Judgement on : Friday, 27th day of May, 2016.

HON’BLE MR. SAMARESH PRASAD CHOWDHURY,PRESIDING MEMBER

JUDGEMENT

                Challenge in this appeal U/s.15 of the Consumer Protection Act, 1986 ( hereinafter referred to as “the Act “ ) is to impeach the order No. 04 dated 15.01.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit – I ( for short, Ld. District Forum ) in Consumer Complaint No. 754 /2013. By its order,  the Ld. District Forum rejected the petition of complaint by holding that the Complainant is not a ‘consumer ‘ within the meaning of Section  2(1)(d) of the Act.

        The Appellant herein being Complainant initiated the complaint U/s.12 of the Act with prayer for certain reliefs, viz.- (a) to refund Excise Duty amounting to Rs.18,500/- ; (b) for payment of compensation, cost and interests etc.

        Having heard the Ld. Advocate for Appellant as well as the Respondents and on going through the materials on record it would reveal that on 31.10.2012 the Appellant purchased one Maruti Swift Dzire tour car being no. WB-04F/4262 from Machino Techno Sales Ltd. ( authorised Maruti Dealer ) being influenced with an advertisement published in a leading Newspaper wherein it was made clear that in case of purchase of the said air-conditioned meter taxi  the value of Excise Duty amounting to Rs.18,500/- would be deducted. As the said amount has not been paid the Complainant has lodged the complaint and having failed to obtain any order from the Ld. District Forum has come up before this Commission with the present appeal.

        Mr. Paritosh Hazra, Ld. Advocate appearing for the Appellant has submitted that the Appellant being an un-employed person after obtaining V.R.S. from Life Insurance Corporation of India, for the purpose of earning for his livelihood by means of self-employment decided to purchase the car with a commitment to get “refund of Excise Duty to taxi customers”. But the Respondents did not provide the Appellant with that benefit and as such the Appellant compelled to lodge the Complaint and, therefore, the Ld. District Forum should not pass the order impugned by observing that the Complainant cannot be termed as  ‘consumer’.

        Ld. Advocate appearing for the Respondents, on the other hand, has contended that  the Appellant has failed to produce any Driving License from which it can be presumed that the vehicle in question was purchased by the Appellant for the purpose of livelihood by means self-employment.

        I have considered the rival contentions of the parties. The materials on record indicate that the Appellant has purchased the Maruti Swift Dzire tour car being no. WB-04F/4262 from Machino Techno Sales Ltd. ( Maruti authorised dealer ) having its office at 8A, Alipore Road, Kolkata – 700 027. In the advertisement of Maruti Suzuki India Ltd. there was a stipulation that the excise value of Rs.18,500/- will be exempted. As the same has not been done, Appellant has made several representations and reminders. In this regard, the letter dated 30.01.2013 given by the Appellant to Respondent no. 3 ( Deputy Manager – S & D, Maruti Suzuki India Ltd.) appears to be significant. In the said letter Appellant himself has made it clear that he had bought the car in question for commercial purpose. Admittedly, the Appellant does not possess any Driving Licence. Therefore, when the Appellant himself does not hold any licence to drive the  vehicle and further he himself admitted that the taxi in question was purchased by him for commercial purpose, certainly the Appellant does not fall under the category of  ‘consumer’ within the purview of Section 2(1)(d) of the Act.

        Needless to say, in order the attract the provisions of the Act one has to be a ‘consumer’ within the meaning of Section 2(1)(d) of the Act which runs as follows :-

        “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 pro missed 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 series for  considerate n paid or promised, or partly paid and partly promised, or under any system of deferred payment, 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  purposes;

    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 purposes of earning his livelihood by means of self-employment ;”

        The Appellant has purchased the taxi to ply it by appointing a driver to earn profit and as such he does not have any Driving Licence. In other words, the Appellant had invested the money to earn profit which cannot be considered as self-employment. Therefore, it can be safely said that the Appellant has purchased the taxi for commercial purpose and, therefore he does  not come within the category of ‘consumer’ as embodied in the Section as noted above :

        In that perspective, I do not find any reason to differ the view of the Ld. District Forum keeping in mind the principles of law laid down by the National Consumer Commission in connection with M/s. Harsolia Motors – Vs. – M/s. National Insurance Co. Ltd. & Ors. reported in 2005 (1) CPR 1.Therefore, the Appellant does not come under the coverage of the Act.

        Consequently, the appeal is dismissed on contest. Considering the facts and circumstances of the case, however, I do not make any order as to costs.

        The order no. 04 dated 15.01.2014  passed by the Ld. District Forum in CC No. 754/2013 is hereby affirmed.