Haryana

StateCommission

CC/55/2014

Shree Energy Devlopers - Complainant(s)

Versus

Denlsche Molern Pvt Ltd - Opp.Party(s)

18 May 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint No.55 of 2014

Date of the Institution: 29.05.2014

Date of Decision: 18.05.2016

 

M/s Shree Energy Developers Pvt. Ltd., 419, Sector 17, Faridabad 121002, through its Director/Proprietor K.K.Jain, through Sh. Tej Ram S/oSh.Chuttan, r/o H.NO.NBC-1403, Gali No.3, New Baselwa Colony, Faridabad, Haryana as being authorized as special power of attorney holder.

…..Complainant

Versus

 

1.      M/s Deutsche Motoren Private Limited, H-5/B-1, Mohan Cooperative Industrial Estate, Mathura road, New Delhi-110044, through its Directors/Principal Officers.

2.      M/s BMW India Private Limited, Regd. Office: DLF cyber City Phase-II, Building NO.8, Tower B, 7^th Floor, Gurgaon 122002 (Haryana) through its Directors/Principal Officers.

                                                                             .….Opposite parties

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.Ravi Malik, Advocate counsel for the complainant.

                   Mr. Deepak Jain, Advocate counsel for the opposite party No.1.

                   Mr.Ashish Rawal, Advocate counsel for the opposite party No.2.

 

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

          It was alleged by complainant that car Model MBW-x6x Drivfe 30 d  bearing registration No. HR-51AS-8100 was purchased from opposite party (O.P.) No.2. The vehicle was having some problem and  ACC fitting was got done on 30.06.2012 and right front cut tyre was replaced on 09.08.2012 and then on 12.09.2012.  The brake service was got done by O.Ps. on 04.10.2012. The problem was also in electrical mal-functioning and engine vibration. The car started giving problem of noise in front and rear suspension.  It also started showing reduced power.  There was  fault in brake system.  The car was got serviced on 14.02.2013 and 28.02.2013 and was O.K. for sometime, but, there were problem of engine reduced power fault and AC flow. It was again serviced by O.Ps. on 06.05.2013. The car started giving problem of all doors noise at rough road and the rear boot not working properly. The complainant purchased the said vehicle for Rs.56,87,126.81/-.  The complainant requested the O.ps. to replace the vehicle with new one, but, they did not listen. Legal notice was served them on 31.12.2013, but, they did not reply. The complainant suffered huge loss in his business  So they be directed to refund the vehicle’s amount alongwith Rs. One lac for mental harassment and losses.

2.      O.P.No.1 and 2 filed separate reply.   O.P.No.1 alleged that BMW is an international branded car having high repute in not only India but all over the world.  All the replacements were done. Complainant used vehicle in a very rash and negligent manner.
The problem occurred in the vehicle due to mishandling. All the problems were checked and rectified to the satisfaction of the complainant on number of occasions. The minor defects were rectified by them on  06.05.2013, 20.05.2013 and 27.05.2013 and vehicle was handed over to it.  On 07.06.2013 the vehicle was again brought in accidental condition which was rectified. The vehicle was again brought for minor problems on 17.09.2013, 03.10.2013 and 11.10.2013, but, problems were rectified.  Thus the complainant is not entitled for Rs.56,87,126.81/- (value of vehicle) and Rs.One lac for harassment.  Objections about  cause of action, false and frivolous complaint, abuse of process of law etc. were also raised and requested to dismiss the complaint.

3.      In addition thereto O.P.No.2 alleged that there was no contract in between it and complainant, so he is not a consumer. Relationship in between it and O.P.No.1 was on principal to principal basis.  All four alloys and tyres  were replaced for improving the aesthetic looks of the vehicle. The right hand side front was reported with cut, which was a user induced defect, the same was replaced under insurance free of cost.  On 10.09.2012 at mileage 9040 Kms damage was caused to both the left tyres due to rash and negligent driving of the vehicle and same was replaced under insurance.  Problems in brakes is denied as the vehicle had visited the workshop for service of rear brakes and same was done. On multiple occasions and within a period of two months the vehicle was brought to the workshop of O.P.No.1 for accidental repairs i.e. on 02.11.2012, 03.12.2012 and 31.12.2012.  With regard to problems of doors making noise, it was checked by the technician and no fault was found.  The vehicle was  driven over 52,000 KMs without any breakdown. 

4.      Arguments heard.  File perused.

5.        As per evidence available on file, it is clear that the vehicle was purchased in the name of company and was being used by the Manager Engineer and another officers  for the works of company. The above said fact is also clear from the statement of Sh.Tej Ram peon, witness of complainant.  It shows that the vehicle was not purchased  for personal use, but, for  M/s Shree Energy Developers which is a business concern. Therefore, before proceeding further it has to be seen whether complaint could be entertained or not as vehicle was purchased for commercial purpose. If any vehicle/machinery is purchased for commercial purposes, after the amendment of section 2(1) (d)  of the Act, then the purchaser  cannot be considered as a consumer.  This point was dealt with by Hon’ble National Commission in General Motors India Pvt. Ltd. Vs. G.S.Fertilizers (P) Ltd.,  and India Automobiles (1960) Ltd. Vs. G.S.Fertilizers, decided on 07.02.2013 in first appeal No.723 of 2006 and 736 of 2006.  Relevant portion of Para No.9  of  judgement i.e. India Automobiles Vs. G.S.Fertifilizers is reproduced as under:-

“We note that in his complaint before the State Commission the Respondent-complainant had clearly stated that the vehicle was purchased for the use of its Managing Director.  We agree with appellants’ contention that this clearly amounts to its purchase for a ‘commercial purpose’ since the Managing director of a private limited company would obviously not use this vehicle for self-employment to earn his livelihood but for ‘commercial purposes’ as a perk of his office.”

6.      After the opinion of Hon’ble National commission in the aforesaid case laws, it is clear that if anyone has purchased vehicle for commercial purpose such person cannot claim himself to be consumer.  In the present case vehicle was purchased in the name of Company and was to be used for the business of company.  It is no where alleged by complainant that this vehicle was purchased for earning livelihood by way of self-employment. When complainant has failed to prove this fact it cannot claim it to be consumer.  When the complainant is not a consumer the complaint is not maintainable before this Commission.  When this commission is not having jurisdiction to adjudicate upon this matter it is not supposed to go into the merits of the case because judgement without jurisdiction amounts to nullity as opined by Hon’ble National Commission expressed in Revision Petition No.317 of 1994 titled as Haryana Urban Development Authority Vs. Vipan Kumar Kohli decided on 19.01.1995.  Resultantly complaint fails and the same is hereby dismissed.

 

May 18th, 2016        Urvashi Agnihotri                           R.K.Bishnoi,                                                                       Member                                             Judicial Member                                                     Addl. Bench                                     Addl.Bench             

S.K.