BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 08th March 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.299/2014
(Admitted on 13.08.2014)
Mrs. Juliet Vas,
W/o Vinod J.J. Vas,
Aged 47 years,
Residing at Jeevan Das Alfredbagh,
Behind Falnir,
Manglaore.
….. COMPLAINANT
(Advocate for the Complainant: Sri UPM)
VERSUS
1. The Regional Manager (South),
TATA Motors Limited,
14th Floor, Canbera Towers,
U.B. City, 24 Vittal Mallya Road,
Bangalore 560001.
2. The Head Sales & Marketing,
TATA Motors Limited,
Commercial Vehicles Marketing Office,
20th Floor, Tower 2,
One India Bulls Centre,
841 Senapati Bapat Marg,
Mumbai 4000 013.
3. Bellad Engineers Pvt. Ltd.,
Head Office,
Bellad Chamber III, Unkal Cross,
Hubli 31.
4. Arvind Motors Pvt. Ltd.,
Sales, Services, Spares-TATA Motors,
Golden Jubliee Building, N.H. 17, Kulur,
Mangalore 013.
…........OPPOSITE PARTIES
(Advocate for the Opposite Party No.1 & No.2: Sri LD)
(Opposite Party No.3: served)
(Advocate for the Opposite Party No.4: Sri IGS)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D:
The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims with opposite party No.1 she booked two TATA Super Ace vehicle for personal use for which opposite party No.3 promised they would supply TATA Super Ace (LGV) 475 TC IC BS III being their latest 2014 model for a total sum of Rs.9,47,846/ each costing Rs.4,73,923 exclusive of Insurance, registration and life tax with a promise that opposite party No.3 would pay the insurance of the 1st year and 3 free labour services. Complainant by borrowing hand loan paid complete amount as per invoice dated 30.4.2014 to opposite party No.3. The vehicle was handed over to M/s Ruby Auto Works, Mangalore for body building and painting works spending of Rs.80,000/ per vehicle and applied loan from the bank. In the month of June 2014 instead of 2014 had promised to complainant shocked to note that the vehicles supplied was of 2012 & 2013 of another model was delivered. Against the promise of opposite party No.3 and registered due to negligence of opposite parties complainant had to suffer as not her intention to purchase the vehicle of 2012/13. Even free service was not provide and Rs.5,796/ was charged on complainant by opposite party. As such the complainant got issued legal notice as there was deficiency in service seeking the relief claimed in the complaint.
2. During the pendency of proceedings on 9.12.14 a memo was filed on behalf of opposite party No.4 for settlement and DD of Rs.2,565/- was delivered to complainants account which was issued in the name of complainant and a memo was filed not pressing the complainant against opposite party No.4 on behalf of complainant on the same day. Hence the complaint against opposite party No.4 is dismissed as settled out of the Forum.
II. Opposite party No.1 and No.2 filed written version. The case of complainant is that she had purchase these two vehicles for commercial purpose hence the complaint before this Forum is not maintainable. TATA Super Ace one ton mini-truck designed and created to use for addressing business/commercial requirements. Even as per the complaint allegation at para 2 and 4 it is clear that the complainant is a business woman made for her day to day affairs as she is a woman entrepreneur entered transaction between complainant and opposite party No.3 and opposite party No.1 and No.2 is not aware of any such representation and assurance made by opposite party No.3 as alleged in the complaint. Hence complaint against opposite party No.1 and No.2 is not maintainable. The remedy of complainant if at all is before a Civil Court.
2. As there is no relationship of employer and employee the complaint is not maintainable it also alleged that the audio system was on the payment of Rs.12,500/ hence seeks dismissal.
3. In support of the above complainant Mrs. Juliet Vas filed affidavit evidence as CW1 and produced documents got marked at Ex.C1 to C22 as detailed in the annexure here below. On behalf of the opposite parties not filed any evidence.
III. In view of the above said facts, the points for consideration in the case are:
- Whether this Forum has Jurisdiction to try the case?
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsel for complainant side filed notes of arguments. Opposite parties not filed any notes/oral arguments. We have considered entire case filed on record including evidence tendered by complainant and notes arguments of the party. Our findings on the points are as under follows:
Point No. (i) : Negative
Point No.(ii) & (iii) : Does not survive
for consideration
Point No.(iv) : As per the final order.
REASONS
IV. POINTS No. (i): The complainant in the complaint itself mentions of ordering to purchase two TATA Super Ace vehicle (LGV) with opposite party No.1. She also claimed she is a woman entrepreneur
there is no mention made anywhere in the complaint or even in the cause title of the complaint or even in the affidavit evidence by this complainant as to what is her nature of business or what is the avocation she his running with the help of these two Ace vehicles.
2. Section 2 (d) (i) and (ii) of C P Act relevant portion reads:
d) 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 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 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, 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 purpose];
[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;]
Ongoing through above portion as rightly pointed out for opposite party in the objection at no stretch of imagination in our considered view purchase of these two commercial vehicle of one ton capacity each with which even body building was also got done by complainant at a cost of Rs.80,000/- each shows that both the vehicle is purchased by complainant for commercial purpose. In the absence of any pleading to the contrary by complainant as to the nature of women entrepreneur and these vehicle are used for personal use, we are justified in drawing inference that the purpose of which these two vehicles are purchased
for business purpose only. Hence the claim of the complainant that she is a consumer within the definition of section 2 (1) (d) cannot be accepted. Hence we are of the view that this Forum has no jurisdiction to entertain the compliant. Hence we answer point No.1 in the negative.
POINTS No. (ii): In view of answer to point No.2 & No.3 these two points does not survive for consideration.
POINTS No. (iii): Wherefore the following
ORDER
The Complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 8th March 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mrs. Juliet Vas
Documents marked on behalf of the Complainant:
Ex.C1: 30.04.2014: Invoice cum Bill
Ex.C2: 29.04.2014: Statement of account of Federal Bank Ltd
Ex.C3: 10.06.2014: Statement of account of Federal Bank Ltd
Ex.C4: : Certificate cum policy schedule issued by National Insurance Company
Ex.C5: : Certificate cum policy schedule issued by ICICI Lombard Motor Insurance Company ltd.
Ex.C6: 09.06.2014: Cash receipt issued by Ruby Auto Works
Ex.C7 &
Ex.C8: : Receipt issued by RTO towards payment of Road Tax (2 in Nos.)
Ex.C9 &
Ex.C10: : Extract of Form 23-A (2 in Nos.)
Ex.C11 &
C12: : B-Register Extract issued by RTO (2 in Nos.)
Ex.C13: 11.06.2014: Lawyer’s Registered Notice
Ex.C14, C15 &
Ex.C16: : Acknowledgement Card (3 in Nos.)
Ex.C17: 27.06.2014: Reply notice by TATA Motors Ltd along with Postal cover
Ex.C18 &
Ex.C19: : Operator’s Service Book of TATA Motors Ltd (2 in Nos.)
Ex.C20, C21 &
Ex.C22: : Tax Invoice issued by Arvind Motors pvt Ltd, Mangalore (3 in Nos.)
Witnesses examined on behalf of the Opposite Parties:
RW1 Nil
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 08.3.2017 PRESIDENT
