O R D E R<br /> Sri. Santhosh Kesavanath P., President.<br /> Case of the petitioners is as follows:<br /> Petitioner purchased a Tata Spacio Jeep manufactured by the first opposite party from the Kottayam branch of the second opposite party, who is, the dealer of the first opposite party. The petitioner purchased the said vehicle for plying it as a taxi. According to the petitioner the income generated from the plying the taxi is the source of his livelihood. At the relevent time of purchasing the vehicle, second opposite party<br /> was functioning under the name and style as Benz Motors. The petitioner got delivery of the vehicle on 21..12..2003 from the 3rd opposite party, it is, the branch of the 3rd <br /> -2-<br /> opposite party. The petitioner duly forwarded the relevant document necessary for getting the excise duty refund available for taxi vehicle to the 3rd opposite party as directed by the second opposite party. The 3rd opposite party promised by the second opposite party that the petitioner would get the refund amount of Rs. 22186/- within months. The petitioner waited for almost 10 months. Since he did not receive refund of the amount. He issued a legal notice dtd: 25..10..2004 to the 3rd opposite party. 3rd opposite party sent a reply stating that they have forwarded all the relevant documents within time. Believing the assurance given by the 3rd opposite party and hoping that he will refund with interest the petitioner waited for morethan a year without any result. The petitioner issued a lawyers notice on 1..4..2006 to the first and second opposite parties demanding an amount of Rs. 50,000/-, which comprised of the refund, along with interest and compensation for the negligence on part of the opposite parties. The second<br /> opposite party issued a reply stating that they have duly forward the documents to the first opposite party. While the first opposite party issued a reply stating that they look into the matter and by refused to meet the demands of the petitioner. According to the petitioner non receipt of the excise duty refund is due to negligence of the opposite party, which is a deficiency in service on their part for this they are liable to compensate the petitioner. Petitioner prays for the direction to the opposite parties to pay an amount of Rs. 22186/- with interest at the rate of 18% per annum from 25..10..2004 till realisation<br /> he also prayed for a compensation in the tune of Rs. 15,000/- and he claimed Rs. 5,000/- as cost of the proceedings.<br /> First opposite party entered appearance and filed version. Opposite party 2 and 3 has not entered appearance or filed any version. So, the opposite party 2 and 3 are set ex-<br /> -3-<br /> parte. The first opposite party contented that the petition is not maintainable before the Forum because it is barred by limitation. The first opposite party contented that petitioner is not a consumer as defined under section 2(1) (d) of the Act. So the petition is liable to be dismissed. They further contented that the first opposite party forwarded the relevant documents, on the receipt of the same, to the second and third opposite party and forwarded it to the Central Excise Department for the purpose of claiming refund of excise duty. However, the said claim made on behalf of the petitioner was rejected by the Central Excise Department on the ground that the claim has been made beyond time. According to them as per the provisions of the central excise act a claim for refund in excise duty has to be made by the manufacturer within 90 days of despatch of the vehicle from the factory gate of the manufacturer. The claim made by the opposite party to condone the delay in preferring the application had been rejected by the department. As Central Excise Department is to take decision on the claim the first opposite party has no control over the stand taken by the department. . The first opposite party contented that there is no negligence or deficiency in service on their part and they are in no way liable to compensate the petitioner. So, the first opposite party prayed for a dismissal of the petition with their cost.<br /> Points for determination are:<br /> i) Whether there is deficiency in service on the part of the opposite party?<br /> ii) Reliefs and costs.<br /> Evidence in this case consists of affidavit filed by both parties Ext. A1 to Ext. A7 documents on the side of the petitioner.<br /> <br /> -4-<br /> Point No. 1<br /> Even though no seperate point with regard to the maintainability raised by both parties. Since the opposite party has a contention that petition is not maintainable that question has to be decided first. According to the first opposite party the petitioner is not a consumer as defined under section 2(1)(d) of the Consumer Protection Act, 1986. It is admitted case of the petitioner that he had purchased the vehicle to operate it as a taxi. The first opposite party in its version in para No. 5 catagorically stated that the petitioner purchased the vehicle to use it as a taxi by engaged paid drivers. Except denying the statement of the opposite party in the affidavit filed by the petitioner and stating that he was plying by himself, the petitioner has not produced any material to substantiate this plea. The basic document to prove that the petitioner is competent to drive the vehicle was the licence, if any possessed by him, In the absence of any material to prove the same we cannot come to a conclusion that the petitioner is operating the vehicle by himself. As per the explanation substituted by act 62 of 2002 with effect from 15..3..2003 to Section 2 (d) of the Consumer Protection Act. It is explained “Commercial purpose” does not include use by a person of goods. Bought and used by him and service availed by him exclusively by earning his liveli hood by means of self<br /> employment. So in view of the amendment the petitioner cannot be treated as a consumer. The ambiguity in the meaning of the words “for the purpose of earning his livelihood is explained and clarified by the other two sets of words”. The explanation however clarifies that in certain situation purchaser of goods for commercial purpose “would not take the purchaser out of the definition of the expression consumer” if the commercial use is by the purchaser himself for the purpose of earning his livelihood by <br /> -5-<br /> means of self employment such purchaser is a consumer. But if the purchaser plys the car as a taxi by himself he can be treated as a consumer. But if the plys the car by appointing an another person he would not be a consumer. Reliance is placed on decision of Hon'ble Supreme Court reported in 1995 (2) CPJ 1 Supreme Court. So, we are of the opinion that the petitioner failed to prove that he is plying the car by himself. So the petitioner in the instant case is not a consumer. Since the petition is not maintainable there is no need to look in to the other question with regard to deficiency in service. So point No. 1 is found accordingly.<br /> Point No. 2<br /> In view of finding in point No. 1, petition is to be dismissed as not maintainable before this Forum. Considering the fact and circumstances of the case. No cost is ordered.<br /> Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 30th day of August, 2008.