By. Sri. Chandran Alachery, Member:-
The complaint is filed Under Section 12 of the Consumer Protection Act of 1986 for an Order directing the opposite party No.1 to a pay sum of Rs.5,40,000/- as modification charge, Rs.1,563/- as cost of repair charge, Rs.3,940/- as additional cost, Rs.500/- as compensation per day, Rs.1,000/- as cost of the proceedings and direction the opposite party No.2 to replace the vehicle with new one and to pay interest for the purchase amount, to pay Rs.500/- as compensation per day and Rs.1,000/- as legal notice charges to the complainant.
2. The complainant's case in brief as follows:- The complainant bought one Ambulance from opposite party No.1 and after customization work, the vehicle was delivered on 13.10.2012 by opposite party No.1 at Meppadi. The total price of the vehicle was Rs.5,40,000/-. Soon after delivery on 02.12.2012 while the vehicle was traveling to Calicut, the vehicle brake down on the way due to breakage of fan belt. The complainant then had taken the vehicle to authorized dealer to cure the problem and get it repaired. The vehicle was repaired and delivered to the complainant on 03.12.2012. The repair charge was Rs.414/-. The complainant incurred additional charges of Rs.1,434/-. The vehicle started giving the same problem even after repair. On 06.02.2013 the same problem arised and got it repaired on 07.02.2013. The belts have broken 4 times within 10 hundred Kms. Again the same problem arised and got it repaired for a sum of Rs.1,563/-. Then the complainant send lawyer notice on 09.05.2013 to the opposite party No.1 for remedies. Opposite party No.2 replied denying the entire things. Aggrieved by this, this complaint is filed.
3. On receipt of complaint, Notices were issued to the opposite parties and opposite parties filed version. Opposite party No.1 contented that the complainant is running the Hospital for commercial purpose and hence the complainant is not a consumer as per the Consumer Protection Act. Opposite party No.1 had done all the work with respect to ambulance alteration work as per work order given to them by complainant and delivered the vehicle on 27.10.2012 in a good working condition and satisfactory condition to the complainant. More over, Opposite party No.1 contented that opposite party No.1 delivered the vehicle at Coimbatore in Tamilnadu and all transactions are taken place from Coimbatore. Opposite party No.1 have no office at Wayanad. So this Honorable Forum have no jurisdiction to try the case modifying of service from opposite party No.1.
4. Opposite party No.2 filed version and contented that opposite party No.2 is an unnecessary party and there is no deficiency of service from opposite party No.2. Opposite party No.2 is unaware that the complainant had given the vehicle to opposite party No.1 for customization work. There is no manufacturing defect to the vehicle. This opposite party No.2 is not liable for the repair defect due to customization work. Opposite party No.2 is not liable to replace the vehicle with a new vehicle.
5. Opposite party No.1 filed I.A No.300/2014 for a preliminary Hearing on the question of maintainability of this complaint with respect to territorial jurisdiction as well as to decide whether the complainant falls under the definition of consumer as envisaged in the Consumer Protection Act. Opposite party No.1 contented that the complainant is running the Hospital for commercial purpose and the Ambulance is used for business purpose and not for livelihood of complainant. The opposite party No.1 contented that opposite party No.1 have no office in Wayanad District and all transactions with the complainant took place at Coimbatore in Tamilnadu. So this Forum have no jurisdiction to try the case.
6. The complainant filed counter in I.A No.300/2014 and stated that Ambulance service is an integral part of the medical service provided by the complainant. This is not for commercial purpose and complainant is running the Hospital under non profit basis and the trust registered under Indian Trust Act. Complainant further states that the representative of opposite party No.1 approached the complainant at Wayanad for soliciting the business and the vehicle is delivered at Kalpetta. So this petition for maintainability will not arise in this case.
7. On going through the I.A No.300/2014 and the counter filed by the complainant, the Forum raised the following points for consideration:-
1. Whether the complaint is maintainable with respect to territorial jurisdiction and whether the complainant is a consumer or not as envisaged in the
Consumer Protection Act?
8. Point No.1:- In I.A No.300/2014, both the parties were heard. Complainant produced one document that is deed of trust and certified copy of resolution. On perusing the Deed of Trust, it is found that the Trust Deed prepared in a stamp paper which is purchased from Kozhikode, the parties in the Trust are also living in Kozhikode district. More over, the registered office of the Trust is at Kozhikode. The deed is prepared on 02.08.2010. The Board of Trustees include Dr. Azad Moopen, Mrs. Azad Moopen, Dr. Abdulla Cherayakkat and Mr.Charayakkat and Mr. Anwar Ameen. The objects of the trust is shown as education and medical relief service without profit motive. But here the Forum found that in the Trust deed, there is no mention that the medical aid is given by the above said Hospital for free of cost and the profit is exclusively used for charitable purpose. No profit and loss account and balance sheet, income tax returns nothing is produced before the court for perusal. The members of the Trust are seems to be relatives and not from public. There is absolutely no evidence produced by the complainant to prove that the hospital is run for charitable purpose only. A private medical college is also attached with this hospital. So the Forum reached to a conclusion that the hospital is not run for charitable purpose and also not for self employment. It can be safely concluded that it is a commercial concern. The Honorable National commission, New Delhi in 2013 June Part 6 CPR page 448, Automobile Manufacturing defect complaint – maintainability- complaint dismissed by state commission in appeal – Tractor has been purchased for commerial purpose, complainant will not fall under definition of 'consumer' as per section 2(1) (d) of Consumer Protection Act of 1986, as vehicle is used for commercial purpose, complaint is not maintainable, District Forum did not consider this primary issue while deciding complaint regarding territorial jurisdiction. The trust deed produced in this case shows that it is prepared at Kozhikode and its members are residing in Kozhikode District. The complainant produced certified copy of resolution of the Trust dated 30.12.2011 shows that the Registered office of the Trust be changed from kozhikode to 28/927, Naseera Nagar, Meppadi post, Wayanad district with effect from 16.01.2012. This document is seen prepared at Calicut and signed by Dr. Azad Moopen. The document have no authority because it is prepared by the Managing Trustee. No government level certificate is produced to prove that the Registered office is shifted to Wayanad.
9. Opposite party contented that all transactions took place at Coimbatore in Tamilnadu state as well as from Kozhikode. There is no evidence produced by the complainant to prove that the transaction is taken place at Wayanad or the delivery of the vehicle is given at Wayanad. So while considering territorial jurisdiction also, the complainant is failed to prove the case. Since the Hospital run by complainant is found that it is a commercial concern and it is not run for self-employment or livelihood, the citation produced by the complainant (Appeal 159/04, National Commission, New Delhi) in this case will not applicable to this case. The point No.1 is found accordingly.
In the result, Since I.A. No.300/2013 filed for challenging the maintainability on various aspects of the complaint before the Forum is allowed by this Forum, the complaint will not lie and the complaint is also dismissed. No Order as to cost.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 23rd day of May 2014.
Date of Filing:12.06.2013.
