Order

    The complainant has filed this case  for claim of Rs.  Total 15,37,285/- which comes from main value of vehicle Rs. 9,12,285/- additional  used fuel for Rs. 1,12,000/- repair cost Rs. 8000/- bank loan  installment  Rs. 2,45,000/- physical, mental, harassment and damage Rs. 2,50,000/- and litigation cost Rs. 10000/-

 The complainant filed this case for the claim of above mentioned money bfore the forum on 16-03-2010 supported with an affidavit alleged therein that the complainant has a petrol  pump in the name of M/S Shiva diesels Jagadishpur west champaran  Batiya for his livelihood. He has further alleged that the o.p no. 1 & 2 are responsible for frequent supply of fuel from Baroni Refinery, o.p. no.3 is local dealer cum agent  of o.p no.1 & 2. The complainant has purchase a truck chesis no. MAT- 3731459Do9519 Engine No.- 697 TC56DQZ106603 through retail invoice through o.p no. 3 ideal D- 0910-00422 dated 25-05-2009 by  order no.- S0-ideal D-091000397 on payment of Rs. 9,12,285/- only after full payment  the vehicle  was hypothecated with SBI Jagadishpur Branch. He has made it registered from district transport office and got registration no.- 06G-4573 and received the owner book on 04-06-2009. He has start his vehicle for use of tanker but within one month the vehicle came under  trouble of  extra consumption   fuel, accordingly he inform the o.p no.-3 from 06-06-2009 to 26-02-2010 as such his vehicle was carried to his work shop for repair and taken the repair charge but the vehicle was not properly repaired from which the complainant  sustained damaged of fuel per trip for Rs. 4000/-. He wanted to know the actual defect that  why the vehicle is continuously disturbed . He was acknowledged by o.p no.-3 that in the tanker fuel system has manufacturing  defect accordingly wanted to change the fuel system on which o.p has refuses to change the system that  there was no any system. He was directed to contact  head office from where it can be noticed accordingly complainant  through email. On 13-02-2010 contacted head office, Calcutta but no response found as such having no alternative he has filed  this case.

               The Complainant has filed  the Xerox copy of   several papers such as retail  on voice dated 25-05-2009, vehicle delivery acknowledgement note dated 25-05-2009, certificate of registration of vehicle no.- 06G-4573 dated 04-06-2009, copy of vehicle manual  (service book) and email. Complain dated 13-02-2010 that he is facing problem  with the pump of vehicle since  beginning showing  detail of repair. No other papers has been filed for the complainant.

            In this case o.p.  no. 1 & 2 appeared and has  filed his W.S  dated 18-01-2011 with allegation that the complain case  is abuse of process  of law, averments made therein   are vague, baseless with malafide intention  the allegation of manufacturing defect in the fuel pump system of the vehicle without relying  on any expert report from a recognized and notified laboratory u/s- 13 (1) of C.P Act is not reliable.  The case of complainant  does not falls within  the combitof a consumer dispute the complainant has purchase the vehicle for business purposes admitted in para II  of his complaint petition as the vehicle is being used for transportation of petrol  and diesel from Baroni Refinery for his petrol pump as such vehicle has been used for commercial activities  to Generate the profit and has covered 40,141 km/-  within 9 month only and has relied on decision published in  (1995) II CPJ I (SC) in which the Hon’ble court has observed that .

            “ If any person has obtained goods  for commercial purpose with  a view to using  the said goods for carrying on  any activity of profit other than exclusively for self  employment such  person is excluded from purview of CP Act. The O.P. is relying  on relevant terms and condition of warranty of the vehicle , limitation operates serviced  book. The complainant has not provided any records to show that complainant  had regularly service his vehicle as per recommended  service schedule the warranty is limited  to 36 month from the date of sale or 3 lakh km/ which ever is earlier  subject to fulfillment of other terms and conditions the warranty does not covers  normal wear and tear of the vehicle or the part or any damage due to negligent or  in proper operation or storage . He  has further relied  on decision published in  (I) (2010) CPJ and  (1996) 4 (SCC). 704 and submitted that it is crystal clear there is no manufacturing defect or deficiency  in service on the part of o.p and the case is liable to be dismissed and had denied  the all allegations  made by the complainant  para wise except the aforesaid.

            O.P. no. 1 & 2 has filed petition dated 09-09-2010 supported with an affidavit praying there in the complainant  may be directed to submit the report of the appropriate laboratory  after thorough inspection  of the vehicle which is necessary for the justice the o.p has filed Xerox copy of list of appropriated  laboratories .

            He has also filed his brief note of argument dated 03-08-2015 with Xerox copy of decisions published in 1993 SCC (I) 397, 1993 SC ALE (4) 620, II 2009 CPJ 295 (NC), judgment of another case Laxmi engineering  works Vs PSG industrial institute,  copy of warranty policy with term and condition, copy of judgment National Commission passed in  revision petition no. 3140/2007 of dated 21-10-2009.

            On this case o.p no.3 has filed his  w.s. dated  23-02-2011 supported with an affidavit dated 23-02-2011 alleged there in that the complainant has no  valid cause of action to file this case and  is barred by principles of   estoppels, waiver, and acquisance   and has wrongly  empleaded  o.p no. 3 as a party of this case and case is suffers from   non joinder  and  his joinder  of necessary parties the o.p no.3 is proprietor cum of  manager ideal dealers pvt.  Ltd. (TATA Motors) showroom cum workshop, NH-28 Bhagawanpur chowk Muzaffarpur. AS such the allegation of Manufacturing defect cannot be attributed to o.p. no.- 3, he is service provider only he is not manufacturer nor dealer. The vehicle was regularly  brought  to the workshop of  o.p no.3 between period 06-06-2009 to 26-02-2010 the vehicle was firstly brought for first through service  on 13-07-2009 and there was no problem in the fuel enjection pump and  he was provided  free service, again it was brought on 03-09-2009 and 5-11-2009 and there was no complained found regarding the starting  trouble and leakage in fuel injection  pump as such there is no problem is vehicle  in question, the charge was only taken  for  miscellaneous work which  where not covered  under the warranty and the complainant  took return  of his vehicle on the  same day after putting  his signature with satisfaction, again it was brought on 21-11-2009 there was timing  setting in fuel ejection pump which was corrected by changing the fuel ejection pump Gasket, again   on 23-11-2009 the vehicle was delivered from the workshop,  the service was provided and allowed to continue the run for about 2000km. Again it was brought on 04-12-2009, 31-12-2009 and the complainant was sent to authorized  dealer who has remove the problem on the same day, again it was brought that fuel leakage was reported  which was rectified, again on 03-02-2010  came with same problem on the same day o.p. no.-3 send on letter to authorized  dealer to Patna regarding the complain of fuel, leakage from FIP, again the vehicle was came on 24-02-2010 and 26-02-2010 for change of engine oil and General Checkup no other complain was found. There after the complainant has filed this case on 16-03-2010. As such the involvement o.p no.-3 is totally baseless. He has no role to play in the entire matter rather he has help the complainant. The allegation of complainant  that he has  suffers damage  of Rs. 4 000/- per trip  due to defect in vehicle is not true  and is denied  and he has also relied  on decisions reported in III (2000) CPJ 13 (NC) connected with the terms of consumer  will not included the person who buy goods for resale or for any commercial purposes and on the aforesaid ground he has also prayed to dismiss the case.

            O.P. No. 3 has filed Xerox copy of Minutes  of meeting of board of director of M/S ideal dealers, job card, retail invoice, satisfaction letter signed by driver  of the vehicle dated 21/11, 23-11-2009 23-01-2010,05-02-2010, 31/12, ancillary referreal  form and decisions   of Rajsthan State Commission published in III 2003 CPJ 690.

            O.P. No. 3 has further filed his written note of argument dated 08-12-2015 mentioning the same as above only relied  on decisions published in 2008 (2) (CFC) 778 (PNH) (1996) 4 SCC 704, 1995 II CPJ I (SC) II (2012) CPJ 350 (NC) and III (2000) CPC 13 ANC.

                        Considering the fact and circumstances, allegations of the respective parties it is apparently clear that the case of complainant is based on manufacturing defect arises  in pump delivery system of his tanker for which he has suffered the alleged loss against which the ops have strongly opposes his case that the complainant  is not comes under the meaning of consumer under the CP Act because he is running his tanker for supply of fuel which is for  business purposes as well as the complainant  has not given any expert opinion by the list prescribed  under the CP Act. The complainant has not filed any warranty  paper of vehicle from which it can be rooted out that for such period manufacturing  defect of any part of the vehicle is replaceable, against which o.p no.3 has filed warranty paper in which complainant  has not been provided for any replacement of the part of his vehicle. It is also relevant to say  that the allegation of o.p. no.-3 that he has workshop of TATA Motors and have given proper service to the complainant   vehicle  and on full satisfaction having no trouble in his vehicle his driver   has taken away of his vehicle  on the same day having no any problem in the vehicle till filing of the complaint case. The complainant  has not denied the allegation that his vehicle was not used of commercial for purposes but on the averment  made by the parties it is crystal clear that the vehicle was used for commercial purposes it cannot be taken for as livelihood because he is a business man   of having petrol pump for which he is  carrying the vehicle  in question  for fuel supply, it means vehicle is used for commercial purposes.

            In this case it is open to say that  if any manufacturing  defect arises and found by the complainant  firstly it was required to examined by an expert  provide under the act and  required  to examined by an expert  which he has not done only on mere allegation that the vehicle was having manufacturing defect  in pump delivery system without any expert opinion  and when the service provider has given proper  service of all times and with  full satisfaction the complainant has taken away his vehicle having no any  problem even in pump delivery system. As such the allegation of complainant is  totally  wrong and baseless.   

 Considering the aforesaid facts of the respective parties and after  careful scrutiny we are of the opinion that the case of complainant  is not maintainable  in eye of law as well as fact.

Accordingly the case is dismissed parties bearers their own cost.