PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief present dispute is as under –
It is submitted by the Complainant that she is a sole Proprietor ofM.E.R. Travels and Transports and carrying on travels business to earn income for her livelihood. The Complainant bought the vehicle being Tata Winger bearing Registration No.MH-03-N-9240 from Opposite Party No.1 in the name of her sole proprietary concern for her livelihood by means of self employment. The Complainant has entered into an agreement with Padua High School, Mankhurd, Mumbai, to carry school children only, for which consideration being around sum of Rs.30,000/- to Rs.35,000/- were likely to receive from the parents of the school children’s with approval of the said School Authority. The Complainant purchased aforesaid vehicle for the purpose to earn monthly income for her livelihood and to maintain her family out of the said income likely to be received from the parents of the school children’s.
2) It is submitted that Opposite Party No.1 is a trader, dealer in selling motor vehicles manufactured by Opposite Party No.2. Opposite Party No.1 has agreed to sell aforesaid vehicle being Winger to the Complainant by and under vehicle Sales Invoice dtd.29/06/08 for total consideration of Rs.5,93,074/- exclusive of all other charges. The Complainant has produced copy of Sale Invoice alongwith complaint at Exh.‘A’ It is submitted that said vehicle was required to be prepared to make roadworthy and other interiors, for which Opposite Party No.1 asked the Complainant to pay additional sum of Rs.1 Lac. The Complainant was compelled to barrow finance of Rs.6,20,765/- to pay price of Rs.6,93,074/- to the Opposite Party No.1 from M/s. Tata Motor Finance Ltd. by and under Contract No.5000304203, dtd.29/06/2008 and paid entire amount to Opposite Party and requested to release the vehicle.
3) It is submitted that Opposite Party No.1 upon receipt of full consideration delivered the said Winger bus capacity of 1 + 13 persons on 02/07/08 under Delivery Note dtd.30/06/08 alongwith Sale Certificate dtd.29/06/08, to the Complainant. The said vehicle was delivered alongwith Temporary Certificate of Registration, for which Pay Order of Rs.25,638/- dtd.02/07/08 was handed over to Opposite Party No.1. It is the case of the Complainant that Opposite Party No.1 delivered aforesaid vehicle to the Complainant on 02/07/08 at about 11.08 p.m. without giving prior inspection. The Complainant inspected the vehicle on 03/07/08 and that time the Complainant noticed defects in the vehicle and recorded the defects on the delivery challan itself stating that the delivery of the said vehicle is taken without acceptance and requested Opposite Party No.1 to immediately remove defects in the said vehicle.
4) Thereafter, the Opposite Party No.1 arranged the Service Engineer, who visited and inspected the vehicle on 03/07/08 and informed that following defects are found in the vehicle –
a) Coolant water leakage from Coolant Reservoir.
b) Dummy indicator on left hand side was broken.
c) Left hand side Suspension was noisy.
d) Gear was noisy.
e) Prima facie defect detected by service Engineer in the engine.
f) Window glass form rear side was broken and pieces found in the vehicle.
5) It is averred in the complaint para no.10 that service Engineer of Opposite Party No.1 informed to the driver of Complainant Mr. Jairaj, that he had not brought the required spares of the vehicle, which can be sorted out subsequently and requested to complete the process of Registration of the vehicle. The Service Engineer went back without doing any repairs. He again came back on 04/07/089 to replace the defective parts of the said vehicle and made attempt to replace certain defective parts. However, the vehicle could not be moved and/or started. Vehicle was started on 06/07/08 to pickup school childrens that time it was found that Coolant Tank is leakaged and throwing water. Then on that day at 11.00 a.m. said defect was immediately reported to workshop of Opposite Party No.1 at Nerul. It was informed that vehicle cannot be repaired at the site. It was requested to bring the vehicle to the workshop of Opposite Party No.1. Accordingly, vehicle was taken to the workshop of Opposite Party No.1 by Towing and two mechanics inspected the vehicle. Thereafter the Complainant requested Opposite Party No.1 to replace the vehicle vide letter dtd.07/07/08. It is submitted that then the vehicle was brought in Bombay and completed all formalities inclusive of payment of Octroi, No objection Certificate from BMC as well as Permit for Contract carriages to carry school childrens from their resident to school in Govandi & Chembur.
6) It is contended that subject vehicle was insured with Bajaj Alliance General Insurance Co. Ltd., under Cover Note dtd.29/06/08. It is alleged that since the day of delivery the subject vehicle was found defective and it was not roadworthy. Therefore, the Complainant was unable to fulfill an obligation to carry school childrens. The vehicle was required to be taken to the garage of Opposite Party No.1 at Nerul by towing vehicle on several occasions i.e. for about 14 times. Several manufacturing defects were found by the Service Engineer of Opposite Party No.1. Inspite of replacement of several parts, the vehicle was not smooth on the road and thereby the Complainant suffered heavy loss of income i.e. Rs.30,000/- per month and also suffered mental agony and harassment. The Complainant was unable to repay loan installment to M/s. Tata Motor Finance Ltd., being sister concern of Opposite Party No.2. Then the said vehicle was retained by Opposite Party No.1 for 15 days i.e. from 06/07/08 to 21/07/08 for the purpose of repairs and replacement of Engine long Block U/W and FIP and Injectors, etc. and then the vehicle was delivered to the Complainant with assurance that there will be no problem in the vehicle.
7) It is the case of the Complainant that inspite of replacement of the engine the vehicle was not smooth on the road. Hence, it was again sent to the garage of Opposite Party No.1 on 16/08/08 and retained there upto 20/08/08 to remove the defect. The Service Engineer replaced the new tank and fix old fuel filter and other parts of the said vehicle. However, it was found that leakage of steering oil and it was not at all repaired. Therefore, said vehicle again taken to the garage of Opposite Party No.1. At workshop, Service Engineer replaced Clutch Plate, Pressure Plate, etc. which were found difficult and again the said vehicle was delivered to the Complainant on 29/08/2008. Even thereafter, there was complaint of noisy gear box and noisy front excel, shock absorber as well as starter problem. Due to the manufacturing defects in the vehicle the Complainant suffered heavy monitory loss, mental agony and harassment.
8) Opposite Party No.1 vide its letter dtd.21/07/08 confirmed the defects in the said vehicle and had tendered apology for the said defects. The Complainant by letter dtd.25/08/08, requested Opposite Party No.1 to replace the vehicle. Despite repeated requests, Opposite Party No.1 & 2 have failed and neglected to replace said defective vehicle. It is alleged that due to deficiency in service and unfair trade practice on the part of Opposite Parties the Complainant has suffered heavy loss, mental agony and harassment and therefore, she has filed this complaint. The Complainant has requested to declare that the subject vehicle being Tata Winger bearing Registration No.MH-03-N-9240 manufactured by Opposite Party No.2 and sold by Opposite Party No.1 to the Complainant is having inherent manufacturing defect and that Opposite Parties are guilty of deficiency of service and unfair trade practice. The Complainant has requested to held and declare Opposite Parties jointly and severally liable to replace the said vehicle by paying reasonable compensation to the Complainant. The Complainant has requested to direct Opposite Parties jointly and/or severally pay to the Complainant sum of Rs.11,98,067/- towards compensation alongwith interest @ 12% p.a. on account of loss of income, monitory loss, inconvenience as well as hardship and mental torture. The Complainant has prayed to direct Opposite Parties to pay to the Complainant a sum of Rs.25,000/- towards the cost and legal expenses and for any other reliefs as may deem fit. Alongwith the complaint the Complainant has produced affidavit in support of complaint, particulars of claim and copies of documents as per list of documents.
9) Opposite Party No.1 has filed written statement and thereby denied each and every allegation made in the complaint contending that complaint is false, misconceived and is liable to be rejected. The Opposite Party No.1 has admitted that Opposite Party No.2 is the manufacturer and Opposite Party No.1 is a authorized dealer of Opposite Party No.2. It is alleged that Complainant has filed this complaint only with intention to harass the Opposite Parties and it is gross misuse of the process of law. It is submitted that the Complainant is not a ‘Consumer’. The Complainant is in her complaint has repeatedly stated that she is the sole proprietor of M.E.R. Travels and Transport and hard purchased the said vehicle to earn income for her livelihood. In fact the Complainant has knowingly concealed the fact that she is not only owner of the said vehicle but actually (she) they are bus operators and are running business on a big scale and their business is flourishing. The Complainant has purchased several buses from Opposite Party & have got them financed through various financial institutions. According to the Opposite Party No.1, Complainant is owner of approximately 45-50 buses and they are plying for ferrying passengers working for BPCL and other corporate offices. Letterhead produced by the Complainant alongwith complaint at Exh.‘F’ reveals the true nature of her business. It is printed on the Letterhead that “FLEET OWNERS/BUS TRANSPORTERS.” It is submitted that the Complainant has made false statement on oath knowingly that she is not a ‘Consumer’ within the meaning of the Consumer Protection Act, 1986. The Complainant is carrying on business on large scale and not for her livelihood as tried to make out by her repeated pleading false averments in her complaint. As the Complainant is not a ‘Consumer’ hence, present complaint is liable to be dismissed with cost.
10) It is further alleged that complaint is frivolous, vexatious and filed ulcerative motive to extort monies from the Opposite Parties. It is admitted position that Opposite Parties have rendered services promptly and attended to the vehicle. It is submitted that grievance made by the Complainant are of minor nature and were attended promptly and rectified. The engine long block was replaced under warrantee. The clutch plate and pressure plate were replaced free of cost, though the same were chargeable, but as gesture of goodwill Opposite Party No.1 had replaced the same. Opposite Party No.1 provided free service to the Complainant as per the guidelines mentioned in the Operators Service Book. The Opposite Party has denied each and every allegation made in the complaint and submitted that from time to time the vehicle was thoroughly checked by Engineers of Opposite Party. At the time of engine long block was replaced with a new one in warranty, and free of cost. It is alleged that engine of the said vehicle must have been damaged due to the vehicle being driven negligently by various drivers hired by the Complainant. The Opposite Party No.1 has given details of the vehicle repairs carried out by them and submitted that allegations made by the Complainant are false and therefore, complaint be dismissed with cost. In support of written statement Opposite Party No.1 filed affidavit of Mr. P.C. Bedi, General Manager of Bafna Motors.
11) Opposite Party No.2 has filed written statement and thereby resisted claim of the Complainant contending interalia that complaint is gross misuse of the process of law and filed with intention to derive unlawful gain.
12) It is submitted by the Opposite Party No.2 that it is clear from the Complainant’s own admission that the Complainant has purchased vehicle in question for business purpose and hence, the Complainant is not a ‘Consumer’. The Complainant is sole proprietor of M.E.R. Travels and Transport and had purchased the vehicle to earn income. The Complainant has knowingly concealed material facts from this Forum that she is not only the owner of said vehicle but actually she is the Bus Operators which are running business on big scale. The Complainant had purchased several buses from Opposite Party. It is contended that the Complainant is owner of approximately 45-50 buses and said buses are plying for various passenger working with corporate offices. Admittedly, the Complainant is a fleet owner and bus transporters and therefore, the Complainant is not a ‘Consumer’ within the meaning of ‘Consumer’ as defined in the Consumer Protection Act, and therefore, complaint is liable to be dismissed.
13) It is contended that that complaint is misconceived, frivolous and vexatious and so called problems of behind scope of warranty. Allegations are made by the Complainant are baseless and not supported by the report of laboratory or experts. Opposite Party No.2 has denied each and every allegation made in the complaint and submitted that complaint is liable to be dismissed with cost.
14) We heard oral submissions of Ld.Advocate Ms. Archana Lad, for the Complainant and Ld.Advocate Mrs. Anita Marathe, for the Opposite Party and mater was closed for order.
15) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant is a ‘Consumer’ as defined under Sec.2(1)(d) of the Consumer Protection Act,
1986 ?
Findings : No
Point No.2 : Whether the Complainant is entitled for reliefs as prayed for ?
Findings : No
Reasons :-
Point No.1 :- It is undisputed fact that on 29/06/08, the Complainant has purchased Tata Winger bearing Registration No.MH-03-N-9240 manufactured by Opposite Party No.2 from their various agent Opposite Party No.1 for Rs.5,93,074/-. The Complainant has produced copy of vehicles Sale Invoice, dtd.29/06/08 alongwith complaint at Exh. ‘A’. In the complaint the Complainant has stated that she is a sole Proprietor of M.E.R. Travels and Transports and carrying on business to earn income for her livelihood. In the complaint the Complainant has repeatedly stated that she purchased vehicle in question to earn income for her livelihood. The Complainant has filed this complaint on the allegations that there is manufacturing defects in the aforesaid vehicle purchased by her. Therefore, inspite of several repairs she could not use the vehicle for the purpose for which it was purchased and thereby she has suffered financial loss, mental agony and harassment.
The Opposite Parties No.1 & 2 have raised contention that the Complainant is not a ‘Consumer’ as defined under Sec.2(1)(d) of the Consumer Protection Act, as the Complainant has purchased vehicle in question for business purpose. It is submitted that even according to the Complainant that she is a sole proprietor of M.E.R. Travels & Transporters and carrying on business. According to the Opposite Parties, the Complainant is owner of approximately 45-50 buses and she is plying the said buses for earning income. Ld.Advocate for the Opposite Party has referred to the Complainant’s letter dtd.04/07/08, send to the Opposite Party No.1. This letter is on the Letterhead of M.E.R. Travels and Transports. M.E.R. Travels and Transporters described as fleet owner/bus transporter. Admittedly the Complainant is the sole proprietor of M.E.R. Travels and Transporter. It is not explained by the Ld.Advocate for the Complainant that the Complainant has purchased only one vehicle for her M/s. M.E.R. Travels and Transports then why it is printed on the letterhead of M.E.R. Travels and Transport that they are fleet owner and bus transporter? The Complainant has not filed rejoinder or affidavit of evidence. The Complainant has not denied allegations made by the Opposite Party No.1 & 2 on the oath that she is owner of about 45-50 vehicles. The Complainant had filed written argument but in the written argument she has merely alleged that she purchased vehicle in question for her livelihood but not specifically denied allegations that she is a fleet owner or that she is owner of about 45-50 vehicles. Admittedly the sole proprietor of M/s. M.E.R. Travels and Transporters in the letterhead the Complainant herself mentioned owner of M/s. M.E.R. Travels and Transports in which M.E.R. are described as the fleet owners/bus transporters. It is clear from the evidence on record that the Complainant has purchased vehicle in question for the business purpose and not for earning her livelihood as alleged in the complaint. As per provisions of Section 2(1)(d) of the Consumer Protection Act, “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 persons who [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 for any commercial purpose.]
[Explanation. – For the purpose 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;]
As discussed above the Complainant has purchased vehicle in question for commercial purpose therefore, she is not a consumer as defined under the Consumer Protection Act. Hence, we answer point No.1 in the negative.
Point No.2 :- As discussed above, the Complainant is not a Consumer as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986. Therefore, present complaint is not maintainable before this Consumer Forum under Consumer Protection Act, 1986 and in the result the Complainant is not entitled for any relief claimed against Opposite Parties from this Forum. Therefore, we answer point no.2 in the negative.
For the reasons discussed above, complaint is deserves to be dismissed. Hence, we pass following order -
O R D E R
i.Complaint No.107/2009 is dismissed with not order as to cost.
ii.Certified copies of this order be furnished to the parties.
