The instant case has been initiated by the complainant U/S – 35 of Consumer Protection Act,2019 against the Opposite Parties claiming an amount of Rs.20,00,000/- for loss of suspension of journey, loss of conveyance, loss of good will and loss of mental agony.

The fact of the case, in brief, is that the Complainant after obtaining permit for state carriage from Balurghat to Kolkata he decided to place two luxury coach. Representative of Eicher Company convinced to purchase coach of Eicher make. After purchasing the vehicle Eicher 20.15 R LPO BSIVCHASSI on 30.11.2019 from soon, they send the vehicle at Banglore at S.N.Kannapa Automobile for making Hi- tech Coach and after preparing the coach the vehicle started to ply in the route from January, 2020 from Balurghat to Calcutta and back. For such purchase and ownership of vehicle, the Complainant had to take loan of Rs.39,00,000/- from Canara Bank, Balurghat Branch and had to pay an installment of Rs.73,000/- per month as against such loan along with interest. Such 60 installments to be paid against the loan. Apart from that road tax, Insurance, pollution clearance and other charges to be also paid regularly. The said vehicle has been registered under the registering authority as WB – 61 A/ 9991. 

   After registration started plying of vehicle repeated disturbances and mechanical problems started and the vehicle standard in repeated occasion. For this, the Complainant had to face trouble on way from Balurghat to Calcutta and back. Even on mid way he had to arrange vehicle for sending the passengers in destination. The Complainant had to put the vehicle in authorized work shop of company at Malda, Krishnanagar, Barasat, Dankuni and Kolkata in different occasions. In this connection the Job card of BP-EICHER of different work shop is the proof of mechanical failure of the vehicle. Due to such fault of the vehicle, the Complainant had to face a lot. Thus, huge loss has been caused for suspending journey for more that thirty four days. As a result, the Complainant had to pay to the passengers for sending them in destination for cost of extra fuel for going to authorized work shop and return, convince for contacting garage with staff for bearing the cost of taxes, insurance, salary of staff and other charges etc. All this incident happened during the warranty period. In such situation, the Complainant sent a notice to the Opposite Parties on 20.07.2020 for Redressal through lawyer but in vain. Having no alternative, the Complainant filed the instant case for relief as prayed in the plaint.

             Notices were duly served upon the opposite Parties and after receiving the notices, the Opposite Parties No.1&2 appeared before this commission by filing vokalatnama and filed their written version.

             By filing joint written version, the Opposite Parties No.1&2 have stated that the Complainant is not a consumer because he purchased the said vehicle for commercial purpose and not foe earning livelihood, so the present complaint is liable to be dismissed in limini. The Complainant has made false and baseless allegation to harm his. Reputation. The Opposite Parties have further submitted that when the vehicle was reported at Sarojini and on assessment by the expert, it was found that the repeated failure was happening due to harness splicing being done in an unauthorized manner by the Complainant/ bodybuilder of the vehicle. But as a gesture of goodwill, the repair of front chassis harness, EMS, IECU was done and the cost was absorbed by the Opposite Parties and additionally advised the Complainant to replace the COWL harness at his own cost. But utter shock, the Complainant refused the same and the vehicle was released with temporary repairs. The mechanical failure of the vehicle is due to the negligence of the Complainant. The Opposite Parties have not received any legal notice sent by the Complainant.The Complainant is presenting false story to misguide the Honble Commission and to extract wrongful gains. There is no cause of action to file the instant case against the Opposite Parties. The averments/prayers are bad, frivolous, misconceived and made without any merit so, the complaint petition is liable to be dismissed with cost.    

           To prove his case, the complainant has filed photo copies of

(i)  Tax invoice

(ii)  Advocate legal notice dated 20.07.2020

          On the other hand, the Opposite Parties No.1&2 have filed the following  documents in support of their defense

 (i)     Photo copy of tickets of New Dolphin Travels

(ii)    Photo copy of Advertisement of New Dolphin Travels.

(Iii)    Photo copy of Bus with number plate WB 61 A 9990  

 (iv)   RC status of Bus being no. WB 61 A 9990

             In view of the above mentioned facts, the following points are cropped up for consideration - 

      POINTS FOR CONSIDERATION      

     1.  Whether the Complainant is a consumer to the Opposite Parties?

    2.  Whether there is any deficiency in service on the part of the Opposite Parties ?            

   3.  Whether the Complainant is entitled to get any relief/reliefs as prayed for?

                                        DECISION  WITH  REASONS

           We have heard argument by Ld. Advocate for the both sides at length. We have also gone through the evidence on affidavit and written argument filed by both the parties. We also perused the documents produced by both the parties before this Commission.           

              At the time of argument Ld advocate for the Complainant narrated the fact of the case as mentioned in the plaint. He further submitted Complainant is a consumer as he purchased the vehicle foe the purpose of his lively hood . There is manufacturing defect in the purchased vehicle and not electrical problem. The Opposite Parties have not mentioned the defect in the body of the vehicle made by the Complainant. There is deficiency in service on the part of the Opposite Parties so, the Complainant is entitled to get relief as prayed for.  

           On the other hand, Ld Advocate for the Opposite Parties No.1&2 argued that the Complainant has purchased three vehicles ( Luxury Buses ) for Commercial purpose and out of which one of the vehicle is the subject matter of this case so, the instant case is not maintainable in its present form and in law. The Complainant has failed to produce any expert report from which it can be seen that there was manufacturing or mechanical defect in the said vehicle. Apart from it, the Complainant has made the body of the vehicle in the garage on his own choice. There is no deficiency in service on the part of the Opposite Parties so the instant case is liable to be dismissed with cost.                   

      Now, let us discuss all the points one by one. 

Point No. 1  

           On perusal of cross examination of the parties, it appears from the reply of the  Complainant in answer no.2 that he has two buses before the purchase of the alleged bus. Thus, there are three nos. of running buses at present under the possession of the Complainant along with six staffs and the said buses are running between Balurgahat and Kolkata. In his written argument, the Opposite Parties have stated that the Complainant has three commercial buses having nos. WB61 A / 9990, WB61 A / 4690 and WB61 B / 5190 and running from Balurghat to Kolkat which has not been challenged by the Complainant. We also opine that the this vehicle of the Complainant is a luxury bus along with two other luxury buses  running between Balurghat and Kolkata which are used for commercial purposes for gaining profit. So, it cannot be said that the Complainant run the Bus for livelihood. Apart from it, the Complainant has himself stated in the first paragraph of the complaint petition that he has experience in transport line for long since he decided to start transport business.

           On perusal of observations of Apex Courts reported in 1995(3)SCC 583 in Laxmi Engineering Works Vs P.S.G. Industrial Institute, 1992 CPJ (1) 95 NC in Super Engineering Corporation Vs Sanjay Vinayak Pant & others and 2020 (2) SCC 265 in Lilavati Kirtilal Mehta Medical Trust Vs Unique Shanti Developers, it appears that it has to be seen that if the dominant intention or purpose for the transaction to facilitate some kind of profit generation for the purchaser and /or their beneficiary, then benefit of the consumer protection act will not be given.  

       In view of the above discussions, we came to the conclusion that the Complainant is not a consumer as per section 2 (7) of the Consumer Protection Act, 2019.

             Accordingly, this point is decided against the Complainant.  

Point Nos. 2 & 3 

            Both these points are taken up together for discussion for the sake of convenience and brevity.  

             It appears from the  tax invoice submitted by the Complainant that one bus has been purchased by the Complainant on 06.12.2019 at a consideration of Rs.19,13,861/- and the said vehicle has been registered as  WB-61 A / 9991  but no R.C Book or other supporting documents relating to that Bus in the name of the Complainant has been filed.

            Further, it has been stated by the Complainant that during plying of vehicle repeated disturbances and mechanical problem started and for this the Complainant had to put the vehicle in authorized work shop of the company at Malda, Krishnanagar, Barasat, Dankuni and Kolkata in different occasion. He further stated that in this connection Job Card of BP- EICHER of different work shop is the proof of mechanical failure of the vehicle. But neither the Job Card nor the receipt of any repairing cost has been produced by the Complainant before this Commission. In such circumstances, the contention of the Complainant is not believable. So, we are in considered view that the Complainant is not entitled to get any relief.

                In view of the above mentioned discussions and from the four corners of the case record, It has been established that the Complainant is not a consumer in view of any of the section under Consumer Protection Act, 2019 and we also do not find any negligence or deficiency in service on the part of the Opposite Party No.1, 2.  So, we opine that the instant case is liable to be dismissed.

 Hence, it is

                                                           O R D E R E D

            That the Consumer Case No. 49 of 2020 be and the same is dismissed on contest but without cost against the Opposite Party Nos.1 & 2.

              Let a plain copy of this order be supplied to the parties free of cost.