Haryana

Ambala

CC/190/2010

M/S S.S ASSOCIATES LTD - Complainant(s)

Versus

JCB INDIA LTD - Opp.Party(s)

NAVNEET GUPTA

01 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

     Complaint Case No.: 190 of 2010

      Date of Institution    : 19.05.2010

      Date of Decision  :     01.04.2015

 

M/s S.S. Associates Engineers & Contractors through its partner Sh. Sandeep Bansal 8986/5, Naya Bans, Ambala City.

……….Complainant

Versus

 

1.       JCB India Ltd. through its authorized signatory, Head Office at 23/7, Mathura Road, Ballabgarh-121004 ( Haryana).

 

2.       Krishna Automobiles through its Partner/Prop. Authorized Dealer of JCB Ambala –Nahan Road Ward No.6, Naraingarh, District Ambala.

                                                                                      ……Opposite Parties.

Complaint under Section 12 of the  Consumer Protection Act.

 

CORAM:    SH. A.K. SARDANA, PRESIDENT.

                   SH. S.C. SHARMA, MEMBER.

 

Present:       Sh. Navneet Gupta, Adv. counsel for complainant.

                   Sh. Vipul Singh, Adv. counsel for OP No.1.

                   Sh. Rajinder Saini, representative for OP No.2.          

ORDER

1.                The present complaint under section 12 of the Consumer Protection Act, 1986 (hereinafter in short called as the ‘Act’) has been filed by the complainant alleging therein that he is running business of contractorship under the name & style of M/s S.S. Associates Engineers & Contractors at Ambala City for earning his livelihood being one of the partner of the firm and he purchased a new JCB Machine in the name of complainant firm vide invoice No.6910000745 dated 28.04.2009 bearing Chasis No.1374238 & Engine No.4H2263/0921672 for a sum of Rs.19,15,001.12p.  As per warranty certificate issued by OP company,  the manufacturer undertakes to make good by repair or replacement by a similar part free of charge in case any defect occurs in the vehicle  within the warranty period of 12 months/2000 hrs. whichever occurs first from the date of sale.  It has been further alleged that  due to poor workmanship of OP No.1, defect of front excel, pushes bucket & pins etc. occurred in the said JCB on 04.01.2010. So, the complainant brought the said vehicle to the OP No.2 being authorized service centre of OP No.1 where OP’s mechanic told that it is a manufacturing defect and assured to remove the said defect to their best but for that certain parts which are to be replaced in JCB,  the complainant has to bear expenses and  labour charges also.  At this, the complainant surprised because the OP No.2 neglected the said warranty certificate of the OP-company and stressed the complainant to bear the expenses of the parts due to be replaced and labour charges etc.  though  the vehicle was in the warranty period of 12 months from the date of purchase.  As such, OP No.2 charged a sum of Rs.18585/- for the parts replaced and Rs.1500/- as labour charges totaling Rs.20,085/- vide bills No.6983,6984 & 541 dated 06.01.2010 which amounts to unfair trade practice and gross deficiency in service on the part of the Ops. The complainant has further submitted that he got served a legal notice to the Ops for refund of the amount charged by  them which was duly received  and replied by the Ops but of no use.  Hence, having no alternative, complainant preferred the present complaint seeking relief as mentioned in the prayer para.

2.                Upon notice, OP No.1 appeared through counsel and filed written statement raising preliminary objections qua non-maintainability of the complaint as the complainant does not come within the definition of consumer since, the machine in question was being plied and operated by the person other than the complainant for commercial purposes and the complainant firm i.e. M/s S.S. Associates has also purchased additional JCB Machines over the years, as per details given as under, to run their business on commercial scale and hence the complainant, being partner of this firm, is running the machine  for commercial purposes and not using the machine by himself for earning his livelihood by means of self employment.  The details of the other machines purchased by the complainant as under:-

Sr.No.         Machine Chasis No.                Month & Year of Purchase

1.                1028014                                  Oct. 2003

2.                1030983                                  June 2004

3.                1246687                                  May 2006

4.                1246688                                  May 2006

5.                1382614                                  Dec. 2009

                  

                    Objections qua  jurisdiction and cause of action have also been raised by the answering OP. On merits, it has been urged that the complainant has himself admitted that he is running the business of contractorship under the name of M/s S.S.  Associates Engineers & Contractors which shows that he is earning profits by doing the commercial activities and is not a consumer within the purview of Consumer Protection  Act.  It has been further contended by OP No.1 that warranty of the machine has been given subject to the certain conditions mentioned in the warranty policy wherein it has been stated that “warranty does not extend to the failures due to defects or damages attributable to wear and tear and hence alleged concerns raised by the complainant are not covered under warranty being the consumable items of wear and tear nature.”  It has been denied that any mechanic of the OP ever stated to the complainant that the machine in question is having manufacturing defect and has thus prayed for dismissal of complaint with exemplary costs.

3.                OP No.2 appeared through their authorized representative Sh. Rajinder Saini  and  submitted separate written statement wherein  it has been urged that a person buying goods for self employment is a consumer in case goods are used by the buyer himself exclusively for the purpose of earning his livelihood by means of self employment but the complainant  has not been operating the machine for himself (as clear from the reports  having been signed by his operator) which is essential element to become a consumer.  As such, the complainant is not a consumer.  On merits, it has been submitted that  the complainant is running the business of contractroship under the name of M/s S.S. Associates Engineers &  Contractors and  is one of the partner of the said firm and was not operating the machine for himself and thus does not qualify to be a consumer as per provision of Consumer Protection Act.   It has been further added that the complainant firm have purchased some more machines during the years 2003,2004,2006 and 2009.  All this fortifies that the complainant is not a consumer under the C.P. Act.  The answering OP further submitted that the warranty certificate was issued by the OP No.1.  However, consumables i.e. pins/bushes do not come under warranty in terms of clause 1.2 of warranty certificate. It has been denied that any mechanic of the answering OP made any statement like ‘It is a manufacturing defect’ whereas Operator of the vehicle, Sh. Suresh Kumar and representative Sh. Sanjeev Bansal of M/s S.S. Associates were clearly told on telephone by the service manager Sh. Anil Goelay of Naraingarh Branch that Pin/Bush job would be done on chargeable basis and after keeping in view the warranty policy of JCB India Ltd., the vehicle was brought for the service.  As such, there is no unfair trade practice or any other deficiency on their part and prayed that the complaint may be dismissed against them with costs.

4.                In evidence, the counsel for the complainant tendered affidavit Annexure CX alongwith documents Annexures C-1 to C-7 on behalf of complainant and closed the evidence.

                   On the other hand, the counsel of OP No.1 tendered Affidavit of  Sh. Sanjay Gupta Senior Manager-Legal as Annexure RW1/A  and documents as Annexures A-1 to A-5 on behalf of OP No.1 and closed the evidence whereas  authorized representative of OP No.2 tendered affidavits Annexures RX & RY and document as Annexure R-1 and closed the evidence on behalf of OP No.2.

5.                We have heard the learned counsel for the parties as well as authorized representative of OP No.2 and have also gone  through the case file very carefully. The main grievance of the complainant is that the vehicle/machine in question became defective after its purchase of about  seven months whereas the warranty of the said vehicle was for a period of twelve months/2000 hours whichever occurs first from the date of sale.  The vehicle was got repaired from OP No.2 i.e. authorized service centre of OP No.1 on 06.01.2010 where they charged  a sum of Rs.20085/- though the vehicle in question was within  warranty period  as it worked only 1555 hours  till 06.01.2010  i.e. within 8 months from the date of purchase.

                   On the other hand, the counsel for the OP No.1 as well as representative of OP No.2 have urged that the complaint against the Ops is not maintainable under the provisions of Consumer Protection Act since, the vehicle was being plied for commercial purposes as is evident from the contents of complaint wherein the complainant  himself  has stated that he is a partner of the firm M/s S.S. Associates Engineers & Contractors at Ambala City.  It has been further argued that the parts i.e.  pins / bushes of front excel/bucket which were replaced  by them  are consumable items and not covered within warranty clause  and the amount of Rs.20085/- has been rightly charged by the OP No.2 service centre.

6.                At the very outset, the main question arises for consideration before the Forum is that “whether the complainant falls under the definition of “Consumer” as defined in Section 2(1)(d) of the Consumer Protection Act,1986?”  for which we have to go through the definition of Consumer which is reproduced as under:-

                   Section 2(1)(d)

                   “Consumer” means any person who-

(i)                Buys any goods for a consideration which has been paid or promised  or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or  promised or partly paid or partly promised or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose : or

(ii)             [hires or avails of]  any services for a consideration which has been paid or promised  or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of ] the services for consideration paid or  promised, or partly paid or partly promised or under any system of deferred payment, when such services are availed  of with the approval of the first mentioned person [ but does not include a person who avails of such services for any commercial purpose]

[Explanation-for the purposes of this clause “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment].

                   In the very face of such a preliminary objection, the burden of showing that  the machine  in question was actually being used by the complainant for earning his livelihood through self employment necessarily passed on the complainant but he has not given any information  in this respect in his complaint  whereas the Ops have mentioned that the complainant firm has purchased five JCB machines from the Ops i.e. one each during the year 2003,2004,2009 and 2 machines during the year 2006 vide bills Annexures  A-1 to A-5 and the machine in question was being plied by the operator & not by the  complainant himself which is not for livelihood  rather for earning profit and thus complainant does not come within the definition  of consumer as enshrined in the C.P. Act.   Further, from the perusal  of  document Annexure R-1,  it is clear that no warranty on normal wear & tear parts i.e. leather, Pins, Bushes, Shims, Worn out Bkts, Pads etc. has been provided in warranty document whereas from the Bills dated 06.01.2010 (Annexure C-5) it reveals that the parts changed/replaced in the vehicle/machine were pins & bushes, wear pad etc., hence, the same are  not covered under the warranty conditions. As such, Rs.20085/- has rightly been charged by the OP No.2 for repair of the vehicle/machine.

7.                After hearing the parties at length and going through the facts of the case, we have come to the conclusion that the legislature in its wisdom has found it appropriate to bar and exclude goods which are being used for commercial purposes from the jurisdiction/ ambit of the Consumer protection Act 1986 (hereinafter referred to as “the Act”). The provision of Section 2(1)(d) of the Act makes that amply clear.

                   The nature of the machine concerned which is for excavating, loading and lifting extremely heavy weights or materials can be put for commercial use only.

                   The very cost of the machine which is more than Rs.19.00 lacs clearly establishes, it cannot be confined to use for the purpose of earning livelihood by complainant  himself and the subject machine has been purchased for commercial purposes and with a view of earn profit and not to earn livelihood by self employment.  

                   In support of his case, the Ops have also placed reliance on case laws rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.4260/2010 case titled M/s JCB India Ltd. Vs. Mallappa Sangappa Mantri & others decided on 01.08.2012 and  Revision petition No.2079 of 2012 case titled Action Construction Equipment Ltd.  etc. Vs. Sri Bablu Mridha  decided on 20.07.2012. wherein  it has been held that “person is having more than one  crane and is doing the business  after engaging driver/operator, is involved in the commercial activities. Hence consumer complaint is liable to be dismissed.” So, in view of facts discussed above, the present complaint is not maintainable as per provisions of Section 2(1)(d) of  the Consumer Protection Act and thus the amount of Rs.20085/-  has rightly been charged by the Ops for repair /replacement  of consumable parts.  As such, the complaint is dismissed  with no order as to costs.   Copies of this order be sent to the parties concerned free of costs, as per rules.  File be consigned to the record room after due compliance. 

                                                                                                             Sd/-

Announced in open Court.01.04.2015                                    (A.K. SARDANA)

                            PRESIDENT       

 

                                 Sd/-

                       (S.C. SHARMA)

                                                                                                   MEMBER