20.03.2015
MRIDULA ROY, MEMBER.
The instant appeal is directed against the judgment and order dated 27.05.2013 passed by Ld. District Forum, Kolkata, Unit – II in complaint case being No. CC/112/2007 dismissing the same on contest without cost.
Being aggrieved by the impugned judgment the Complainant has preferred the instant appeal.
The case of the Complainant, in brief, is that the Complainant purchased a vehicle namely, TATA Sumo (SF) having Registration No. WB-04-8056 from the O.P. No. 1 at a consideration of Rs.4,83,250/- inclusive of VAT with financial assistance of Directorate of Youth Service, Government of West Bengal under a self-employment scheme, namely, “Bangla Swanirvar Karma Sanstha Prokalpa”. The Complainant has stated he had found the said vehicle defective since purchase for which he could not ply the same and suffered financial loss. The Complainant in the petition of complaint categorically mentioned the defects he found in the vehicle in question and mentioned the same as manufacturing defect. The Complainant also stated that inspite of availing three free services rendered by the O.Ps the defects had not been removed. Hence, he filed the petition of complaint before the Ld. District Forum praying for direction upon the O.Ps to replace the vehicle by a new one, alternatively, to refund the consideration amount along with compensation.
The O.P. No. 1 contested the case by filing W. V. denying and disputing all material allegations stating, inter alia, that the case was not maintainable since the Complainant was not a consumer within the purview of the C. P. Act as he purchased the vehicle in question for commercial purpose and further the Complainant did not take care of his vehicle properly since he did not follow the warranty norms as he did not avail the 4th free service scheduled to be rendered by the O.P and though he availed the three free services that too also not following the plying limit of the vehicle.
In course of hearing of the appeal the Ld. Advocate for the Appellant has submitted that the specific defects are mentioned in the petition of complaint. Ld. Advocate for the Appellant has further submitted that he took the vehicle in question to a service centre namely, “Just Services” and got his vehicle checked there. The said service centre also found the vehicle defective and issued an Estimate for Repair dated 29.06.2010 to that effect. Ld. Advocate for the Appellant has further submitted that from the estimate issued by the said service centre it would be evident that there were defects in the said vehicle. Ld. Advocate for the Appellant has also submitted that he got free service thrice as per warranty norms and the same were also done without violating the plying limit of the said vehicle. In support of his contention the Ld. Advocate for the Appellant has relied upon the following decisions:-
(1) 2013 (2) CPR 595 (NC) – Tata Engineering and Locomotive Ltd. & Anr. –Vs.- Subhas Ahuza.
(2) 2013 (2) CPR 599 (NC) – Housing Board, Haryana – vs. – Sri Kuldip Anand.
(3) 2014 (1) CPR 54 (NC) – Hind Motor (I) Ltd. & Anr. – vs. – Lakhbir Singh& Anr.
Ld. Advocate for the Respondent No. 1 has submitted that the Complainant did not avail the 4th free service and thus, could not claim or allege the vehicle as defective and, moreover, no expert evidence had been adduced by the Complainant – Appellant to that effect.
Ld. Advocate for the Respondent No. 2 filed Brief Notes of Argument and submitted that the ‘Just Service’ was not their authorized service centre and, therefore, the Appellant in violation of the warranty norms got the service of his vehicle therefrom and for the same the Respondent could not be held as liable for any defect as alleged. Ld. Advocate for the Respondent has further submitted that the Appellant availed the three free services rendered by the Respondents and also issued the satisfaction note to that effect.
Having heard the submissions made by the parties and on perusal of the materials on record it appears that the Complainant purchased the vehicle under the “Bangla Swanirvar Karma Sanstha Prokalpa” but in the complaint there is no mention that he purchased it for earning his livelihood by means of self employment. Under the circumstances, the Complainant cannot be said to be a consumer.
Further, the Complainant – Appellant has stated that he had availed three free services whereas as per the warranty norms the scheduled time of 4th free service was over but the Appellant did not avail the same.
Further, the Appellant has stated that he has got the service of his car from a service centre namely ‘Just Services’. But the same is not the authorized service centre of the Respondents. Therefore, it is evident that the Appellant did not follow the warranty norms.
Under such circumstances, we are of opinion that the Appellant allegation of defect in the vehicle in question is not tenable since he himself violated the warranty norms. We find no infirmity in the impugned order.
In the result, the appeal fails.
Hence, ORDERED, the appeal is dismissed on contest without cost. The impugned order is affirmed.
