IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 106/S/2014. DATED : 02.02.2018.
BEFORE PRESIDENT : SMT. KRISHNA PODDAR,
President, D.C.D.R.F., Siliguri.
MEMBER : SMT. PRATITI BHATTACHARYYA.
COMPLAINANT 1. : SRI GOVIND AGARWAL
S/O Late Trilok Chand Agarwal,
being the director of Trilok Nirman Pvt. Ltd.,
resident of Shree Shyam Villas, Block E, 0304,
Uttorayon Township, P.O. & P.S.- Matigara,
Dist. – Darjeeling, Pin – 734 010.
O.Ps 1. : JAI AUTO SALES PVT. LTD.,
CO: Divine Bliss,
2/3 Judges Court Road, 1st Floor,
Kolkata – 700 027.
2. : JAI AUTO SALES PVT. LTD.,
Siliguri Workshop,
Simco Warehouse Compound,
Opp: Barsana Hotel, Khaprail Road, Matigara,
P.O. & P.S.- Matigara, Dist. – Darjeeling, Pin – 734 010.
3. : SKODA AUTO INDIA PRIVATE LIMITED,
a-1/1, M.I.D.C., Five Star Industrial Area, Shendra,
Aurangabad, Maharashtra, PIN – 431 201.
FOR THE COMPLAINANT : Sri Milindo Paul, Advocate.
FOR THE OP Nos.1 & 2 : Sri Avrojyoti Das, Advocate.
FOR THE OP No.3 : Sri Rathin Sarkar, Advocate.
J U D G E M E N T
Smt. Krishna Poddar, Ld. President.
The brief facts of the complaint’s case are that the complainant is one of the Directors of Trilok Nirman Pvt. Ltd. A vehicle being (SKODA FABIA, Registration No.WB-74N-4350, Engine No.BNM400439, Chassis No.TMBDEH5J58A506741) was purchased in the name of Trilok Nirman Pvt. Ltd. The complainant being the Director of the company used the said vehicle. The said vehicle was showing some starting problem and accordingly the complainant sent the vehicle for servicing to the OP No.2 on 27.08.2013 and OP No.2 issued one receipt to the complainant stating the specific date of delivery on 06.09.2013. On the stipulated date the OP No.2 did not handover the vehicle to the complainant. Complainant made contact and visited the OP No.2 on several times but even after lapse of several months OPs did not do anything in the matter. Complainant waited for almost five months even after several visit to the office of the OP No.2 but he did not get the vehicle. The complainant thereafter issued a legal notice through his lawyer on 31.01.2014 to the OP No.1 but the notice was returned to the sender with the postal endorsement ‘address not known’. Waiting for more than a month the complainant sent another notice dated 05.03.2014 to the OP No.2 and copy of the same was sent to OP No.1. Thereafter, OP No.2 through their employee Neelam Sharma vide email asked the complainant for an N.O.C. so that the OP No.2 can send the vehicle to Kolkata for repair. Complainant in receipt of the email instructed the Manager of the OP No.2 to proceed with the repair. Even after such unambiguous instructions from the complainant the OP Nos.1 & 2 did not do anything to provide any service to the complainant. Complainant then made a complaint to the grievance cell of the manufacturing company i.e., OP No.3 vide email dated 28.07.2014 and the OP No.3 replied and assured that the matter has been taken up by the concerned dealership and the OP No.3 would “revert back with further resolution at the earliest” but OP No.3 did not take any initiative in the matter. The complainant is suffering from financial loss, harassment and mental agony due to unfair trade practice of the OPs. Till date the vehicle has not been delivered to the complainant and complainant apprehends that the vehicle cannot be repaired and there are gross manufacturing defect in the vehicle. Hence, this case.
The OP Nos.1, 2 & 3 entered appearance and contested the case by filing two separate written versions wherein the material averments made in the complaint have been denied and it has been contended inter-alia that the instant case is not maintainable. It has been contended by OP Nos.1 & 2 that the vehicle having been purchased for commercial purpose by a corporate entity, the complainant cannot be said to be a ‘Consumer’ within the meaning of the said Act. It has been further contended by the OP Nos.1 & 2 that complainant has deliberately suppressed the fact that there was starting problem of the car but in fact the engine of the car had ceased due to misuse and irregular service on the part of the complainant and the car was not within the period of warranty and as such an estimate for the cost of replacement of the engine which was quite high and the cost of fitting and as well as of the ancillary parts was also intimated to the complainant and upon coming to know such expenditure complainant requested for replacement of the engine free of cost. It has been further stated by the OP Nos.1 & 2 that after hectic and prolong persuasion made by the company with the said Skoda, the company could arrange for free replacement of the engine and the complainant was intimated over telephone as well as by way of email with respect of approval for replacement of complete base engine from the said Skoda free of cost and also to pay Rs.50,000/- for the consumables and other items and expenses on or about 05.12.2014. However, after the car was ready and complainant was intimated to take delivery upon making payment of the fitting charge, the complainant stated that he is not interested in making payment and deliberately not taken delivery of the car and complainant then filed a false criminal case before the Addl. Chief Judicial Magistrate at Siliguri and the matter came up to Hon’ble High Court at Calcutta and Hon’ble High Court upon considering the case of the OP by an order dated 17th August, 2015 had been pleased to stay all further proceedings of the criminal case instituted by the complainant. It has been further stated by the OP Nos.1 & 2 that the present case filed by the complainant on frivolous grounds and as such liable to be dismissed with exemplary cost.
The OP No.3 has filed separate written statement stating that the vehicle in question was/is purely used for commercial purpose for the gain of the company of the complainant and thus this Forum has lack its jurisdiction to try the case as per settled Provisions of Law contemplated in the Consumer Protection Act, 1986. It has been further contended by the OP No.3 that in the complaint the complainant has not made any single whisper regarding any manufacturing problem and after purchasing the said vehicle the complainant’s company has used the same freely, smoothly and without any problems for about five years without any manufacturing problem and OP No.3 is not at all liable for any dispute cropped up in between the complainant and the OP Nos.1 & 2 other than a genuine problem of manufacturing defect subject to technical expert’s report and evidence and as such the instant case is liable to be dismissed.
To prove the case, the complainant has filed the following documents:-
1. Photocopy of the Job Card dated 27.08.2013 given by OP No.2 to the complainant.
2. Photocopy of Legal Notice dated 31.01.2014 along with postal receipt and envelope with endorsement “Address not known”.
3. Photocopy of Legal Notice dated 05.03.2014 along with postal receipt and envelope with endorsement “Address not known” and A/D Card from OP No.1 which is duly received.
4. Photocopy of Legal Notice dated 05.03.2014 with the receiving seal of OP No.2 on 26.03.2014.
5. Photocopy of the email conversation between the complainant and OP No.1 dated 07.04.2014 and 12.07.2014.
6. Photocopy of the email conversation between the complainant and OP No.3 dated 28.07.2014 and 13.08.2014.
Complainant has filed examination-in-chief supported by affidavit.
Complainant has filed written notes of argument.
OP No.3 has filed examination-in-chief.
OPs have filed Written Notes of Argument.
Points for determination
1. Whether the complainant is a consumer within the meaning of Section
2(1)(d) of Consumer Protection Act, 1986 ?
2. Whether there is any deficiency in service on the part of the OPs ?
2. Whether the complainant is entitled to get any relief as prayed for ?
Decision with reason
Issue No.1
This is the specific case of the complainant that he is one of the Directors of M/S Trilok Nirman Pvt. Ltd. The said Company purchased the vehicle in question being SKODA FAVIA having Registration No.WB-74N–4350, Engine No.BNM400439 and Chassis No.TMBDEH5J58A506741 and complainant being the Director of the said company used the vehicle in question for his personal use. The further case of the complainant is that the vehicle was showing some starting problem and as such he sent the vehicle to OP No.2 on 27.08.2013 for repairing purpose. The complainant had waited for more than five months but OPs neither repaired the vehicle nor delivered the vehicle back to the complainant. Complainant has submitted the photocopy of job card dated 27.08.2013 given by the OP No.2 in favour of the complainant. On perusal of the said job card we find the customer’s name and address is written as follows : “M/S Trilok Nirman Pvt. Ltd., Sardhha Complex, 3rd Floor, Sevoke Road, Siliguri”. Complainant also admitted in his petition of complaint that the vehi`cle in question was purchased in the name of M/S Trilok Nirman Pvt. Ltd.
On perusal of the complaint petition as well as documents furnished on the side of the complainant we find that the vehicle in question was purchased in the name of M/S Trilok Norman Pvt. Ltd., the complainant is one of the Directors of the said company. Complainant’s claim is that he used the vehicle in quested as a Director of the company for his personal purpose. When it appears that the vehicle in question is purchased in the name of the company there is no hesitation to hold that the vehicle is purely used for commercial purpose for the gain of the company. This is not the case of the complainant that the vehicle was purchased by the complainant for the purpose of earning his livelihood by way of self employment. So, it cannot be held that the complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986.
This issue is accordingly decided against the complainant.
When it is held that complainant is not a ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986, so, this Forum is of the view that Issue Nos.2 & 3 are not required to be discussed.
In the result, the case fails.
Hence, it is
O R D E R E D
that the Consumer Case No.106/S/2014 is dismissed on contest against the OPs without cost.
Let copies of this judgment be supplied to the parties free of cost.
