West Bengal

Paschim Midnapore

CC/98/2014

Barsan Chatterjee - Complainant(s)

Versus

M.D. Bhandari Autobobile Pvt. Ltd - Opp.Party(s)

Mr. S.Das.

17 Mar 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Bibekananda Pramanik, President,

&

Mrs. Debi Sengupta, Member

   

Complaint Case No.98/2014

                                                       

                                                            Sri Barsan Chatterjee………………..….……Complainant.

Versus

 

               1)M.D., Bhandari Automobile Pvt. Ltd.,

               2)Tata Motor Finance Ltd.,

                     3)  Area Service Manager, Tata Motors Ltd……..Opp. Parties.

 

              For the Complainant: Mr.  Subrata Das, Advocate.

              For the O.Ps.             : Mr. Arindam Das, Advocate,

                                                  : Mr. Diptendu Ghosh, Advocate and

                                                  : Mr. Goutam Dey, Advocate.

 

                                                

                                                                                      Decided on: -17/03/2016

                                

ORDER

                          Bibekananda Pramanik, President – Facts of the case, in brief, is that the complainant, after completion of his education, started a transport business named and styled as MAA TARA TRANSPORT CO. for the purpose of earning his livelihood by means of self-employment in the year 1996.  Initially the complainant started his business after hiring trucks from others.  Thereafter, the complainant purchased five trucks of Tata Motors from the dealer at Durgapur

Contd…………………..P/2

 

( 2 )

after taking financial loan from Tata Motors, Durgapur Branch in the year 2007.  Thereafter, the complainant also purchased five trucks of Tata Motors being model no. TATA-1109 with the financial help of Tata Motor Finance Ltd., Durgapur Branch in the year 2008.  Again the complainant decided to purchase ten trucks of TATA 1109 models and after knowing the same, the opposite party no.2 disclosed  that if the complainant purchases the same from opposite party no.1, then he will be benefited and after discussion, the complainant decided to purchase those trucks from opposite party no.1. Accordingly he placed order before the opposite party no.1.  After obtaining financial loan from opposite party no.2, the complainant purchased six trucks of Tata Motors in three phases i.e. on 10/11/2010, 26/11/2010 and 08/12/2010 out of which one truck was sent back immediately after noticing mechanical problem.  After such purchase, the complainant found that the opposite party no.1 supplied those trucks of new technology although the complainant wanted to purchase the trucks of the same model which he purchased in the year 2007 and 2008.  Sometimes thereafter, trouble started when the trucks started running on the road.  It was found that there was problem in pick up and consumption of fuel.  The complainant immediately contacted with opposite party no.1 and opposite party no.3 and at that time they intimated that the trucks which were supplied to the complainant are of new technology and as such the same could be monitored only by their computer engineer.  The complainant wanted to know from opposite party no.1 as to why the new type of trucks were supplied without the knowledge of the complainant and after knowing the same, the complainant stopped taking delivery of rest four trucks and requested opposite party nos.1 and 3 to take return of the trucks which were supplied to him.  Thereafter, they did neither arrange for taking back those trucks nor they cured the problem as there was no service engineer who can rectify the same.  In the mean time, in the month of July 2011 it was detected that there was manufacturing defects in those trucks. The complainant therefore sent notices to the opposite parties on different dates requesting them to solve the matter but they did not pay any heed to that.  The complainant thereafter submitted a complaint before the Chairman, Tata Motors Ltd. Bombay on 16/01/2013 and thereafter the Service Manager of opposite party no.3 gave a reply through mail on 13/02/2013 confirming an enhancement of warranty period for six months and for maximum financial help from opposite party no.2 towards compensation.  When the complainant claimed for compensation, they stopped communication.  It is stated

Contd…………………..P/3

 

                                                                                                       ( 3 )

that there was deficiency in service on the part of the opposite parties.  Hence this complaint praying for directing the opposite parties to pay Rs.17,00,000/- as compensation as he sustained loss due to manufacturing defects and for an order for payment of Rs.1,50,000/- as compensation for deficiency in service and for an order of cost of Rs.50,000/-.

                  All the opposite parties have contested this case by filling separate written statement.  From the lengthy written statements of the opposite parties, we find that all the opposite parties have stated that the present complainant is not a consumer within the meaning of the term Consumer as defined under section 2(1) (d) of the Consumer Protection Act, 1986.  According to them, the complainant in his petition of complaint has stated that he deals in transport business in the name of MAA TARA TRANSPORT CO. since the year 1996 and he purchased five trucks in the year 2007 and another five trucks in the year 2008 and later on he purchased another six trucks in the year 2010 from the opposite party no.3 for his said transport business.  According to the opposite parties, the complainant is a fleet owner who has been carrying on transport business in order to earn profit and not by means of self-employment and as such he is not a consumer as defined under Section 2(1) (d) of the Consumer Protection Act, 1986 and as such the complainant cannot claim the status of a consumer under the Consumer Protection Act 1986 and he is therefore not entitled to any relief from this Forum. It is also the case of the opposite party no.3, as made out in their written objection, that the allegation of manufacturing defect of the vehicle is not supported by any expert report from recognized and notified laboratory as provided under section 13(1) of Consumer Protection Act, 1986 and without such documentary evidence in support of such allegation of mechanical defects, it cannot be held that there is any deficiency in service on the part of the opposite party no.3.  It is also the case of the opposite party no.3 that the vehicles were purchased in the month of November, 2010 and the present complaint has been filed after more than the period of limitation of two years.  Opposite parties, therefore, claimed dismissal of the complaint.

     To prove his case, the complainant has tendered his examination–in-chief as PW-1, supported by affidavit and he was also further examined on oath and was cross examined in full.  During his evidence, few documents were marked as exhibit 1 to 20 respectively.  On the other hand, opposite parties adduced no evidence.

Contd…………………..P/4

 

 

( 4 )  

Points for decision

1)Is the complainant a Consumer as defined under Section 2(1)(d) of the Consumer Protection Act 1986 ?

2)Is the case barred by limitation ?

                       3)   Is the complainant entitled to the reliefs as prayed for ?

                                                                                          

Decision with reasons

            Point no.1

                                    In his petition of complaint, the complainant has stated that he runs a transport business named and styled as MAA TARA TRANSPORT CO. for the purpose of earning  his livelihood by means of self employment.  Explanation of section 2(1) (d) of Consumer Protection Act provides that commercial purpose does not include use by a person of goods brought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.  Now let us see as to whether the complainant can be said to be a consumer as defined under Section 2(1) (d) of Consumer Protection Act by virtue of the explanation of the said section.  Here in this case, we find that it is none but the complainant who has disclosed in his petition of complaint that for his such transport business he at first purchased five trucks with financial help from Tata Motors Company in the year 2007 and thereafter in the year 2008, he purchased another five trucks with the financial help of Tata Motor Finance, Durgapur Branch and thereafter in the year 2010, he purchased six trucks in three phases from opposite party nos.1 and 3 with financial loan from opposite party no.2. The burden of proving that the purchase of such trucks were not for commercial purpose lies on the person who states that he purchased those trucks not for commercial purpose but for earning his livelihood by way of   self- employment.  In this case, the complainant does not say as to how those trucks are being used by him for self employment for earning his livelihood.  The nature of such transport business by means of as many as 15/16 trucks cannot be said to be run by the complaint himself.  It is obvious that the complainant has been using those trucks for his transport business by engaging  drivers and other employees.  Thus it is found that the complaint has purchased those trucks in question from the opposite party nos.1 and 3 for commercial purpose and he, therefore, cannot be said to be a ‘consumer’ within the meaning of Section 2(1) (d) of Consumer Protection Act.  This point is accordingly decided against the complainant.

Contd…………………..P/5

 

 

( 5 )

 

            Point No.2

                                    Admittedly the complainant purchased those trucks in question in the year 2010.  In paragraph 9 of the petition of complaint, it has been stated that in the month of July 2011, it was detected that there is manufacturing defects in those trucks.  So the cause of action, if any, arose in the month of July, 2011.  The present complaint has been filed on 21.08.2014 i.e. long after the period of limitation of two years as provided under Section 24A of Consumer Protection Act.  It is, therefore, held that the present case is barred by limitation.

           

            Point No.3

                                    In view of our above findings in point nos. 1 and 2, we are constrained to hold that the complainant is not a ‘consumer’ within the meaning of Section 2(1) (d) of Consumer Protection Act and the petition of complaint is also barred by limitation and as such, the complaint is not entitled to get any relief in this case, as prayed for.

                  However, the complainant shall be free to avail any remedy available to him under any other law.

                                               Hence, it is,

                                                Ordered,

                                            that the complaint case no.98/2014  is hereby dismissed on contest but in the circumstances without cost.

                               Let plain copy of this order be given to the parties free of cost.

 

            Dictated & Corrected by me

                             Sd/-                                            Sd/-                                       Sd/-

                         President                                    Member                                President

                                                                                                                     District Forum

                                                                                                                  Paschim Medinipur