Date of Filing      : 27.11.2018

                                                                                                                  Date of Disposal: 27.08.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                 .…. PRESIDENT

                 THIRU.P.MURUGAN,M.Com., ICWA(Inter),B.L.,                                    ....MEMBER-II

 

CC. No.54/2018

THIS SATURDAY, THE 27th DAY OF AUGUST 2022

 

Mr.M.Rajan, S/o.M.Munusami,

No.2/74, Saraswathi Nagar,

Sirugalathur,

Kundrathur – 600 069.                                                                   ……Complainant.

                                                                     //Vs//

 

1.Daimler India Commercial Vehicle Private Limited,

    SIPCOT Industrial Estate,

    Mattur (P.O), Oragadam Village,

    Sriperumbudur Taluk,

    Kancheepuram District.

    Tamil Nadu -602 105.

 

2.KUN Commercial Vehicles Private Limited,

    S.No.210/193 Bypass Road,

    Poonamallee, Chennai – 600 056.                                   ..........Opposite parties. 

 

Counsel for the complainant                               :   M/s.S.Ilamparithi, Advocate.

Counsel for the 1st opposite party                      :   M/s.R.Gokulraj, Advocate. 

Counsel for the 2nd opposite party                    :   M/s.V.Balakrishnan, Advocate.

                         

This complaint is coming before us on various dates and finally on 16.08.2022 in the presence of M/s.S.Ilamparithi, Advocate counsel for the complainant and M/s R.Gokulraj  Advocate counsel for the 1st opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the opposite parties in selling the vehicle with the defective engine along with a prayer to direct the opposite parties to replace the defective engine for a new one of similar description with free of cost and to pay a sum of Rs.10,00,000/- towards compensation for the mental agony caused to the complainant along with cost of the proceedings to the complainant. 

Summary of facts culminating into complaint:-

 

It was the case of the complainant that he had purchased a commercial vehicle Bharat benz 72Ke R4x2 4250 WB BSIV Day Cab Chassis Manufactured by the 1st opposite party for a total cost of Rs.14,31,573/-.  Vehicle cost was paid by the complainant after availing loan from HDFC Bank Limited.  The vehicle was delivered to the complainant on 24.05.2019 with Engine No.400923P0001086 and Chassis No. MECO 543 ABJPO26690 which was thoroughly checked and find to be good condition.  When the complainant took the vehicle to Erode for body building on the same day at Villupuram Bypass the vehicle suffered breakdown and when the complainant contacted the 2nd opposite party a mechanic was sent but he left after informing the complainant that as there was a major problem some other mechanic would come to rectify the same.  After waiting for a long time two mechanics from Vellore service centre came and replaced the Head and Base of the engine by welding process causing severe damage to the engine. The mechanic advised the complainant to bring back the vehicle after body building and when the same day taken to the 2nd opposite party on 25.06.2018 for replacing the defective engine for a new one as promised by the mechanic, the vehicle was received by the 2nd opposite party but refused to provide any receipt for the same.  On 16.07.2018 the 2nd opposite party called the complainant to take delivery of the vehicle.  When the complainant met the 2nd opposite party and asked for repair done for the vehicle and also about the replacement of the engine they denied to give any particulars and also refused to replace the engine.  The vehicle was sent for registration with late fees of Rs.9,000/- with defective engine and poor service of the 2nd opposite party.  It was submitted by the complainant that the opposite party ought to have provided the details of the nature of defect found in the engine and the details of the repair carried out by them.  Further it was submitted that when the vehicle got breakdown on the same day of purchase due to the defective engine the opposite party ought to have replaced the defective engine for new one of similar description which shall be free from any defect. Thus the present complaint was filed to replace the defective engine with compensation along with direction as follows;

To direct the opposite parties to replace the defective engine for a new one of similar description with free of cost;

 To pay a sum of Rs.10,00,000/- towards compensation for the mental agony caused to the complainant along with cost of the proceedings to the complainant. 

 Defence of the 1st opposite party:

The 1st opposite party filed written version disputing the complaint allegations contending inter alia taking preliminary objection as to the maintainability of the complaint. It was submitted by them that the complainant was not a consumer as per Section 2 (d) of the Consumer Protection Act’1986, as the complainant plies more than one vehicle which were used for commercial purposes by several drivers and not for the purpose of earning his livelihood by means of self-employment. Further it was submitted that there was no manufacturing defects in the engine and the complainant failed to provide any expert opinion or report as per Section 13 of the Consumer Protection Act, 1986 for proving manufacturing defects.  The vehicle was manufactured by the 1st opposite party after stringent quality checks and test trials and the vehicles are marketed after being approved by the Automotive Research Association of India (ARAI).  They also denied that when the vehicle got breakdown it was advised by them to bring the vehicle to the workshop to carry out in-depth technical assessment, however in the interest of the complainant the long block in engine assembly which was functional component was replaced along with second and fourth cylinder injector and the same was done considering that the vehicle was a new one and to ply immediately. Further the replacement as alleged by the complainant was not promised by them.  It was further submitted that the vehicle was plying on the road after being repaired and delivered on 16.07.2018 when the same was entrusted to the opposite party after body building was done to the vehicle on 25.06.2018.  Thus it was submitted that the vehicle was free from any manufacturing defects and that no replacement was required. Hence the opposite party sought for the dismissal of the complaint contending that there is no deficiency in service on their part.

Defence of the 2nd opposite party:-

The 2nd opposite party filed written version in which they also raised the preliminary objection as to maintainability of the complaint as the vehicle was purchased for commercial purpose.  It was submitted by them that the allegation that the welding was done during breakdown caused damage to the engine was utter false.  The vehicle was made ready on the same day after the remaining 2 injectors were replaced but it was only delay on the part of the complainant in taking delivery of the vehicle.  It was also submitted that there is no suppression of fact on job done during service of the vehicle.  Thus alleging no deficiency in service on their part, the 2nd opposite party sought for the dismissal of the complaint.

On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A10 were marked on their side.  On the side of 1st opposite party proof affidavit was filed and documents Ex.B1 and Ex.B3 were marked. As there was no representation by the 2nd opposite party after filing written version they were called absent and set exparte on 27.09.2019 for non appearance.

Point for consideration:-

Whether the complainant is a consumer and complaint is maintainable before this commission?

Whether the alleged deficiency in service by the opposite parties has been successfully proved by the complainant?

If so to what reliefs the complainant is entitled?

Point.1:

On the side of complainant the following documents were filed in support of the complaint allegations;

The Tax invoice issued by the 2nd opposite party to the complainant dated 22.05.2018 was marked as Ex.A1;

Receipts for payment issued by 2nd opposite party to the complainant was marked as Ex.A2;

Receipt issued by Sri.Amman Crane Service dated 26.05.2018 was marked as Ex.A3;

Receipt issued K.J.S.Saraswathi Engineering Works dated 26.05.2018 was marked as Ex.A4;

 Gate pass issued by the 2nd opposite party dated 16.07.2018 was marked as Ex.A5;

Receipt issued by Regional Transport Office dated 06.08.2018 was marked as Ex.A6;

Notice to the opposite parties by the complainant dated 09.08.2018 was marked as Ex.A7;

Reply by the 1st opposite party dated 30.08.2018 was marked as Ex.A8;

Reply by the 2nd opposite party dated 01.09.2018 was marked as Ex.A9;

Photos was marked as Ex.A10;

On the side of 1st opposite party the following documents were filed in support of their defence;

Invoice bearing Invoice No.PME/2017-18/0497 dated 30.12.2017 was marked as Ex.B1;

Invoice bearing Invoice No.PME/2018-19/0123 dated 22.05.2018 was marked as Ex.B2;

Approval of Automotive Research Association of India (ARAI) dated 28.04.2017 was marked as Ex.B3;

As the opposite parties has raised a doubt as to maintainability of the complaint alleging that the complainant is not a consumer hence this commission decides to determine the said issue as a preliminary point.  The 1st opposite party has alleged that the complainant had purchased the commercial vehicle only for earning profit and along with the said vehicle he had also purchased two more vehicles for business purpose.  It was the contention of the opposite parties that having purchased the commercial vehicle the complainant cannot be brought under the definition of “Consumer” as per the definition provided under the Consumer Protection Act. However this commission is of the view that the complaint is maintainable for the reason that it was not established by the opposite parties that the complainant was earning profit by running out several commercial vehicle as one purchased.  The Hon’ble Supreme Court in the decision rendered in Lakshmi Engineering Works Vs PSG Industries reported in AIR 1995 SC 1428, has held that the question as to what the is commercial purpose is a question of fact to be decided according to facts of the case and also had held that it is not the value of the goods that matter, but the purpose to which the goods bought are put to has to be considered.  It is further held that the words employed in the explanation under the definition of consumer “Uses by himself” “exclusively for the purpose of earning his livelihood” and “by means of self employment” makes clear that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. In the present case it is not the case that the complainant was running the business at a large scale earning huge profit so as to exclude him from the definition of consumer.  Though the vehicle was of commercial in nature the opposite parties failed to establish that the complainant was carrying on business on a large scale and hence this commission comes to the conclusion that though the vehicle involved is a commercial vehicle the complainant could very well be brought under the definition of consumer as he involved the said vehicle at a small scale to earn his livelihood.  Thus we answer the point accordingly in favour of the complainant holding that the complaint is maintainable.

 

 

Point No.2:

Heard the oral arguments adduced by both the parties and perused the pleadings and evidence submitted by them.

The crux of the arguments advanced by the learned counsel for the complainant is that the vehicle was purchased from the 2nd opposite party suffers with inherent manufacturing defects i.e., with defective engine.  It was submitted by him that when the vehicle was delivered by the 2nd opposite party on 24.05.2018 and when the same was taken to Erode for body building on the same day at 02.15 am in the early morning of 25.05.2018 the said vehicle got breakdown which was duly reported to the opposite party and the mechanic sent by the 1st opposite party replaced the head and base on the engine by welding process causing severe damage to the engine.  After the body building was done for the said vehicle it was taken to the opposite party as per advice to find out the defects and for replacement of the engine.  The engine was not replaced with a new one however some repairs were done which was not disclosed to the complainant.  Thus the counsel alleges deficiency in service in not replacing the defective engine and also in not disclosing what repair was done to the vehicle.  

On the other hand the 1st opposite party contended that there was no sufficient proof to show that the vehicle suffered with manufacturing defects as no expert opinion was filed by the complainant with respect of the same by way of additional written version statement.  The complainant has submitted that it is the duty of the commission to send the defective product to the appropriate laboratory to find out the defects and that in the present case the same is not necessary as the 2nd opposite party had admitted the breakdown of the vehicle.  The said contention of the complainant could not be accepted for the reason that neither the 2nd opposite party nor the 1st opposite party admitted that the engine of the vehicle is a defective one and suffers with inherent manufacturing defects.  Further it is their case that the vehicle has been properly serviced and delivered to the complainant and there arises no necessity to replace the engine as it was not defective. Further it is the case of the complainant that due to non replacement of engine he could not ply the same however, after the vehicle was serviced by the opposite party the complainant was running the vehicle was the presumption arrived by this commission.  The contention of the complaint that the 2nd opposite party find out the repair was a baseless statement.  Thus this commission is of the view that no deficiency in service could be imposed upon the opposite parties for non replacement of the engine and for non-disclosing the repair done by them.  Thus we answer the point accordingly in favour of the opposite parties and as against the complainant.

Point No.3:

As we have held above that no deficiency in service has been proved by the complainant successfully against the opposite parties he is not entitled any reliefs from the opposite parties. Thus we answer the point accordingly.

In the result, the complaint is dismissed.  No order as to cost. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 27th day of August 2022.

 

 

    Sd/-                                                 Sd/-                                                            Sd/-

MEMBER-II                                    MEMBER -I                                            PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 22.05.2018 Tax invoice issued by the 2nd opposite party. Xerox

Ex.A2 .............. Receipt for payment issued by 2nd opposite party to the complainant. Xerox

Ex.A3 26.05.2018 Receipt issued by Sri.Amman Crane Services. Xerox

Ex.A4 26.05.2018 Receipts issued by K.J.S Saraswathi Engineering works. Xerox

Ex.A5 16.07.2018 Gate Pass issued by 2nd opposit party. Xerox

Ex.A6 06.08.2018 Receipt issued by Regional Transport Office. Xerox

Ex.A7 09.08.2018 Notice to the opposite parties by the complainant. Xerox

Ex.A8 30.08.2018 Reply by the 1st opposite party. Xerox

Ex.A9 01.09.2018 Reply by the 2nd opposite party. Xerox

Ex.A10 ............... Photos. Xerox

 

Document filed by the 1st opposite party:

 

Ex.B1 30.12.2017 Invoice bearing Invoice No.PME/2017-18/0497. Xerox

Ex.B2 22.05.2018 Invoice bearing Invoice No.PME/2018-19/0123. Xerox

Ex.B3 28.04.2017 Approval of Automotive Research Association of India (ARAI). Xerox

 

 

 

 Sd/-                                                           Sd/-                                                    Sd/-

MEMBER-II                                          MEMBER-I                                       PRESIDENT