IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 29th day of February, 2024
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No.202/2019 (Filed on 18/11/2019)
Complainant : Guidance Public School ,
Thouheed Nagar,
Nadackal,
Poonjar P.O, Erattupetta,
Kottayam - 686 121
Represented by its Manager,
P.A. Hashim,
(By Advs: Sooraj.M.Kartha &
Jude Sebastian Joseph)
Vs
Opposite parties : 1. Eicher Motors,
Represented by its Authorised Officer,
Confluence Business Centre,
16th Floor, Building 9A,
DLF Cyber City, Phase III,
Gurgaon – 122 002.
2. AVG Vehicles Sales & Services,
Represented by its CEO,
Medical College Road,
Gandhinagar P.O,
Kottayam – 696 008.
3. The Works Manager,
AVG Vehicles Sales & Services,
Medical College Road,
Gandhinagar P.O,
Kottayam – 696 008.
(All by Advs: Sony Sebastian &
Eldho Jacob Philip)
O R D E R
Sri.Manulal V.S, President
The complaint is filed under Section 12 of the Consumer Protection Act, 1986.
Case of the complainant is as follows:
The complainant is Guidance Public School which comes under the non-profitable charitable trust Al Huda Charitable Trust, Errattupetta. The Trust is functioning with the objective of organising activities for educational social, cultural and religious development of the whole community by establishing schools, orphanages, shelter homes for destitute, Arabic colleges, hostels, training centres, industrial units etc. The complainant has purchased a new school bus, Eicher 10.75 E SRL from the second opposite party on 21-05-2019 which was manufactured by the first opposite party in the month of January 2019. The complainant has purchased the vehicle for the conveyance of the pupils of school and not purchased for commercial purpose. On using the vehicle on 24-05-2019 the driver informed the complainant that the vehicle caused certain serious complaints with functioning of driver side door and the body of the bus is tilting towards the right-hand side while driving and with regard to the leakage of water through front wind shield glass. All these issues were informed to the second and third opposite parties on time and the Mechanics of the second and third opposite parties inspected the vehicle and ascertained the complaint by themselves. On close examination of the vehicle it is came to the knowledge of the complainant that the make year in the front windshield glass of the vehicle is marked as 2018 which is supposedly to be indicated that 2018 as the year of manufacture of the vehicle and it is carelessly fitted resulting in leakage of water. Further on close examination it was found that there is difference in the shades of paint on the body of the vehicle. It is alleged in the complaint that on a thorough examination the complainant understood that the vehicle had met with some major accidents before it has been delivered to the complainant, representing it as a brand-new vehicle. The complainant has intimated these issues to the second opposite party by a written intimation dated 14th October, 2019 for which they give a reply on 18-10-2019 informing him that the core team will visit the school to inspect and rectify the issues with the school bus. On 22-10-2019 the core mechanic team of the opposite parties visited the school and inspected the vehicle and identified excess gap in the driver’s door, water leak inside the vehicle through front windshield, difference in paint shade at right side, windshield strap was not proper at the bottom, registration certificate not yet received, sticker mark on the rear windshield and tilt of the body to the right side. This was reduced to writing and was signed by Thomas Kutty P.J and Shibu K.V who are the Assistant Works Manager and Warranty in- charge of the second opposite party. The complainant on the next day received a letter from the 3rd opposite party dated 23-10-2019 intimating the complainant that the second and third opposite parties acknowledged all these issues except the issue regarding non-receipt of RC book. The letter also requested the complainant to bring the bus on 24th October and promised to deliver the same by the 28th October 2019. They also intimated to offer the complainant 50% reduction in service cost on the next service of the vehicle as a matter of goodwill. It is alleged in the complaint that the second and third opposite parties executed unfair trade practice by delivering a vehicle involved in an accident by misrepresenting it as a brand new one and performed inadequacy and inefficiency in the quality of service by not replacing the vehicle, which caused much mental agony, injury, loss and hardships for which the complainant is liable to be compensated. Hence this complaint is filed by the complainant praying for an order to provide a brand-new vehicle to the complainant which was initially booked by the complainant or in the alternative to refund Rs.16,50,000/- to the complainant. It is further prayed to direct the opposite party to bear registration, insurance and tax expenses of the new bus and to pay a compensation of Rs.2,00,000/- as the cost of mental agony and pain.
Upon notice from this Commission opposite parties appeared before the Commission and filed separate versions.
The first opposite party filed version contending as follows:
The school bus is used for commercial purpose and the complainant would not come under the purview of Consumer Protection under Section 2(1)(d) (i) of the Consumer Protection Act 1986. It is submitted in the version that it is understood from the letter dated 14-10-2019 issued on behalf of the complainant that the said school is established and managed by a charitable trust which cannot file a consumer complaint. Hence the complaint is not maintainable. No allegations of deficiency in service or unfair trade practice levelled against first opposite party for any manufacturing defect in the vehicle of the complainant. The second opposite party who is an authorised dealer of the first opposite party had ordered for an Eicher 10.75 E bus BS4 from the first opposite party for the sale purpose which was invoiced by the first opposite party on 31-01-2019 and delivered to the second and third opposite parties on 8-02-2019. Thereafter on 30-05-2019 the representatives of the complainant took the delivery of the vehicle from the second and third opposite parties after verifying and satisfying themselves with the vehicle. After that the vehicle of the complainant was brought to the second and third opposite parties on two or three occasions alleging minor complaints arising out of usage of the vehicle and which were cleared during the routine service of the vehicle like driver and passenger door setting not proper, driving lamp switch not glowing, dashboard light issue, front wheel heating and vehicles slightly tilting to the right hand side and all these minor complaints were duly attended to. Regarding the complaint of the vehicle tilting to the right-hand side which was reported to the second and third opposite parties on 21-09-2019 the second and third opposite parties duly inspected the vehicle and forwarded their report to the first opposite party for attending the same under the warranty. However the complainant did not care to take the vehicle to the 2nd and 3rd opposite parties to attend the same under warranty. Thereafter the complainant issued a letter dated 14-10-2019 to the third opposite party making some wild and baseless allegations and the second opposite party’s service personal met with the complainant regarding the allegations. The complaints raised by the complainant were made to be noted down by the service personnel and the third opposite party on 23-10-2019 requested the complainant to send the vehicle to their service centre on 24-10-2019 to attend the alleged complaints and as a gesture of goodwill even offered 50% discount on the next service of the vehicle. However the complainant without taking the vehicle to the third opposite party for attending to the said minor complaints had filed this complaint raising false and baseless allegations. The vehicle of the complainant was subsequently after filing of the complaint brought to the third opposite party on 21-12-2019 wherein none of the complaints alleged by the complainant have even been raised. The complaints alleged by the complainant which includes water leakage through the rubber beading of the windshield glass, windshield weather strip and door setting are only minor issues caused during the usage of the vehicle and which can be corrected during the general service of the vehicle, but the same could not be attended to as the complainant did not bring the vehicle to the second and third opposite parties. The complaint regarding minor tilting of the vehicle towards right hand side has also been taken up under warranty and the same can also be duly corrected without any issue on the complainant bring his vehicle to the second and third opposite parties. The month and year of manufacture of the vehicle of the complainant is January 2019. It is only natural and common knowledge that many of the individual parts used for assembling the vehicle would have been manufactured sometime in 2018. There would not be any differences in shades of paints at the time of delivery as alleged by the complainant. Had such a complaint existed it is unbelievable to content that they would have taken delivery of such a vehicle from the 2nd and 3rd opposite parties. Such a baseless complaint was made only by letter dated 14-10-2019. The first opposite party has no role to play if the registration certificate has not been received by the complainant from the RTO office. There has not been any unfair trade practice or misrepresentation or any inadequacy or inefficiency in the quality of service on the part of the opposite parties.
Second and third opposite parties filed a joint version contending as follows:
The school bus is used for commercial purposes, and, consequently, the complainant does not fall within the scope of consumer, as defined in Section 2(1)(d)(i) of the Consumer Protection Act, 1986. This assertion is based on information from the letter dated 14-10-2019, issued on behalf of the complainant, which indicates that the school is established and managed by a charitable trust. As charitable trusts are ineligible to file consumer complaints, the complaint is not maintainable. On 30-05-2019, the complainant’s representatives took delivery of the vehicle from the second and third opposite parties, thoroughly inspecting and satisfying themselves with its condition. Subsequently, the vehicle was brought to the attention of the second and third opposite parties on two or three occasions, citing minor issues arising from usage. These concerns, including improper door settings, non-functional driving lamp switches, dashboard light problems, front wheel heating, and vehicle slight tilt to the right, were all addressed during routine servicing. The complaint about the vehicle tilting to the right, reported on 21-09-2019, prompted a thorough inspection by the second and third opposite parties. The findings were duly forwarded to the first opposite party for warranty coverage. However, despite the opportunity to rectify the issue under warranty, the complainant failed to bring the vehicle to the second and third opposite parties. Instead, on 14-10-2019, the complainant issued a letter to the third opposite party, making unsubstantiated and baseless allegations. In response, the second opposite party engaged their service personnel to address the complainant’s concerns on 23-10-2019. The opposite parties, demonstrating goodwill, informed the complainant to send the vehicle to their service centre on 24-10-2019, offering a 50% discount on the next service. However, the complainant chose not to avail themselves of this opportunity and proceeded to file this complaint. The vehicle was eventually brought to the third opposite party on 21-12-2019, post the filing of the complaint. Interestingly, none of the previously raised complaints were observed during this visit. The complaints, about issues like water leakage through the rubber beading, windshield glass, windshield weather strip and door settings, are considered minor and could have been rectified during the general servicing of the vehicle. However, due to the complainant’s failure to bring the vehicle to the second and third opposite parties, these minor issues remained unattended. The complaint regarding the minor tilting of the vehicle to the right hand side has been acknowledged under warranty, and the same can be rectified without any hindrance if the complainant brings the vehicle to the second and third opposite parties.
The complainant’s vehicle was manufactured in January 2019, and it is common knowledge that various components used in the assembly process might have been produced in 2018. The claim of discrepancies in paint shades upon delivery is baseless. It is unbelievable that such a complaint would have been overlooked at the time of receiving the vehicle from the 2nd and 3rd opposite parties, especially given its baseless nature, originating solely from the letter dated 14-10-2019. The first opposite party bears no responsibility if the complainant has not received registration certificates from the RTO office. There is no unfair trade practice, misrepresentation, or any shortcomings in the quality of service provided by the opposite parties.
Evidence of this case consists of deposition of PW1, PW2 and DW1. Exhibits A1 to A8 were marked from the side of the complainant and Exhibits B1 to B3 were marked from the side of the opposite parties. Expert Commission report is marked as Exhibit C1.
On evaluation of complaint, version and evidence on record we would like to consider the following points ;
(1)Whether the complaint is maintainable?
(2) Whether the complainant has succeeded to prove deficiency in service or unfair trade practice on the part of the opposite parties?
(3) If so, what are the reliefs and costs ?.
POINTS :-
The specific case of the complainant is that the complainant who is a school which comes under the non-profitable charitable trust Al Huda Charitable Trust purchased a school bus with model name Eicher 10.75 E SRL from the second and third opposite parties vide Exhibit A4 tax invoice which suffered from many defects including tilting of the bus to right side, there is differences in shades of paint on the body, the same had met with a major accident before it has been delivered to the complainant and the opposite parties had sold the bus by misrepresenting it as a new one. It is proved by Exhibit A4 that the complainant had paid Rs.15,84,060/- to the second and third opposite parties being the price of the school bus.
The complaint was resisted by the opposite parties that the complaint is not maintainable on the ground that a trust is not a consumer as defined under the Consumer Protection Act and the purpose of the purchase of the bus was for a commercial purpose. On going through the complaint we can see the pleading was that the complainant is a school which comes under the non-profitable charitable trust Al Huda Charitable Trust. Exhibit A1 is the resolution passed by the Board of Trustees of Al Huda Charitable Trust.
On going through Exhibit A1 we can see that the board of trustees which is managing the affairs of the Guidance Public School jointly resolved to appoint Sri. P.A Hashim as the Manager of the Guidance Public School. This complaint is filed by P.A Hashim in representative capacity as the Manager of the Guidance Public School. Therefore it is evident that the Guidance Public School is owned and managed by Al Huda Charitable Trust.
The opposite parties relied on judgement of the Honourable Supreme Court in Prathibha Pratisthan and Ors Vs. Manager, Canara Bank and others which is reported in 2017 IV CPJ 7 wherein it is held that “a trust is not a person and therefore a consumer. Consequently it cannot be a complainant and cannot file a consumer dispute under the provisions of the act”. They further relied on the decisions of Honourable National Commission in Bhagavathi Public School Vs. Edu. Smart Service Private Limited and another which is reported in 2019 (1) CPJ 168 and Smt. Tara Bai Desai Charitable Opthalmic Trust Hospital Vs. Supreme Elevators India Private Limited and others and which is reported in 2019 (II) CPJ 240 where in it was held that “a complaint filed by a trust is not maintainable”. Even though the school is governed by the Al Huda Charitable Trust, the case on hand is filed by the Guidance Public School which is a separate entity. Admittedly the disputed school bus is purchased by the Manager of the Guidance Public School and not by the AL Huda charitable trust. Merely the reason that one of the directors of the charitable trust is the manager of the guidance public school would not infer that the disputed bus was purchased by the aforesaid charitable trust. Therefore we are not inclined to accept the contention of the opposite party that the complainant does not come under the purview of the consumer as defined in Consumer Protection Act 1986.
Another ground argued by the opposite parties is that the bus was purchased by the school for a commercial purpose. Admittedly the bus was purchased and is using for the purpose of conveyance of the students of the school. It was argued by the opposite parties that for that purpose the complainant has levied transportation charges from the students and they have engaged drivers for operating the same. The Honourable Supreme Court in Lilavathi Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers and others which was reported in 2020 (2) SCC 265 has held as under
“7. To summarize from the above discussion, though a straight-jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial purpose’:
(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose’ is understood to include manufacturing/industrial activity or business-to- business transactions between commercial entities.
(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity.
(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.
(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self-employment’ need not be looked into. At this juncture we are of the opinion that it is highly necessary to look into the income and expenditure account for the year 2019, 2020 and 2021 which is produced by the complainant before this Commission.
On going through such a statement we can see that in the year 2019 the complainant collected Rs.19,66,215/- as the bus fee and in the year 2020 they have collected Rs.19,12,395/- and in the year 2021 they have collected Rs.1,26,160/- in the head of the bus fee. But the complainant has not produced any evidence as to for which the money collected as bus fare was spent on. Complainant has not disclosed before this Commission how the balance amount was used after vehicle maintenance expenses.
Section 2(1)(d) of the Consumer Protection Act 1986 - It has been clarified that the term commercial purpose does not include use by a consumer of good bought and used by him exclusively for the purpose of earning his livelihood by means of self employment.
The complainant having purchased the school bus for its activity of generating profit by means of conveyance of the students by the bus, it cannot be said that the complainant is a consumer within the meaning of the Consumer Protection Act, 1986. The opposite parties had taken a categorical objection that the school bus was purchased for being used for conveyance of the students by collecting conveyance charges from the students. The complainant has not denied the said contention of the opposite parties and as such it has rendered itself fall within the mischief of commercial purpose as defined in 2(1)(d) of the Consumer Protection Act, Therefore the first point for the determination is answered in negative that the complainant is a consumer. Thus for the said reason all the other points for determination fails answering that the complaint is not maintainable as the complainant failed to prove that he is a consumer as per the section 2(1)(d) of the Consumer Production Act 1986. Hence the complaint is dismissed as not maintainable.
Pronounced in the open Commission on this the 29th day of February, 2024
Sri.Manulal V.S, President Sd/-
Smt.Bindhu.R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
APPENDIX :
Witnesses from the side of the complainant :-
PW1 - P.A. Hashim
PW2 - Arun Thomas George
Witnessed form the side of opposite parites :-
DW1 - John Thomas
Exhibits from the side of the Complainant :
A1 - Copy of resolution passed by the Board of Trustees of
Al-Huda Charitable Trust
A2 - Copy of Sale Certificate dated 21/05/2019 issued by the
2nd opposite party
A3 - Copy of Insurance Policy dated 21/05/2019
A4 - Copy of Tax Invoice dated 22/05/2019 issued by
the 2nd opposite party
A5 - Copy of letter dated 14/10/2019 issued by the complainant
to the 2nd opposite party
A6 - Copy of reply letter dated 18/10/2019 of 2nd opposite party
A7 - Copy of statement showing 7 complaints noted in the
disputed vehicle signed by the Asst. Works Manager and
Warranty in charge of the 2nd opposite party
A8 - Copy of letter dated 23/10/2019 issued by the 3rd opposite
party
Exhibits from the side of Opposite parties :
B1 - Copy of Photograph and CD of the vehicle
B2 - Copy of Job Cards(7 Nos) of the complainant’s
vehicle for the period from 13/07/2019 to 27/05/2022
B3 - Copy of Vehicle Delivery Receipt dated 30/05/2019
