BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD.
F.A.No.1225/2013 in C.C.No.38/2013, District Forum, SRIKAKULAM.
Between:
- The Office Manager, MRF Ltd.,
Door No.3-304, Aadarshngar,
Opp:Old Dairy Farm, Near Sri
Sampath Sowbhagya Function Hall,
- The Chairman and Managing Director, MRF Ltd.,
826, 5th floor, Tarapore Towers, Annasalai
Chennai, Tamilnadu 600 002.Appellants/
O.P.Nos.2 & 3
And
- K.J.Krishna Reddy S/o.Veera Reddy
Aged about 45 years, Occ:Contractor,
KLR Constructions, Plot No.99
-
- Complainant
- Proprietor
M/s Neelam Automobiles,
Chinna Baratam Street, Srikakulam.Respondent/
Counsel for the Appellants: M/s J.Prabhakar.
Counsel for the Respondents: - served.
QUORUM: HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT.
AND
SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER.
FRIDAY, THE TWENTY FIFTH DAY OF JULY,
TWO THOUSAND FOURTEEN
Oral Order ( Per Hon’ble Sri Justice GopalakrishnaTamada, President.)
***
Opposite parties 2 and 3 are the appellants and they filed this appeal assailing the order dated 04-6-2013 in C.C.No.38/2013 on the file of District Forum, Srikakulam whereby the District Forum while allowing the complaint directed the appellants herein to pay an amount of Rs.18,050/- towards damages on account of defective tyre supplied by them and they were also directed to pay Rs.2,000/- towards litigation expenses including advocate fee of Rs.1,000/-.
The brief facts which led to the filing of the complaint are that the respondent who is a contractor engaged in contracts of laying roads by using his tipper lorry. As the tyres that were in existence to the tipper lorry were old, he purchased four tyres from first opposite party, dealer, manufactured by MRF tyres i.e. appellants herein on 13-7-2012 by paying an amount of Rs.72,200/- towards their price. However as one of the tyres was damaged, he gave the same to the dealer which in turn sent it to the manufacturer i.e. appellants herein for inspection. The first appellant after getting the said tyre inspected observed that there is no manufacturing defect. Alleging that the same amounts to deficiency in service, the complainant got issued a legal notice dated 05-10-2012 to which the opposite parties gave replies with false allegations. Therefore, the complainant approached the District Forum for a direction to the opposite parties to refund an amount of Rs.18,050/- i.e. cost of the tyre together with subsequent interest at the rate of 24% p.a. and pay Rs.30,000/- towards compensation and Rs.5000/- towards damages and Rs.2000/- towards litigation expenses.
Opposite parties filed their respective counters denying the various allegations made by the complainant in his complaint.
After hearing both the parties and considering Exs.A1 to A7 and B1 marked on behalf of the parties, the District Forum came to the conclusion that the said tyre which was supplied by the opposite parties was defective and in those circumstances, directed the appellants herein to pay an amount of Rs.18,050/- towards damages on account of defective tyre supplied by them and they were also directed to pay Rs.2,000/- towards litigation expenses including advocate fee of Rs.1,000/-.
As stated supra, the said order is questioned by the opposite parties 2 and 3 in this appeal.
It is mainly contended by the learned counsel for the appellants stating that the complainant/respondent is not a ‘consumer’ within the meaning of Section 2(d) of the Consumer Protection Act, 1986. According to him in the complaint and in the chief affidavit, the respondent/complainant stated that he is carrying on contracts i.e. commercial activity by using the said tipper lorry and in those circumstances, the said commercial activity does not fall within the meaning of Section 2(d) and in those circumstances the District Forum ought not to have entertained the said C.C. It is his further submission that when the complainant’s contention is that the tyre is damaged, he ought to have got the said tyre referred to an expert for his report as provided for U/s.13(1) (c).
Despite the fact that notice was served on the respondent/complainant, he has not chosen to appear either in person or through an advocate before this Commission.
Heard.
No doubt it is true as rightly contended by the learned counsel for the appellant that when a person does not fall within the meaning of Section 2(d) of the Consumer Protection Act, 1986, the District Forum has no jurisdiction to entertain the complaint. According to the complaint filed by the complainant, it is a fact that he is carrying on business in laying roads and in that context, he is using the said tipper lorry for commercial activity. But it does not mean that the same would amount to commercial activity as provided in the explanation. The ‘consumer’ is a 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) 4[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 includes any beneficiary of such services other than the person who
4[hires or avails of] the services for consideration 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 of any commercial purpose;)
[Explanation.-For the purposes of sub-clause (i), "commercial purpose" does not include
use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;]
and in the explanation, it is stated that “commercial purpose” does not include use by a consumer of goods to eke out his livelihood from out of the income that is derived by using the said tipper lorry. When he used the said tipper lorry for eking out his livelihood, it falls within the meaning of explanation appended to Section 2(d). In fact in the explanation, it is clearly stated that commercial purpose does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment. In those circumstances, we are of the considered view that the said argument cannot be countenanced.
So far as the second contention with regard to reference to Section 13(1)(C) is concerned, in our considered opinion, the said contention is also untenable. Section 13(1)(c) reads as under:
13. Procedure on admission of complaint. — (1) The District Forum shall, on admission of a complaint, if it relates to any goods,—
where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum;
A part of the tyre cannot be removed for the purpose of sending it to an analyst and in those circumstances, the complainant approached the dealer i.e. first opposite party, Neelam Automobiles and produced the tyre stating that there is manufacturing defect and the same in turn referred or sent it to the manufacturer. However, the manufacturer refused to accept the said plea that there is defect in the said tyre and in those circumstances, we cannot find fault with the respondent/complainant for not following the procedure provided for U/s.13(1)(c). It is for the manufacturer who is disputing the correctness of the statement made by the complainant with regard to the defect in the tyre to send the tyre to an expert but cannot expect the complainant to send it to an expert for report. Because the laches are very clear on the part of the appellants, we cannot countenance the said submission also. In fact these aspects were gone into by the District Forum in coming to the conclusion that the said tyre is defective and the respondent/complainant was granted the relief. In those circumstances, we see no reason to interfere with the well considered order of the District Forum.
Accordingly this appeal is dismissed. There shall be no order as to costs. Time for compliance four weeks.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM Dt.25-7-2014.
