BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.39 of 2017
Date of Instt. 13.02.2017
Date of Decision: 17.07.2019
Gursimran Singh S/o Harpal Singh R/o Village Ganna Pind, Tehsil Phillaur, Distt. Jalandhar.
..........Complainant
Versus
1. Ashok Leyland Ltd., through its Chairman/CEO/MD, registered and Corporate, Office No.1 Sardar Patel Road, Guindy, Chennai-600032.
2. Glob Auto Parts (Regd.), through its M. D., Office at Nand Farm, G. T. Road, Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Chander Sharma, Adv Counsel for the Complainant.
Sh. V. K. Gupta, Adv Counsel for the OPs No.1 & 2.
Order
Karnail Singh (President)
1. This complaint has been filed by the complainant, wherein alleged that he purchased Ashok Leyland Tipper bearing Engine No.EYPZ108670, Chassis No.MBIHTYYC7EPYK3815 from the OP No.2, who is the authorized dealer of OP No.1 and OP No.1 is the manufacturer of the above said vehicle. The vehicle in question was duly registered having Registration No.PB-08-CP-5105. The said vehicle was met with an accident on 24.12.2014 due to which the Chassis of the above said vehicle has been totally damaged along with some other damages to the vehicle. The complainant has sent above said vehicle for the repair in the workshop of the OP No.2 and the OPs has changed the Chassis frame along with some other part of the said vehicle in their workshop of the OP No.2. At the time of repair and change of Chassis Frame, the OPs have committed a grave error and due to their negligence, they have not mentioned the Chassis Number on the new Chassis Frame which they have changed in the above said vehicle. As the Chassis Number has not mentioned by the OP and thus, the DTO Jalandhar has refused to pass the vehicle and even the complainant was not able to get the fresh insurance of the above said vehicle. It is pertinent to mention here that earlier the above said vehicle was fully insured with the National Insurance Co., but they have also refused to renew the insurance policy further as the OPs have not mentioned the Chassis number of the vehicle.
2. That due to the negligence and deficiency in service on the part of the OPs, the complainant is unable to ply the above said vehicle for commercial purpose. The complainant has suffered a loss to the tune of Rs.40,000/- per month since February 2015 as the above said vehicle is standing still due to the non passing of the above said vehicle by the DTO Jalandhar, due to the lack of Chassis Number of the above said vehicle and even the insurance companies have not renewed the insurance policy of the said vehicle. The complainant has approached the OP No.2 a number of times to rectify the defect by mentioning the Chassis number on the Chassis Frame, but the OP No.2 flatly refused to do so by stating that it is not possible to mention the chassis number after fitting the same. The OP have acted negligence and due to their negligence the complainant has suffered a financial loss and hence, the complainant has no other efficacious remedy except to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay sum of Rs.8,80,000/- as compensation/damages on account of non ply of above said commercial vehicle since February 2015 and further OPs be directed to pay a sum of Rs.1,00,000/- as compensation on account of harassment due to the negligence and deficiency in service on the part of the OP and further directed to pay a sum of Rs.10,000/- as litigation cost.
3. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable under any provision of law and is liable to be dismissed. There is no deficiency in service or unfair trade practice on the part of the answering OP No.1. It is further averred that this Forum has no jurisdiction to entertain the present complaint, being reason the present complaint has been filed by the complainant with the plea that he purchased the vehicle for commercial purpose and as such, the complainant does not come within the definition of “consumer” as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986, as the vehicle in question is a commercial vehicle. It is further averred that the complainant is barred by his own act and conduct to file the present complaint and even the complainant has concealed the material facts from the Forum and as such, there is no deficiency and negligence as well as unfair trade practice on the part of the OPs and hence, the complaint is liable to be dismissed. On merits, the purchase of the vehicle by the complainant as well as get it repaired are admitted facts, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. OP No.2 filed its separate reply, but took almost same preliminary objections as well as plea on merits and also make prayer that the complaint of the complainant without merit, the same may be dismissed.
5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-3 and thereafter, evidence of the complainant was closed by order on 20.12.2017.
6. Similarly, counsel for the OPs tendered into evidence two affidavits Ex.OPA & Ex.OPB alongwith some documents Ex.OP-1 and Ex.OP-2 and then closed the evidence.
7. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
8. Before going into the issue in dispute, we like to take a legal plea taken by the OPs that the complainant is not a consumer because the vehicle in question was purchased by the complainant for commercial purpose. In order to ascertain the fact whether the vehicle was purchased by the complainant for commercial purpose or not and further whether the case of the complainant is covered under the provisions of Section 2 (1) (d) of the Consumer Protection Act i.e. the vehicle in question is plied by the complainant for earning his livelihood, but such like plea has not been taken by the complainant in the entire complaint rather the complainant himself categorically elaborated in the complaint in Para No.1 that he purchased Ashok Leyland Tipper, means the Tipper is not a such vehicle which can be used for personal traveling rather it is a commercial vehicle and this fact has been fortified by the complainant himself in Para No.6 by describing that the complainant is unable to ply the above said vehicle for commercial purpose and has suffered a loss, to the tune of Rs.40,000/- per month since February, 2015. Not so, the complainant further in the Prayer Clause again repeated that a compensation may be awarded to the complainant on account of non-ply of above said commercial vehicle since February, 2015.
9. In order to meet the requirement of said provision Section 2(1) (d) made reliance upon a judgment of Hon’ble National Commission, cited in 2008 (1) CLT 498, titled as “Ashok Leyland Finance Limited & Ors. Vs. Ramjilal Gupta”, but after going through the facts of that judgment, we find that the facts of the aforesaid judgment of the Hon’ble National Commission are not identical to the facts of the case in hand.
10. Rather the judgments referred by Ld.Counsel for the OPs are apparently applicable in this case, which are as under. The judgment of the Hon’ble National Commission, cited in 2011 (2) CPJ 257, titled as “Sanghi Brothers Manager Vs. Raj Kumar Jaiswal”, wherein his Lordship held as under:-
“Defect in manufacturing- Commercial Purpose-Consumer-Vehicle was repaired by complainant at his own cost- His business was suffered-Deficiency in service-Allegation of-Complaint - Dismissed by District Forum - Appeal-Allowed by State Commission- Hence, this revision - Averments in complaint itself establish that vehicle was purchased for commercial purpose and complainant had suffered business loss - In circumstances, complainant cannot be considered as a consumer within definition of Section 2(1) (d) of the Consumer Protection Act.”
There is an other judgment of the Hon’ble National Commission, cited in 2012(4) C. P. J. 597, titled as “Richa & Co.Vs. Dlf Universal Ltd. & Anr.”, wherein his Lordship held as under:-
“Commercial purpose–Term “commercial purpose” appears as an exclusion clause in the definition of “consumer” under Section 2(1) (d) – Since cases of resale have been separately referred to in this clause, it becomes obvious that the words “commercial purpose” are intended to include any commercial activity, other then resale, where goods are purchased for being used in any activity directly intended to generate profit.”
Further, we like to refer an other pronouncement of Hon’ble National Commission, cited in 2014(2) C. P. R. 691, titled as “Max Infra (India) Ltd. Vs. Ashok Leyland Ltd. and others”, wherein his Lordship held as under:-
“Consumer Protection Act, 1986 Section 2(1) (d) Purchase of Tipper Vehicle- Manufacturing defect- complaint filed- held, since vehicle was purchased for commercial purpose, thus, he is not a consumer – complaint dismissed with liberty to complainant to approach proper Forum/Civil Court for redressal of its grievances.”
Even there is a judgment of the Hon’ble Apex Court, cited in 1995 (2) C. P. J. 1, titled as “Laxmi Engineering Works Vs. P. S. G. Industrial Institute”, wherein his Lordship held as under:-
“Consumer Protection Act, 1986, Section 2(d)- Consumer- A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood by means of self employment – Is within the definition of the Expression “consumer” – Whether the purpose for which a person has bought goods is a “commercial purpose” within the meaning of definition of expression “consumer” in Section 2(d) of the Act – Is always a question of fact – To be decided in the facts and circumstances of each case”.
11. In the light of the above judgments, we find that the complainant himself categorically alleged in the complaint that the vehicle in question was purchased for commercial purpose, but he is not alleging that the same is ply by him for earning his livelihood and as such, the complainant is not a consumer and therefore, the complaint of the complainant is not maintainable, therefore, the same is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Karnail Singh
17.07.2019 Member President
