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Ajmer Singh Saini v/s Swami Auto Sales

    Appeal No. 50 of 2006

    Decided On, 04 May 2006

    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh

    By, MEMBER

    For the Appellant: None. For the Respondents: Pankaj Chandgothia, Advocate.

Judgment Text

K.C. Gupta, President:

1. This is an appeal filed by the complainant against order dated 27.10.2005 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter to be referred as District Forum) vide which his complaint was dismissed being meritless.

2. The case of the appellant (complainant) is that the appellant purchased a Mahindra 3 Wheeler cowl and chassis from M/s. Swami Auto Sales (respondent No. 1) vide sales invoice No. 119 dated 26.2.2003 (Annexure C-1) to earn his livelihood for Rs. 1,51,000 out of which Rs. 1,25,500 were financed by M/s. M&M Financial Services Limited (respondent No. 2). The loan amount was to be paid in instalments. After getting the delivery of the chassis, the complainant got body fabricated at a price of Rs. 15,500 on 17.3.2003 and started plying the three wheeler for transporting vegetables and selling the same at different places. However the vehicle from the very beginning was not giving proper service and broke down for the first time near Parwanoo and he had to shell out Rs. 1200 to get it repaired.

3. On 2.4.2003, the complainant visited the workshop of respondent No. 1 and brought to its notice the fact of break down and heating of the rear brakes and locking of the rear wheels but they did not attend to the vehicle. The vehicle again started giving trouble on 17.6.2003. The diesel fuel pump was not properly working and the back gear could not be applied and the vehicle got stranded at Baddi. Again he had to spend Rs. 880 and he went to the workshop of respondent No. 1 on 4.7.2003 and complained about the non-functioning of the vehicle but they did not pay any heed to his request and instead sent him away after routine service.

4. Further averred that he had been requesting the respondent No. 1 to replace the fuel pump and the gear box right from the moment the same started giving trouble but to no effect. Inspite of giving legal notice, they did not change the same and they further stated that since the warranty period of six months had expired, he had to pay for the repairs and as such, he spent Rs. 7,886 on the repair of the vehicle. They did not replace the parts free of cost. With these allegations of alleged deficiency, the complaint was filed and he prayed for grant of Rs. 1,00,000 as compensation for the loss suffered by him as he was not allowed to use his vehicle and prayed for reimbursement to the tune of Rs. 28,500 and Rs. 32,039 which respondent No. 2 had received as margin money and also claimed Rs. 80,000 for harassment and mental agony. The respondents contested the complaint and filed separate written statements. The respondent No. 1 took one preliminary objection; since the vehicle in question was purchased for commercial purpose. So, the appellant was not a consumer and the complaint was not maintainable. It further stated that the appellant had purchased the vehicle under hire purchase agreement and as such he was mere bailee and not owner of the vehicle and as such does not come under the definition of the conusmer under the Consumer Protection Act, 1986. It denied the other allegations and stated that there was routine jobs regarding the vehicle which it has satisfactory performed. Respondent No. 2 also denied the allegations of the appellant and took almost similar pleas.

5. None has turned up on behalf of the appellant for the last two hearings. In such circumstances, we were compelled to hear the learned Counsel for the respondent and carefully gone through the file.

6. There is no denying the fact that vehicle in question was purchased under hire purchase agreement. This is also proved from the affidavit of Mr. Anurag Sharma, Regional Law Officer on behalf of respondent No. 2 as well as the affidavit filed on behalf of respondent No. 1. It has been observed by the State Commission in the case of Padma Wati v. Tata Finance Limited and Another, II (2005) CPJ 31, that where the vehicle is purchased under the hire purchase agreement then the purchaser / complainant is a mere bailee and as such does not come under the definition of conumser as defined under the Consumer protection Act, 1986. To the same effect, is the authority of the Hon’ble National Commission delivered in Revision Petition No. 367 of 1998 titled, Tata Finance Limited v. Marjan Hosan and Others. There is other aspect of the matter. There is a delay of 83 days in filing the appeal which has not been reasonably explained. It is stated in para No. 2 of the application for condonation of delay that he received the copy of the impugned order on 9/10.11.2005 and handed over the same to his Counsel Mr. Ajay Sood, Advocate to file the appeal but he did not prepare the memorandum of appeal and returned the brief on 4.2.2006 showing his helplessness and then he had to engage another Counsel and as such there was a delay. No affidavit has been filed of Mr. Ajay Sood or his clerk to prove prima facie that the brief was handed over to him and due to unavoidable circumstances, he could not prepare the memorandum of appeal. The mere affidavit on this sco

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re of the appellant cannot be accepted. The present appeal has been filed on 28.2.2006. Even if Mr. Ajay Sood had returned the brief on 4.2.2006, this could have been filed within a reasonable time of 6-7 days but again the appellant took 24 days to file the appeal. In such circumstances, we hold that there is no reasonable explanation to condone the delay. Consequently, the appeal is held to be time barred. In view of the discussion above, the appeal being time barred and meritless is dismissed. 7. Copies of this order be sent to the partis, free of charge.