D.o.F: 06/10/06 D.o.O:18/10/09IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.118/06 Dated this, the 18th day of October 2009. PRESENT: SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER M.A.Ameer, PWD Contractor, S/o M.A.Aboobacker, : Complainant Munambath House, Chengala, Kasaragod. 1.General Manager, M/s Tata Engineering & Locomotive Co.Ltd, Mumbai , Regd. Office at Bombay House, 24 Homimody street, Mumbai 400001. : Opposite parties 2.T. Mohammed Ali, Deputy Manager, Service Shakthi Automobiles, M.G.Road,Anangoor,Kasaragod. ORDER SMT.P.RAMADEVI : MEMBER The complaint in brief as follows: The complainant is a PWD Contractor having A class registration in Kerala. and Karnataka states . He used to purchase motor vehicles of various kinds for his contract works. The complainant usually opted to purchase the vehicles manufactured by Oppoiste party No.1 with a bonafide and honest belief that they would render services whenever the same is required The vehicle involved in the complaint is a Tipper lorry bearing Reg. No.KL 9E/ 6566 manufactured by Ist opposite party and the same was purchased 7 years back. 2nd opposite party is the authorized service center. During December 2005 the complainant entrusted the vehicle with 2nd opposite party for doing its Ist engine assembly works. Thus undertaken the work as job No. 825. During the engine assembly work 2nd opposite party changed certain items and the complainant paid Rs.52,845/- for the work. As per the instructions of 2nd opposite party the complainant changed the engine oil on 22/1/2006. According to the complainant since the engine work was not done by 2nd opposite party properly the vehicle started to consume more oil than what is consumed usually and also the engine lost its pulling capacity. The complainant again entrusted the vehicle with 2nd opposite party for further work. For that the opposite party changed Rs.19,666/-. According to the complainant the second engine work was necessitated due to the negligent and faulty works of 2nd opposite party . He further states that 2nd opposite party informed the complainant that some of the parts manufactured by 1st opposite party were faulty. Hence the complaint alleging deficiency in service on the part of the opposite parties for necessary reliefs. 2. The opposite parties contended that the complaint is not maintainable before this forum since the complainant is not a consumer as defined in the consumer Protection Act. According to the opposite parties the vehicle involved in the complaint is a Tipper lorry that is used for commercial purpose . Secondly the opposite parties contended that the complaint is barred by limitation. The other contention is that the complainant used the vehicle in a careless manner and the defect is caused due to the said use. So deserves a dismissal. 3. After considering the facts the following issues were raised for considerations. 1. Whether the complaint is maintainable before this Forum or not? 2. Whether the complaint is barred by limitation? 3. Whether there is any deficiency in service on the part of the opposite parties? 4. If so, what is the order as to costs and compensation. 4. The evidence in this case consists of the evidence of PW1 the complainant and Exts.A1 to A22 marked. 2nd opposite party is examined as DW1 and Ext.B1 marked. 5. Here the Ist issue is regarding the maintainability of the complaint before the Forum. According to the opposite parties the complainant had purchased the Tata Tipper Lorry for commercial purpose and engages period drivers to operate the same and hence the complainant could not be treated as a consumer as per Sec.2(1)(d) of the C.P.Act. The Hon’ble NCDRC in the case of Harsolia Motors vs. National Insurance Co.Ltd I 2005 CPJ 27(NC) has drawn a distinction between commercial purpose and commercial activities and defined commercial purpose as “ Goods purchased or services hired should be and in any activity directly intended to generate the profit. Profit is the main aim of commercial purpose. But in a case where goods purchased or hired in an activity which is not directly intended to generate profit it would not be a commercial purpose. 6. Here the complainant used the tipper lorry for his contract works. But he is not getting profit directly by hiring the Tipper lorry . He engaged drivers to operate the vehicle. But he is not making any profit running the vehicle directly. Hence it will not come under the distinction of commercial purpose. Hence the complainant is a consumer as per the consumer Protection Act and the complaint is maintainable before this Forum and the Ist issue is answered accordingly. 7. The second issue is whether the complaint is barred by limitation or not? Admittedly, the vehicle was purchased 7 years back. But the repair was on 8th December 2005 and the complainant alleging deficiency in service against opposite party for the work he has done on 8/12/2005. The complaint is filed on 4/10/2006 ie, within a period of two years. Hence the complaint is not barred by limitation. 8. The specific case of the complainant is that the engine assembly work of his Tipper lorry was done properly by 2nd opposite party. Admittedly, he approached Ist opposite party for the engine work after the warranty period. Hence he made the payment of repair charges. According to the complainant due to the negligent work of Ist opposite party, the vehicle started to consume more oil than what is required. Moreover after the repair the vehicle lost its sufficient pulling capacity. The Ist opposite party has not done the work properly. The complainant has again put the vehicle for repair and he sustained loss. His contention against Ist opposite party, the manufacturer is that the spare parts and for the engine work was purchased by 2nd opposite party from Ist opposite party. Hence he is also liable. Here, the engine work done by 2nd opposite party is admitted. But there is no evidence before the Forum that the work done by 2nd opposite party is defective. No expert evidence is produced or no steps had been taken by the complainant to get an expert opinion except the statement made in the complaint . 9. Ist opposite party is arrayed as party since the spare parts for the repair work was purchased by 2nd opposite party from Ist opposite party. Here also there is no evidence to show that the spare part were supplied by Ist opposite party. 2nd opposite party has no such case that the spare parts purchased from Ist opposite party. After considering all the above facts the Forum is of the opinion that there is no deficiency in service on the part of the opposite parties. Hence we are not in a position to allow the complaint. Hence the complaint is dismissed. No order as to costs. Sd/ Sd/ MEMBER PRESIDENT Exts: A1 to A18- cash bills A19- 31/5/06- copy of lawyer notice A20&A21- Postal receipt and A.D.card A22- 21-6-06- reply notice Pw1-M.A.Ameer-complainant DW1-P.C.Raghunatha- works manager of OP.2 Sd/ Sd/ MEMBER PRESIDENT eva/ /Forwarded by Order/ SENIOR SUPERINTENDENT
......................K.T.Sidhiq
......................P.Ramadevi | | 
