This is an application filed by the complainant u/s.12 of the C.P. Act, 1986.

            The brief facts of the case of the complainant is that on 23/04/2011 the O.P. sold and delivered a new vehicle Model-LYNK ALP SV 3/47 with the warranty for 1 ½ year for 1.5 lacks Km. from the date of sale of the vehicle. The O.P. has attached an operator manual where the instruction to get service and repair were given. That within warranty period on 22/02/2012 the complainant deposited his vehicle to the O.P.-3, the Authorized Service Center for replacement / repair for fuel injection pump which was found defective and creating lot of problem. But the O.P. has demanded Rs.53,000/- as service charge from him. As the complainant failed to make payment of the service charge his vehicle was illegally detained by the O.P.-3 and the complainant has to incurred a loss Rs.3000/- per day as his vehicle is not plying on the permitted route from Pather Bazar to Diamond Harbour via Addya Bagan, Kakdip, Kulpi. That on 06/03/2012 the complainant has lodged a diary to Sankrail P.S. vide GDE No. 319 dated 06/03/2012 against the O.P.-3. On 29/03/2012 the complainant has lodged a written complain to all the O.Ps. including the General Manager of Ashok Layland regarding non availability of free service from the authorized service center O.P.-3. The complainant suffered a loss but he did not get any reply regarding fresh free service from any of the O.Ps. without getting any redressal he was forced to come to the Forum for redressal of grievances.

The O.P.-1 GNB Motors Ltd. By filing W/V denied and disputed all the allegations made against them. They have stated that the complainant has not made any allegation nor any relief has been sought from them. The complainant is not a consumer within the meaning of the C.P. Act, 1986. The warranty which was issued was not made by them as they are not the manufacturer of the vehicle. They have no obligation and their name should be expunged.

O.P.-2 the Ashok Layland also denied and disputed all the allegations. They have categorically stated that the complainant himself admitted the fact of a 39 seated commercial passenger vehicle which was playing under Bus Route No. SD-50 and avail the service for commercial purpose. Therefore, the complainant is not a consumer under the purview of the C.P. Act, 1986. The complaint suffers from mis-joinder of necessary parties. M/s BOSCH Ltd. who are the manufacturer of the fuel injection pump and their authorized servicing dealer M/s ARRKAY Diesel physically investigated and rejected the complaint  under warranty have not been made necessary parties. The O.P. has followed all the terms and conditions of the warranty. They have no deficiency in service. The claim was rejected by M/s BOSCH Ltd. The complaint is liable to be dismissed.

By filing W/V the O.P.-3, the Manager, Shree Automotive Pvt. Ltd. has also denied and disputed all the allegations made against them. They have stated that the manufacturer of the fuel injection pump M/s BOSCGH Ltd. and their authorized dealer M/s AARKEY Diesel have rejected the free service under warranty after necessary physical investigation and they have not necessary parties.  The replacement, repair was rejected by M/s BOSCH Ltd. and its Dealer on technical ground. But they have not made any party. The complainant is not a consumer as the vehicle was purchased for commercial purpose. The complainant deliberately suppressed the inside contents of the operator’s manual. The complainant was requested to contact their respective service centers directly or through the Dealer but the complainant has not opted the same but instead preferred to knock the door of this Forum. The O.P.-3 has no deficiency in service and the complainant’s case is liable to be dismissed.

Both parties adduced evidences and brief of written argument  of their respective cases. The case is taken up for hearing in presence of Ld. Advocates of both parties. Heard them. Perused all documents.

The moot question is (1) whether the complainant is a consumer or not (2) whether he is entitled to get any relief as prayed for or not.

Decision with reasons

Both points are taken up together for the sake of convenience and brevity.

Ld. Advocate for the complainant argued that on 23/04/2011 he purchased  a vehicle i.e. bus being No. WB-19E- 7481, chassis No. MPIPEAFC34END3945, engine No. NAH640629 from the authorized dealer  GNB Motors ltd. The said vehicle was hypothecated to Bangiya Gramin Bikash Bank Ltd.  He found some problem in the fuel injection pump and taken the vehicle to Shree Automotive Pvt. Ltd.  on 22/02/2012. The fuel injection pump was repaired but the O.P. has illegally demanded Rs.53,000/- as service charge during the valid warranty coverage period which is a gross deficiency as well as unfair trade practice and caused him to suffer a poor man like him a financial loss of Rs.3,000/- per day as the vehicle was not plying at the route. He filed a case law 1 (2000) CPJ 417 of Goa State Consumer Disputes Redressal Commission, Panaji between Olavo Pereira and Jaya Automobiles Pvt. Ltd. & Anr. where the Hon’ble State Commission directed the O.P. to refund the price of defective diesel engine of a taxi along with compensation.

The Ld. Advocate for the O.Ps.-1, 2 and 3 argued that the purchased vehicle was commercial as admitted by the complainant himself and the complainant is not a consumer within the meaning of the C. P. Act, 1986. It has further been argued by the O.P. that they are not the manufacturer of the said vehicle and not given any warranty. In this regard the O.P.-1 relies upon a Judgement passed by the Hon’ble Supreme Court of India which was reported in II (1995) CPJ 1 (SC) between Laxmi engineering Works Vs.  PSA Industrial Institute. The Ld. Advocate for the O.P.-2 and 3 has also filed several other case laws in support of the case including a case law of Supreme Court of India 2011 (1) CPR 1 (SC) between Birla technology Ltd. Vs. Neutral Glass & Allied Industries Ltd. ; 2011 (1) CPR ($) (SC) between Anantharam Vs. M/s Fiat India Ltd. ; 2010 (3) CPR 96 (NC) between Sudarshan Nayek Vs. Pradip Port Trust ; 2010 (3) CPR 100 (NC) between Sunil Vagel Vs. Manager-in-Charge Shivam Motors ; 2011 (1) CPR 281 (NC) between Suresh Chand Jain Vs. Service Engineer & Sales Supervisor MRF Ltd. The Ld. Advocate  of the O.P.-2 argued that they have acted as per warranty norms. The complainant has willfully filed only the “forward portion” of the “operators’ manual” and suppressed the inside contents of the said manual. It further appears   from the content of the manual provided by the O.P.-2 that in the clause No.-5 under the sub-heading “terms of warranty” the warranty terms truly states that the proprietary item like “Fuel Injection Pump which was not manufactured by Ashok Leyland in that case the warranty terms of the respective supplier will be applicable. In a letter dated 13/03/2012 the complainant was informed by the Area Service Manager of Ashok Leyland that as the vehicle has failed due to water accumulation inside the fuel injection pump and that is not a manufacturing defect and hence not covered under warranty. The manufacturer of fuel injection pump Bosch has rejected the work under warranty. The O.P.-2 has no deficiency in service.

We have considered the submission as put forward by both parties. Furthermore, on perusal of record it appears to us that the complainant has mentioned in page 2 para 3 of the petition of complaint that he purchased the vehicle for earning his livelihood which he has already mentioned in para-17 of the petition of  complaint. But on careful perusal of that complaint we do not find any such line in the said para. Instead it is written in the said para that “Apart from financial loss as mentioned above, your petitioner said vehicle has also been more damaged as it is not in running condition for which the O.P.also may be ordered to pay more compensation as  the Ld. Forum thinks it for bank loanee customers.” Moreover, in the said petition of complaint the complaint himself mentioned in page 5 para 12 that he has been incurring loss of Rs.3000/- per day as his vehicle is not plying on the permitted route as such it can easily assume that the said vehicle was used for earning huge profit. The complainant has neither mentioned in anywhere of petition of complaint nor even in affidavit that the said vehicle was purchased for maintaining exclusively for his livelihood by self employment. Moreover, the complainant has not provided any driving license or not mentioned anywhere the said Bus was plied on SD-50 route by himself or with the help of a few ( one or two family members) to maintain his livelihood as self employed as already decided by the Apex Court. The definition of the “consumer” u/s 2(1)(d) of the Act make it very clear that it does not include a person who obtainsuch goods for resale or commercial purpose unless the goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment. The Hon;ble Supreme Court has already decided that to get the benefit of Section 2(1)(d) the goods bought must be used by the buyer himself by employing himself for earning his livelihood. Relying upon the case laws filed by the complainant and the decision already taken in several earlier similar cases by the Apex Court we can say that in case of goods purchase and hired or availed for commercial purpose that is to earn profit have been taken out from the purview of the C. P. Act, 1986 after amendment. Hence, we do not consider the present complainant as a consumer as is described in the C. P. Act, 1986 u/s 2(1)(d)(i) as the goods (BUS) was not purchased for use by the complainant himself exclusively for the purpose of earning his livelihood by the self employment.

From the above all discussions we come to hold the view that the present complainant is not a consumer.

Hence, it is

Ordered

That case No. 98-2012 is not maintainable. The complainant is at liberty to file his case and get redressal from any other Court of Law.   

            Let copies be supplied to the parties as per rules.