filed on behalf of M/s. APS International Private Limited and Anr. – Complainant do not qualify to be consumer – Case is not maintainable – Liberty ranted to seek remedy before any other appropriate Forum or Civil Court as per law – Directions issued”.

          In the another citation reported in IV (2016) CPJ 67 (NC), between Sri Sai Industries & Ors. V/s. Mahindra and Mahindra Ltd., wherein the Hon’ble National Commission has held as under;

          “Consumer Protection Act, 1986-Section 2(1) (d) (ii), 21(b)- Consumer Partnership firm-Purchase of vehicle-Commercial purpose-Complainant had purchased one mini-truck, open body, in order to promote its business-Title of petition itself mentions ‘Sri Sai Industries’ through its partner ‘PA’-Question of a partner earning his livelihood by means of self-employment does not arise-This is a commercial transaction-Complainant not consumer.

          9. Herein also the title of the complainant mentioned as Proprietor Nagathan E Motors registered under Provision of CST Act, 1956, represented by its Proprietor that means the principles enunciated in the above citations is similar to that of the present case on hand and the Hon’ble National Commission has taken a view that they are doing business for the sake of earning profit and not for earning his livelihood by means of self-employment and therefore he is not a “Consumer” as defined under the Consumer Protection Act.

          So considering the same, we are also of the view that looking to the present facts of the case coupled with the admitted fact by the complainant, the complainant is not a consumer within the definition of the consumer Protection Act., Therefore, we answered the Point No.1 in the Negative.

10. Point No.2:

        As discussed above in detail, the Point No.1 is answered in Negative. So the question of answering the Point No.2 and granting his reliefs claimed does not arise for our consideration. Therefore, we proceed to pass the following order;

O R D E R

          The complaint filed by the complainant U/s.12 of C.P. Act against Opposite parties is dismissed at the stage of admission itself, holding that, the present complaint the complainant is not a consumer within the definition of the Consumer Protection Act 1986.

          However, it is made it clear that, without prejudice to the observation made above the complainant is at liberty to file a complaint civil Court within the prescribed limit given.

          Intimate the complainant accordingly.