By :  SMT. SYEDA SHAHNUR ALI, MEMBER   

The case of the complainant in brief is that he entered into an agreement with the OP No.1 for purchasing a Bollero through its financial assistance. The complainant purchased the said Car being Registration No. WB 31/5215 registered on 07./02.12 by paying down payment as per demand of the OP No.1. But the OP no.1 did not issue any purchase bill in spite of several demands. After taking possession the complainant used said car for his business purpose. The complainant paid EMI regularly but there was huge mistake or wrong entry in the statement of accounts issued by the OP no1 and  also there was shown less amount in the receipts supplied by the authorized agent by way of cheating and forgery.  The complainant repeatedly mentioned all these irregularities to the office of the OP no.1  as well as its authorized agent but they did not pay any heed and avoided the malpractice by various pretest. That due to lack of adequate knowledge the OPs realized much more amount by way of EMI from the complainant till 14.03.16. On 14.03.16 the OP no.1 sent a notice to the complainant stating that the vehicle will be taken into possession by them within seven days for dues of EMI. The complainant became ill from 25.03.16 to 25.08.16 and onwards and could not meet  the office of the  OP no.1. Again on 23.03.16 OP no.1 issued a notice to the complainant and stated that an amount of RS 47.100/- is lying due and was asked to clear within 15 days from the date of receipt of the notice. Thereafter the complainant had been to the office of the OP no.1 and wanted to pay Rs. 47,100/- but the OP no1 and his agent denied to accept the money and refused to return the vehicle. On 10.09.16 the complainant requested the OPs to return the vehicle and tendered Rs. 47,100/- but OP paid no heed. On 01.10.16 the complainant gave a legal notice to the OP no.1 requesting to accept the due amount of Rs. 47,100/- and return the vehicle to him but as usual the OPs kept mum.

Presently the complainant could not use the said vehicle for more than seven months for his commercial purpose and has sustained severe loss therefor.  Under such circumstances under tremendous mental pressure the complainant has filed this complaint praying for the reliefs as mentioned therein on the ground of gross negligence and/or deficiency on the part of the OPs.  The OPs have contested the case by filing joint written version and denied all the material allegations made against them. The specific case of these OPs is  that  the complainant applied for a commercial loan finance of a Bolero Car being registration No. WB – 31/5215 under agreement No. 1881858 for a finance of Rs. 4,90,000/- and the agreement value was Rs. 6,37,000/- to be paid by 47 EMIs from 05.01.12. to 0511.15. The loan agreement was executed between the parties on 05.01.12. The complainant paid instalment amount of Rs. 5,89.900/-  and thereafter defaulted in payment and therefor, as per terms of the agreement the OPs took possession of the vehicle against a seizure list supplied to the complainant. Before taking such possession the OP 1 served several notices upon the complainant and his guarantor for payment of the EMI, but the complainant remained silent. The OPs further contends that they issued notice on 23.03.16 to sell the said vehicle  and appropriate the sale proceeds to recover the due amount . In case of any shortfall the Ops reserves the right to recover the same from the complainant as per law.  It is the case of the OPs that the complainant has intentionally filed this case to harass the OPs which deserves to be dismissed with cost.

As seen from the record and the petition of complaint it is found that the complainant took a loan  from the OP no.1 for purchasing a Bollero Car being Registration No. WB 31/5215 registered on 07.02.12 and he used the vehicle for his business purpose. But the authorized agent of the OP no.1 had taken huge amount as instalments from the complainant and made mistake/wrong entry in the statement of accounts in the name of the complainant which was issued by the OP no.1  The complainant has also complained that he had received less cash receipt though he paid regular instalments to the OP no.1 and made him a defaulter. The complainant has filed some documents and stated that he had paid excess amount of Rs. 2,23,300/- but he has not categorically shown how and in what manner  he paid the excess amount of Rs. 2,23,300/-. The OP no1 had sold the said vehicle on auction and informed the complainant regarding the auction in various dates.  From the written version  it appears that the OP no1 had issued notice on 23.03.16 to the complainant for repossession of the said vehicle  and also to sell said vehicle but nowhere it is found that the complainant had received such a notice from the OP no.1 and or that the complainant had knowledge  of such action.

Be that as it may the moot question for determination in the case  is -

1) Whether the  complainant is a consumer,

2) Whether there is any deficiency of  service on the part of the OP no.1 and

 3) Whether the complainant is entitled to get the reliefs as prayed for.

Decision with Reasons.

            All the points are taken up together for consideration for their interrelatedness.

            It is found from  Section 2(d)(ii) of the Consumer Protection Act “ consumer means -  any person who  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 beneficiary  of such services 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 payments, when such services are availed of with the approval  of the first mentioned person buys does not include a person who avails of such services for any commercial purpose. Commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusive for the purposes or earning his livelihood, by means of self-employment.

            In  this present case we find from a plain reading of the petition of complaint that  he has not availed the said vehicle for earning his livelihood by means of self-employment There is no whisper  of such statement in the  complaint. AS such the word of default of payment, auction sale etc between the complainant and the OPs  is totally money suit in nature  and this Forum has no jurisdiction  to give redressal  of the grievance of the complainant. As such the instant complaint petition is dismissed being not maintainable before this Forum

Hence, it is

    O R D E R E D

            That the CC No. 331/16 be and the same is dismissed on contest but without any order of costs.

            Let copy of this judgment be supplied to all the parties free of cost.