Order No. 21 dt. 20/03/2017
The case of the complainant in brief is that the complainant purchased a Hyundai Verna VGT SX crystal white car on 21.1.10 from o.p. no.3. After purchase the car created trouble and it was aggravated from 30.6.11. On observing the same the car was sent to the authorized dealer of o.p. nos.1 and 2 for repair and it was informed to the complainant that since the car was purchased in the year 2010 the same was still under warranty. The complainant was not informed though he sent letters to o.p. no.1 regarding the said defect but o.p. no.3 was not willing to attend the car for three days because of lack of clarity as to who would bear the cost of repair. The complainant subsequently sent a lawyer’s notice but no effective step was taken by o.p. no.6. The complainant became annoyed with the deficiency in service of o.ps. and the suffering of the non delivery of the car for more than two months, in spite of various repairing the car is not running properly and the complainant again sent the car to o.p. no.5 for repair and he was charged of Rs.79,942/-. The complainant sent several letters to o.ps. but no action was taken, ultimately filed this case praying for direction upon the o.ps. to rectify the inherent defects and also to pay compensation of Rs.2,50,000/- for sufferings and also for compensation of Rs.50,000/- and litigation cost of Rs.25,000/-
The o.p. nos.1, 2 and 4 contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that as the car was purchased and registered in the name of Hindustan National Glass and Industries i.e. a company registered under the Companies Act, 1956 engaged in the business of manufacturing and sale of glass containers throughout India and the car has been purchased for commercial purpose, hence the complainant is not a consumer as defined under the C.P. Act. In support of the said contention o.ps. cited several rulings in the w/v. The o.ps. raised another point that the car was purchased in the year 2010 and the case was filed after the lapse of statutory period. As such, without any petition u/s 24A the case is barred by limitation. The complainant failed to show by leading any evidence to prove that there was any manufacturing defect in the car and it is the responsibility of the complainant to prove manufacturing defect in the car by the complainant and to prove such a defect opinion of an expert is necessary. The complainant failed to disclose that he met with four accidents on 2.2.10, 30.3.10, 22.12.11 and 25.3.13 and in order to seek replacement of the car with a new one filed this case with frivolous allegations. It was also stated that by o.ps. that as per settled position of law that if a part could be replaced or a defect could be removed then replacement cannot be ordered. Considering all these aspects o.ps. prayed for dismissal of the case. It was also stated in the w/v that the complainant raised the problem of white smoke started since June 2011 i.e. after around 1 ½ years of purchase of the car and driving it for more than 48,000 kms. In view of such fact o.ps. prayed for dismissal of the case.
In spite of receipt of notices other o.ps. did not contest this case by filing w/v and as such, the case has proceeded ex parte against them.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the car was purchased for using it for commercial purpose.
- Whether the car had any defect at the time of purchase.
- Whether there was any deficiency in service on the part of o.ps.
- Whether the complainant will be entitled to get any relief as prayed for.
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the car was purchased for the user of the Director of the company, therefore it cannot be said that the car was purchased for the commercial purpose. Ld. lawyer for the complainant emphasized that immediately after the purchase of the car there was various defects and those defects were brought to the notice of o.ps. and subsequently after the repairing of the car whenever the car was used the same defects were found. Subsequently in the year 2011 white smoke was found coming out from the said vehicle for which it was taken to the garage and hefty amount was charged by the garage. In view of such facts the complainant prayed for replacement of the car as well as damage and compensation.
Ld. lawyer for the o.ps. argued that the vehicle was purchased for the commercial purpose and in support of the said contention ld. lawyer for o.ps. cited various rulings. It was also emphasized by ld. lawyer for o.ps. that the vehicle was purchased in the year 2010 and the case was filed in the year 2013 without filing of the petition u/s 24A of the C.P. Act. The case is not maintainable without filing a petition u/s 24A of C.P. Act and admittedly the complainant has not filed any petition to that effect. In view of such background of the case ld. lawyer for o.ps. prayed for dismissal of the case.
Considering the submissions of the respective parties it appears that the complainant purchased the car with the claim that the car had defects at the initial stage and for that reason he sent the car to o.p. no.6 and after repairing the car was received by a driver of the complainant on 2.8.11 and it was found that the car was not ready for handover and white smoke was coming out.
On perusal of the evidence adduced by both the parties as well as materials on record it is admitted that the complainant is a company and deals with manufacturing and selling glass products and the vehicle was purchased for the purpose of the said complainant company and since the car was not purchased for exclusively for the purpose of earning livelihood by means of self employment for the Director of the company, it is not for livelihood of the Director or personal use of the Director and the car was used only for commercial purpose and as such, we should come to the conclusion that the car was used for commercial purpose and the complainant is not a consumer. It is also relevant to mention here that the car was purchased in the year 2010 and the complainant claimed that since the date of purchase the car was found defective but the complainant did not make any effort to appoint any expert for examination of the vehicle to prove that the vehicle had the manufacturing defect. Apart from the said fact it appears that the complainant after running the vehicle for 48,000 kms. noticed that white smoke was coming out from the vehicle. If the vehicle would have the manufacturing defect the vehicle would not have run for so many kilometers. On the basis of the facts and circumstances as stated above we hold that the car was purchased for commercial purpose and the case is also barred by limitation and the complainant failed to prove that there was any manufacturing defect of the vehicle since the date of purchase. In view of the facts and circumstances as stated above we hold that the complainant will not be entitled to get any relief as prayed for. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.161/2013 is dismissed on contest against the o.p. nos.1,2 and 4 and dismissed ex parte against the other o.ps. without cost.
Supply certified copy of this order to the parties free of cost.
