Consumer Complaint No. 145 of 2014
Date of filing: 12-08-2014 Date of disposal: 08-12-2016.
Present :
Sri Asoke Kr. Mandal Hon’ble President,
Sri Pankaj Kr. Sinha Hon’ble Member,
Subhas Kumar Agarwal, S/o. Sanwarlal Agarwal,
Kulti College More, P.O.-Kulti, Dist.-Burdwan,
Pin-713343. Complainant.
VERSUS
- Service Advisor/Works Manager,
Jia Auto Sales Pvt. Ltd., NH/6,
Kona Express Highway, Khejurtala,
Inside International Truck Terminal,
Howrah-711 403.
- Service Advisor,
Jia Auto Sales Pvt. Ltd.,
Authorized Dealer for SKODA,
49, Debendra Chandra Dey Road,
EM Bye Pass, Behind Silver Spring,
Kolkata-700 015.
- Customer Care,
SKODA Auto India Pvt. Ltd.,
Plot No.A1/1, Shendra,
Five Star Industrial Area,
MIDC, Aurangabad,
Maharashtra-431201. Opposites. Parties.
Appeared for the complainant : Authorised Representative, R.S.Ganguly.
Appeared for the O. P. Nos. 1 & 2 : Ld. Advocate, Swaraj Shaw, Subrata Ghosh &
Debdas Rudra.
Appeared for the O. P. No.3 : None.
JUDGEMENT
This is a case U/s. 12 of C.P. Act for an award directing the O.Ps. to pay Rs.1,68,000/-as private car hire charges @ Rs.1,200/- per day, Rs. 25,000/- as compensation for mental pain, agony and harassment and to pay Rs.5,000/- as litigation cost, to the complainant.
The complainant’s case in short is that the complainant being the Director of M/s. Sanjay Intra Ltd. purchased one car being Model No. RAPID ELE MT 1.6 TDICR at a cost of Rs.9,66, 887/- from Jia Auto Sales Pvt. Ltd., O.P. No.1, the authorized dealer for SKODA Auto India Pvt. Ltd. vide Tax Invoice No. 06 dated 30.4.2012 and the same was delivered to the purchaser on 3.5.2012. Subsequently, said car was registered as No. WB 44D 2029 on 7.5.2012. The car was taken to the seller company on 31.7.2013 for starting problem which was acknowledged under Email on 30.8.2013. After repairing the car, the same was delivered on 9.11.2013. So, the car was in custody of the seller company for 71 days for the purpose of repairing for the first time. Again the car was brought to the seller company on 8.11.2013 for the various problems and the car was kept in their custody for repairing from 18.11.2013 to 25.1.2014 total 69 days. Accordingly the car was kept with the seller for (71+69) total 140 days for repairing purpose. Since the car is absolutely necessary for use of the complainant and for idleness of the car for above 140 days, the complainant had to take a private car on hire basis with due information to the O.Ps. By issuing letter dated 18.1.2014 the O.P. No.2 intimated that SKODA (O.P. No.3) approved Rs.1,200/- per day for hiring charges of the car taken by the complainant and they asked the complainant to receive the same by submitting loaner car bill along with service tax and Vat No. It was not possible to submit the loaner car bill, service tax and Vat No. as the owner of the private car did not possess the same. As the hire car charges, have been approved by SKODA (O.P. No.3), the complainant is entitled to get the same without submitting such documents. But the O.Ps. did not pay the same with the plea that the loaner car bill, service tax and vat number were not supplied. The complainant approached the Burdwan District Protection and Welfare Centre to interfere in the matter. Above centre by sending letters requested the O.Ps. to settle the dispute but the O.Ps. have not settled the dispute. As such the complainant was advised by the above centre to take up the dispute before this Forum for illegal act of the O.Ps. The complainant has suffered monetary loss, mental agony and harassment and also the complainant has been forced to file this complaint before this Forum. So, the complainant is entitled to get an award as mentioned above.
The O.P. No.3 inspite of service of notice did not contest this case by filing written version or by appearing before this Forum. Accordingly this case was heard ex parte against the O.P. No. 3.
The O.P. No.1 & 2 contested this case by filing written version whiling stating inter-alia that the case is not maintainable, this Forum has no jurisdiction to to try this case, the case is bad for non-joinder of necessary parties and the complainant has no cause of action to file this case. It has been further stated by these O.Ps. that there is/was no manufacturing defect in the car in question, there was no deficiency in service on the part of the O.Ps. though the Consumer Protection Act, 1986 is a beneficial legislation the same cannot be used as a mechanism to arm twist companies to agree to the unreasonable demands of the consumer like the complainant and the complainant has filed this case for unlawful gain on frivolous ground. It is, therefore, claimed that this case is liable to be dismissed with cost against the O.Ps.
DECISION WITH REASONS
To prove his case the complainant has relied upon the photocopies of Tax Invoice dated 30.4.2012, Smart Card showing registration of the car in question, the acknowledgment
showing receiving the car for repairing and keeping the same in the custody of the O.Ps. for repair, Mail copy of a letter issued to the complainant showing that the O.P. No.3 has sanctioned Rs.1,200/- per day as hire charge for a loaner car, Advocate’s letters dated 2.4.2014 and 30.5.2014, and evidence on affidavit submitted by the parties .
We carefully perused the materials on record including the contents of the pleadings and evidence on affidavit. We have also considered the answers of questionnaires submitted by the complainant and the O.P. No.1.
It appears that this case has been filed by Subhas Kumar Agarwal in his personal capacity but in the body of the complaint, said Subhas Kumar Agarwal has stated that he is the Director of M/s. Sanjay Intra Ltd. In the complaint the complainant has stated also that he purchased the car having Model No. RAPID ELE MT 1.6 TDICR vide Tax Invoice No.06 dated 30.4.2012 and subsequently said car was registered being No.WB 44D 2029 on 7.5.2012. The Tax Invoice as mentioned above shows that the vehicle in question was purchased at the total cost of Rs.9,66,887/- by M/s. Sanjay Intra Ltd. M/s. Sanjay Intra Ltd. is a company. Nothing is coming to show that said company has empowered the present complainant Subhas Kumar Agarwal to institute this case on behalf of it. From the side of the complainant no evidence has been adduced showing that he is the Director of the company as mentioned. The copy of the Smart Card shows that the car was registered in the name of M/s. Sanjay Intra Ltd. From these two documents it is clear that the complainant has no authority to file this complaint being a complainant. The word ‘consumer’ has been defined in Section-2(d) of Consumer Protection Act, 1986. Section-2 (d) of C.P. Act, 1986 provides “consumer” means any person who-
- 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
- [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 and 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].
Section-2(d) of C.P. Act, 1986 clearly says that the person who obtained the goods for resell or for any commercial purpose and the person who avails of services for any commercial purpose, shall not the consumer. M/S. Sanjay Intra Ltd. being a company shall not be treated as person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment. As the vehicle as mentioned above was purchased in the name of M/s. Sanjay Intra Ltd. it could be safely said that the car was purchased for commercial use. So, M/s.Sanjay Intra Ltd. shall not be the consumer as per provision of Consumer Protection Act and said Subhas Kumar Agarwal the present complainant being the Director, if accepted for
argument sake, cannot claimed himself as the consumer. Accordingly, the case is not maintainable as per provisions of Section-2(d) of Consumer Protection Act.
From the evidence on record it appears that the car was repaired in Calcutta. The address of the O.Ps. as shown in the complaint is at Howrah, Kolkata and Maharastra respectively. The repairing work was made at Calcutta and the hire charge was approved by O.P. No.3, situated at Maharastra the cause of action of this case arose at Maharastra outside the jurisdiction of this Forum. So, this Forum has no territorial jurisdiction to try this case.
In view of our above discussions we are of the opinion that the complainant is not a consumer, the vehicle in question was purchased for commercial purposes and the cause of action of this case arose outside out side the jurisdiction of this Forum. So, this case is not maintainable in this Forum and this Forum has no jurisdiction to try this case. Accordingly, the case is liable to be dismissed.
Fees paid is correct. Hence, it is
Ordered
that the C.C. No.145/2014 is dismissed on contest against the O.P. No.1 & 2 and ex-parte against the rest without any cost.
Let the copies of this order be supplied to the parties free of cost.
Dictated and corrected by me,
(Asoke Kr. Mandal)
(AsokeKr.Mandal) President
President D.C.D.R.F., Burdwan
D.C.D.R.F., Burdwan
(Pankaj Kr. Sinha)
Member
D.C.D.R.F., Burdwan
