JUDGMENT

1. This case is arisen of the petition filed under section 12 of the Consumer Protection Act, 1986 wherein the complainant has prayed for a decree of replacement of the defective Fuel injection pump, compensation of Rs. 2,99,000/- as compensation for financial loss, bank interest, inconvenience, mental agony and cost of Rs. 3000/- for the suit.

2. The case of the complainant in brief is that he is the permanent resident of Sib-bari Road Diphu Town and OP No. 1 is the authorized dealer of Tata Diesel Vehicle having its sales and servicing Office at Dispur, Guwahati. OP No. 2 is the Area Manager of OP No. 1 and OP No. 3 is the Manufacturer of Tata Vehicle having its Head Office in Mumbai, Maharastra. He purchased a Tata Diesel Bus having chasis Model LP 1512 42TC, bearing chasis No. 412 050 G 221115223 and Engine No. OOF 62153110 from OP No. 1 on 31.10.2000 on a payment of Rs. 5,98,713/- said amount was paid vide D/D No. 080639 dated 27.10.2000 for Rs. 5,44,713 and in cash Rs. 54,000/- only vide M. R. No. 1021 dated 30.10.2000. For purchase of the said vehicle the complainant obtained a loan of Rs. 6, 71,000 from the State Bank of India, Diphu Branch. After taking delivery of the said Bus its body was built by M/S Budhalal Sharma & Sons, A.T. Road, Khutikotia, Haiborgaon, Nagaon. Said vehicle was got registered as AS 09 5637. The vehicle was also got insured under insurance policy No. 31/40/11/0959 dated 16.01.2001 of the United India Insurance Co. Ltd., Diphu Branch. He managed to place the vehicle on road for plying from the 1^st week of February, 2001. After few days of plying he was informed by his driver that the alleged bus was not performing satisfactorily as its fuel injection pump was not performing satisfactorily. He placed the bus on 23.02.2001 at servicing center of OP No. 1 for servicing and then he was apprised of defecting fuel injection pump of the alleged bus. The servicing center of OP No. 1 did not take any step for replacing of defected fuel injection pump or getting the same to be repaired. He again placed the vehicle on 01.03.2001 in servicing center of the OP No. 1 but nothing was done to his satisfaction though he fervently requested OP No. 1 to check the fuel injection pump and to remove the same. Thereafter he placed the vehicle in servicing center at Guwahati with a request to check the vehicle and to remove defective fuel injection pump but his request went in vein. The bus underwent seven Nos. of servicing by the OP No. 1 but the alleged defect fuel injection pump neither was cured nor removed. Thereafter he made communication with the OP No. 1 expressing his displeasure with the service rendered by OP No. 1 but he also refrained from taking suitable step. The OPs were negligent throughout in the performance of their duties towards him as a consumer and due to their negligence he had to suffer a huge financial loss. There was a apparent fault imperfection and defect in the fuel injection pump attached to engine of the vehicle in question since its inception. Hence this case has come up.   

3. On receipt of summons, the OP No.1 appeared and contesting the suit by filing written statement denying allegation brought against it. Apart from denying the allegations brought, the OP No. 1 has taken legal pleas that the complaint is not maintainable in its present form and under law and facts, that there is no cause of action for the complaint again OP No. 1, that the complainant is bad for non-joinder and mis-joinder of necessary parties, the complaint is bad of waiver, estoppels, acquisance and/or on principle of analogous hereto and that the complaint is barred by limitation.

4. The case of the OP No.1 in brief is that it has no service center at Diphu. After receiving the letter dated 18-02-2002 from the pleader of the complainant it requested him to place the vehicle in servicing center of the opposite party but he did not do so. There was no apparent fault or imperfection in the fuel injection pump attached to the engine from the very beginning. For Poor maintenance by the owner of the vehicle and rash or negligence driving of the vehicle some problem in the fuel injection pump came out which were duly rectified by its engineer. The vehicle in question was purchased for commercial purpose to earn profit and as such complainant does not fall in the preview of the consumer. Hence the case is liable to be dismissed.

5. OP Nos. 2 and 3 also appeared on receipt of the notice and contested the case by filing written statement by denying all allegations brought against them. They have also raised legal pleas that complaint is not maintainable in present form under law as well as fact, that the complaint is bad for non joinder of necessary parties and that this court has no Jurisdiction.   The case of OP Nos. 2 and 3 in brief as appeared is that the complainant took delivery of fresh new TATA DIESEL vehicle without any defect on purchase after compiling all the requirements. The complainant took delivery of the vehicles after complete satisfaction. The vehicle was placed in the servicing center of the at Nagaon wherein after due checkup it was delivered to the complainant to his entire satisfaction. After running of 9060 Kilo Meters (KMs) fuel injection pump with nozzle were sent to MICO for attending complaint. The MICO has serviced the fuel injection pump and rectified the complaints and send back the same to dealer. After re-fitting fuel injection pump with nozzle to the vehicle it was tested. Upon complete satisfaction the vehicle was delivered to the complainant on 03-04-2001. On. 15-05-2001 the vehicle completed run of 18381 Kms. and the vehicle was placed in the workshop of their dealer at Guwahati Office for free service at that time the fuel injection pump was rectified and sent back to the complainant. Hence the case of the complainant is liable to be dismissed.

6. During trial the complainant has examined as many as 2 (two) witnesses. The Ops have examined none.

7.             Decisions and reasons there of:

We have very carefully gone through the argument duly advanced by the learned lawyers appearing on behalf of parties as well as evidence on record. The complainant has submitted written argument. The OPs have not taken part in argument. Their case will be considered on merit.

8. PW-1 is the complainant who has stated in his evidence that he purchase a passenger bus bearing Chasis model LP 1512 42 TC from French Motor Car Co. Ltd., Guwahati having chasis No. 412 050 GZZ 115223 and Engine No. 00F 62153110 which was delivered on 31.10.2000. After 40 days from the date of delivery he found the vehicle some defects and same were reported to the French Motor Car Co. Ltd, Guwahati. According to French Motor Car Co. Ltd. he placed the vehicle at different repairing center for repairing but defects were not made corrected. He has further stated that during the warranty period for 7 times the vehicle was placed in different repairing center of the OP No. 1 but defects could not be cured. As a result of which he suffered financial loss.

9. PW-2 is Shri Pradip Sil who was the driver of the said vehicle. According to him immediate after delivery of the said vehicle some defects were found in fuel injector pump and immediately matter was informed to the OP No. 1 and that during the warranty period said defects could not be repaired though it was placed in different servicing center of OP No. 1 for 7 times as a result of which the complainant had to spent Rs. 3,00,000/- for repairing the same.

10. OPs have stated in their written statements the complaint is not maintainable as the complainant does not falls in category of consumer in terms of purchasing of alleged vehicle from French Motor Car Co. Ltd. arraigned as OP No. 1. There is a no dispute that the complainant purchased a passenger bus in question from French Motor Car Co. Ltd. arraigned as OP No. 1 for commercial purpose.

11. Let us at first see whether the case is maintainable in its present or not. The matter of maintainability covers large area including law and facts. The users of goods and the beneficiaries of services other than the actual purchasers or hirers, who use or avail them with the approval of such purchasers or hirers have been expressly declared as consumers under the definition of the consumer. Any person who purchases goods for resale or any "commercial purpose" has been excluded from the meaning of the term 'consumer'. The expression "commercial purpose" has not been defined in the Act. It has been left to be determined by judicial interpretation. It has, however, been made clear that the use of goods and availing of services by any person, exclusively for the purpose of earning livelihood by means of self-employment does not amount to "commercial purpose". Judicially it has been established that any purchase of goods for carrying on business or any trading activity with the object of making profits is obviously a purchase for "commercial purpose". In such cases there should be a close and direct nexus between purchase of goods and making of the profits. Accordingly, the National Commission has made it clear in the case of M/s Abhinav Publishing India Pvt. Ltd. v. M/s Graphics & Print, 23 that the nature of investments in business is a relevant factor to be considered for determining the purpose of buying goods or hiring services. If there are huge investments and the prices involved in a transaction, it may be for resale and profit making. Similarly, if the goods are purchased in the name of a firm for the purpose of business that can indicate the purpose of the purchase. Also, in Vijay Narayan Aggarwal v. M/s Chowgule Industries Ltd., 24 the National Commission has held that if a person is carrying on business on a large scale and he purchases goods for earning profits, the purchase is for commercial purpose and not as a consumer. On the basis of this principle, in M/s Exan Computers Ltd. v. Tagore Gracias Panji,25 the National Commission has held that the purchase of a computer installed at the residence of the complainant for self use was not for a commercial purpose and the complainant was a consumer. The purchase of computer in this case had not taken place with the purpose of carrying on business for profits but for earning livelihood. Explaining the meaning of the term consumer, the National Commission in M/S Cheema Engineering Services v. Rajan Singh, 26 has established the rule that if any person purchases a machine for earning his livelihood he should be treated as a consumer even if he takes assistance of one or two persons to assist or help him in operating the machine. In this case, the consumer had purchased a brick manufacturing machine for earning his livelihood.  In view of discussion made above we are of the opinion that the complainant falls in category of “Consumer” and accordingly we find that the case is maintainable.

12. From the pleading of the complainant as well as evidence on record it appears that after 40 days from the delivery of the vehicle defect was detected in fuel injector pump of the vehicle and that on instruction of the OP No. 1 the vehicle was placed in its different servicing centers but neither the fuel injector pump was replaced nor it was cured. No document has been exhibited by the complainant side showing that fuel injector pump of the vehicle was defected, if defected it was curable or not. It is also evident that the vehicle was placed in the servicing center of the OP No. 1 at different times during the warranty period and it was got repaired.

13. The redressal of grievances under the Act can be claimed only for "defects" in goods or "deficiency" in services. Therefore, the Act has defined these terms clearly to explain the nature of defects and deficiencies on the basis of which proceedings can be initiated. Section 2(l)(f) defines "defect" as follows: "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods. The definition, therefore, covers any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard of goods. The standard which can be insisted upon should be as is required to be maintained under any law, contract or usage or practice in a trade. The legislature has given the widest amplitude to the term 'defect'. It is not confined by the narrow or technical limitations or meaning. It covers every kind of fault, imperfection or short-coming which may be related to the quality, quantity, potency, purity or standard of the goods.

14. Before discussing whether the OPs were reluctant to provide any service to get the defect in fuel injector pump rectified or to replace the fuel injector pump, the court needs to ascertain whether there was any defect in fuel injector pump as alleged. The complainant has not examined any expert to substantiate that the vehicle was delivered with defective fuel injector pump. Admittedly for seven times the vehicle was placed in the different servicing centre of OP No.1 and it was sent back after due check up and the complainant took back the same with complainant. That apart there is no evidence on record showing value of the alleged fuel injector pump and for how many days the vehicle remained without plying. The Service Book of the vehicle has not been produced. The vehicle was purchased with warranty facility. We find no reliable document available in the case record showing that there was defect in fuel injector pump and that the OPs committed negligent towards providing service to the complainant in terms of the Warranty of the alleged vehicle.  .

15. There is no evidence adduced by the complainant side showing that the vehicle was being plied in proper care and attention.

16. In view of the discussion made above, we find that no case was made out to grant relief or reliefs as prayed for.

    ORDER

17. In the result, the case is dismissed. According this case is disposed of on contest. Prepare the decree accordingly.

18. Given under our hand and seal of the Court on this 06^th August, 2019 at Diphu, Karbi Anglong.

            Dictated and Corrected by us