Kerala

Idukki

CC/59/2018

Muralidharan Nair V K - Complainant(s)

Versus

Manager TVS and Sons Pvt Ltd - Opp.Party(s)

Adv.K M Sanu

11 Nov 2020

ORDER

DATE OF FILING :23/03/2018

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 11^th day of November 2020

Present :

SMT.ASAMOL P. PRESIDENT-IN-CHARGE

SRI.AMPADY K.S. MEMBER

CC NO. 59/2018

Between

Complainant : Muraleedharan Nair V.K.,

Vadasseril House,

Muniyara P.O., Muniyara,

Idukki District 685 571. (By Adv: K.M.Sanu)

And

Opposite Party : 1 . The Manager,

T.V.Sundaram Iyengar & Sons Pvt Ltd.,

M.C.Road, Mariyappalli P.O., Kottayam 686 023.

(By Adv.Shiji Joseph)

2 . The Manager,

Marottickal Auto Garrage,

Adimaly P.O.,

3 . The Manager,

Matha Auto Mobiles, Puliyanmala Road,

Kattappana P.O., Kattappana 685 508.

4 . The Managing Director,

Asok Lyland Ltd., 23 1500E,

Kallupurackal Centre,

Changanpuzha Nagar P.O., Kochi -682 033.

(By Adv: M.Gopalakrishnana Nambiar

& Adv.Joson Manavalan

M/s. Menon & Pai, Advocates, Kochi - 18)

 

O R D E R

 

SRI.AMPADY K.S., MEMBER

 

Allegations of the complainant are as under.

 

1 ) Complainant has been conducting Cocoa processing unit named V.M. Industries at Panickankudi for his livelihood. For the purpose of the unit, he purchased Boss 913 Ls

(Cont.....2)

-2-

Lorry manufactured by 4^th opposite party from the first opposite party for Rs.14,43,500/- and registered as KL-06 H 7741.

 

2 ) Vehicle was delivered on 29/08/2017 even though payment was effected by middle of August 2017. Due to change in model number shown in the invoice, registration was obtained on 14/09/2017 only.

 

3 ) Warranty was given for 36 months or 3 Lakhs Kms. Several severe complaints were occurred within a period of 6 months and while going for registration after running 150 Kms, steering nut was separated. So, the vehicle could be sent for registration after repairing the same by mechanic from Kattappana workshop. On 13/10/2017 also, same complaint happened.

 

4 ) On 28/10/2017, it was found that engine oil was mixed with water and it was informed to workshop at Kattappana and they had picked up the vehicle and found that engine is damaged. So, it was replaced on 11/11/2017.

 

5 ) After replacement of engine, several complaints like starting complaint, engine overheat, raising complaint, low pulling, mixing etc. were occurred continuously.

 

6 ) On 18/11/2017 engine became not working due to overheat. As per direction from workshop at Kattappana, vehicle was brought to there after cooling down the engine. After their inspection, it was stated that no complaint is noticed and directed to use the vehicle.

 

7 ) On 12/12/2017, starting complaint occurred at Muttukad and vehicle was stranded there for one week. Since mechanic from the nearby workshop could not solve the

(Cont.....3)

-3-

problem, company's engineer from Chennai inspected the vehicle and replaced starter motor valued Rs.45,000/-

 

8 ) Later on 10/02/2018 engine stopped due to radiator leak and since no radiator was available at Kattappana workshop, they closed the leak by using liquid turmeric. Thereafter on 07/03/2018, airpipe complaint occurred at Adimali and vehicle was stopped there. Since no parts were available, mechanic repaired it by welding it. Similar complaint occurred on the same day at Kothamangalam.

 

9 ) On the way to Theni overheating, low pulling, radiator complaint, mixing etc. found on 08/03/2018.

 

10 ) On 09/03/2018 also, engine stopped due to overheat at Adimali and as per information, company's service engineer inspected the vehicle and advised that engine is not good and engine work to be done and for that purpose, vehicle was brought to service centre.

 

11 ) Various complaints were occurred at 150 Kms, 1700 Kms etc. Even after changing the engine, complaints are common and no action was taken by opposite parties to cure the defects permanently. During the above period, opposite parties have replaced engine, radiator, starter motor etc. Even thereafter complaints continue. Vehicle is of low quality and it cannot be rectified.

 

12 ) Eventhough the vehicle is under warranty, no action is taken by opposite parties to replace it or to refund the price thereof as per his request which is deficiency in service.

 

(Cont.....4)

-4-

13 ) Complainant is entitled either to replace the vehicle or to refund of the price thereof. Besides, he is entitled to compensation also for deficiency in service of opposite parties and the difficulties suffered by him.

 

Hence he prayed for the following reliefs.

 

1 ) Direction may be given to opposite parties either to replace the vehicle or to refund price thereof to him.

 

2 ) Compensation of Rs.2 Lakhs may be allowed towards deficiency in service and for losses and hardships happened to him and

 

3 ) Cost of Rs.5000/- may be allowed.

 

The first opposite party filed written version as follows.

 

All the averments and allegations made against them in the complaint, except those that are specifically admitted or otherwise dealt with hereunder are denied as false, frivolous and vexatious. The complainant is not a “consumer” as defined under section 2(d) of Consumer Protection Act. As per the averments in the complaint, the complainant purchased and uses the vehicle for commercial use hence the complainant cannot claim the benefit of the section 2(d) of Consumer Protection Act. Hence the complaint is liable to be dismissed. The 1^st opposite party is only the dealer of the vehicle. The warranty to the vehicle is provided by the manufacturer. The relationship between the 1^st opposite party and the 4^th opposite party who is the manufacturer of the vehicle is on the basis of principal to principal. Hence the 1^st opposite party is not liable for any deficiency in service on the part of the 4^th opposite party.

 

(Cont.....5)

-5-

All the averments and allegations in para 1 and 2 of the complaint are not fully correct hence denied. It is admitted that, the complainant has purchased a commercial vehicle and registered in his name. The complainant till this date made no complaint regarding the delay in the registration of the vehicle. No such complaint was made to the 1^st opposite party and hence the complaint is liable to be dismissed. All the averments in para 3 of the complaint are not fully correct hence denied. It is admitted that on 8.11.2017, the engine assembly was replaced. On 15.12.2017 the starter motor was replaced. The complainant vehicle was repaired subsequently under warranty at 1^st opposite party's Kottayam workshop, Alangad Muvattupuzha and Matha Automobiles etc. The entire above said repair has done to the satisfaction of the complainant. The complainant has not raised any complaint regarding the quality of the repair of the vehicle. All the averment in para 8,9 and 10 also not true hence denied. All those allegations in the complaint are regarding the defects of the vehicle. It is the duty of the complainant to prove those allegations with cogent expert evidence. In this case, the complainant did not produce any expert evidence. As stated in para 3 above, all those things are covered by warranty and the 1^st opposite party no way liable for the same. Hence it is prayed that this Forum may be pleased to dismiss the complaint with costs of the 1^st opposite party.

 

The 4^th opposite party filed written version in the following lines.

 

Complaint is not maintainable either in law or on facts. It is only an abuse of the process of this Forum and the same is liable to be dismissed. The complainant has suppressed material facts in the complaint and has approached this Hon'ble Forum with unclean hands. The complaint has been filed on an experimental basis solely with an intention to harass the 4^th opposite party.

(Cont.....6)

 

-6-

At the onset, it is submitted that the complainant had purchased the vehicle for commercial purpose, hence the complainant is not a “consumer” as contemplated under the Consumer Protection Act, 1986. It is the case of the complainant that he is using the said vehicle in a Cocoa processing unit by the name 'V M industries' under his proprietorship, which ipso facto renders the above complaint inadmissible on the ground that the vehicle is being used for a commercial purpose. It is settled position of law that purchase of a car or any other goods or hiring or availing of services by a company for the purposes of the company amount to purchase for a commercial purpose, even if such a car or other goods or such services are incidentally used by the directors or employee. It is submitted that the vehicle purchased by the Complainant is “BOSS913LS”, a lorry used only for commercial purposes. It is settled position of law that when the goods are bought for commercial purposes only when such purchases satisfy the following criteria, a complaint can be entertained in the Consumer Forums; (1) the goods are used by the buyer himself, (2) exclusively for the purpose of earning his livehood, (3) by means of self-employment. In the present case, it is clear that the Complainant is the proprietor of a cocoa processing unit and he has employed the said vehicle in his factory and is not being used for the purpose of self-employment. Therefore it is submitted above complaint is liable to be dismissed.

 

All the averments and allegations raised by the complainant in the complaint against the 4^th opposite party are specifically denied except those that are expressly and specifically admitted hereunder.

 

The averments raised in paragraph 1 & 2 are factual and are not within the knowledge of the 4^th opposite party hence demand no reply.

(Cont.....7)

-7-

 

The averments raised in paragraph 3 of the complaint are baseless and hence denied. The averment that the warranty of 36 months or 3,00,000 Km was promised is incorrect and hence denied. The averment that numerous defects arose in the lorry within 6 months of its purchase is incorrect and hence denied. The averment that as the lorry was being taken for registration, after running about 150 Km the nut attached to the steering wheel came loose and therefore it became impossible to and that it was only after a mechanic had repaired the lorry, could it be taken for registration is false and hence denied. The further averment that on 13/10/2017 the same issue had occurred again is also false and hence denied.

 

The averments in paragraph 4 of the complaint are false and hence denied. The averment that on examination of the lorry on 28/10/2017, traces of water were found to be mixed with the engine oil and that the lorry was then taken to the workshop whereupon further examination conducted by the workshop revealed engine of the vehicle was completely damaged and hence on 11/11/2017, the engine was replaced is partially correct. It is submitted that on 24/10/2017, the complainant brought the vehicle to the 3^rd opposite party with an engine over heating issue, upon inspection it was found that there were some defects in the engine. The entire engine assembly was replaced free of cost under warranty.

 

The averments in paragraph 5 of the complaint is baseless and hence denied. The averment that later on the vehicle developed numerous complaints such as starting complaint, raising complaint, engine overheating, radiator complaint etc. are false and hence denied. These averments are added only to gain the sympathy of this Hon'ble Forum.

(Cont.....8)

-8-

 

The averments raised in paragraph 6 of the complaint are false and hence denied. The averment that on 18/11/17 the lorry had a breakdown due to engine overheating is false and hence denied.

 

The averments raised in paragraph 7 of the complaint are false and hence denied. The averment that on 12/12/17 the lorry had a breakdown at Muttukadu and was stranded on the road for a week is absolutely false and hence denied. The further averment that the mechanic's from the nearby workshops had been unable to repair the vehicle and it was only after an engineer of the company from Chennai had arrived and replaced the starter motor worth Rs.45,000/- that the vehicle was able to run is partially correct. It is submitted that the after the complainant registered a complaint with this opposite party, a technician from the service center of this opposite party at Kottayam went and attended the same on 14/12/2017. Upon inspection it was found that there was a wire loose in the starter motor. The said defect was cured and the same motor was put back in the vehicle. It is submitted that the starter motor had only a minor problem and the same was not replaced as alleged by the complainant.

 

The averments contained in paragraph 8 of the complaint are baseless and hence denied. The averment that on 10/02/18 the lorry had another break down due to engine overheating and that on examination a radiator leakage was found and that since no radiator was available at the 3^rd opposite party's service centre, the complainant was advised to pour turmeric powder in the radiator is absolutely bogus. When the complainant brought the vehicle to the 3^rd opposite party's service centre, it was observed that there is a leakage in the radiator. As the vehicle was still under warranty, the radiator was replaced free of cost under warranty.

(Cont.....9)

-9-

 

The averments contained in paragraph 9 of the complaint are false and hence denied. The averment that on 07/03/2018 the lorry had broken down due to air pipe complaint and that the same was fixed temporarily by welding as no replacement part was available is false and hence denied. It is submitted that since the problem with air pipe was minor, only repair was required and that is the common practice. Further allegation that on the same day while continuing the journey, the lorry broke again due to overheating and radiator complaint and that the same was fixed at Muttavatupuzha is false and hence denied.

 

The averments contained in paragraph 10 of the complaint are false and hence denied. The averment that during a trip to Thenni on 08/03/18, the lorry had once again shown the complaint of overheating, radiator complaint, pulling complaint etc. and it was informed to the workshop and they had instructed to let the engine cool down is false and hence denied.

 

The averments contained in paragraph 11 of the complaint are false and hence denied. The averment that on 09/03/18 during a trip to Patharakandi after running for about 1 Km the lorry had a breakdown due to engine overheating which was informed to the company as well as the workshop upon examination conducted by Mr.Venkitaraman, service engineer it was found that the engine of the vehicle was damaged and the vehicle was taken to the service center is partially correct. It is submitted that upon inspection of the vehicle it was found that minor repairs in the engine were required, the said defects were cured free of cost under warranty and was returned to the complainant the next day.

 

(Cont.....10)

-10-

 

The averments contained in paragraph 12 of the complaint are false and hence denied. The averment that after running for about 1700 Km the engine of the vehicle was damaged and had to be replaced is incorrect and hence denied. The further averment that after the engine replacement the vehicle continued to develop further complaints such as starting trouble, engine overheat, radiator complaint etc. and the same could not be corrected by the opposite parties is false and hence denied. The averment that the vehicle is faulty and the same cannot be mended is also false and hence denied. It is submitted that all the complaints of the complainant were attended promptly by the opposite parties and all the major defects alleged in the complaint have been fixed free of cost and under warranty.

 

The averments raised in paragraph 13 of the complaint are baseless and hence denied. It is submitted that the complainant himself admits in this paragraph that the said vehicle is being used for a commercial purpose. The averment that the complainant had not been able to use the vehicle to the extend he intended and that he had suffered financial loss due to the same is false and hence denied.

 

The averment raised in paragraph 14 of the complaint is baseless and hence denied. The averment that the vehicle is of poor quality and that the complainant had demanded the opposite parties for replacement of the faulty vehicle or for the refund of the price paid and the same had been rejected is incorrect and hence denied. The averments that this amounts to deficiency of service from the opposite parties are incorrect and hence denied.

 

 

(Cont.....11)

-11-

The averments raised in paragraph 15 of the complaint is baseless and hence denied. The averment that the complainant is entitled for replacement of the lorry or for refund of the amount paid is incorrect and hence denied. It is submitted that there is no manufacturing defect in the vehicle whatsoever as alleged by the complainant. The further averment that the opposite parties are liable to compensate the complainant for the mental agony and the financial loss he had suffered is baseless and hence denied.

 

It is submitted that there is no deficiency in service, unfair trade practice or negligence from the part of the opposite party herein. The complainant is trying to mislead this Hon'ble Forum by suppressing material facts. The claims raised by the complainant against this opposite party are without any basis. The complainant is not entitled to get any reliefs sought for in the complaint against this opposite party and the complaint is liable be dismissed with compensatory cost to this opposite party.

 

Interest of justice therefore requires that the Hon'ble Forum may be pleased to uphold the contentions of the opposite party and dismiss the complaint with costs to the opposite party.

 

Even though opposite parties 2 and 3 were represented in the initial stage, no written version was filed by them. Thy were called absent.

 

Complainant and opposite party 4 filed proof affidavit. Complainant is examined as PW1 and marked following documents.

 

1 . Ext.P1 – Copy of registration certificate dated 14/09/2017.

2 . Ext.P2 – Copy of tax invoice No. IV11080013 dated 29/08/2017 of T.V.Sundaram Iyengar & Sons Pvt.Ltd., Kottayam.

(Cont.....12)

-12-

3 . Ext.P3 – Copy of warranty issued by 4^th opposite party.

4 . Ext.C1 –Rreport of Expert Commissioner (AMVI) SRTO, Devikulam.

 

Sri. C.Venkataraman, service engineer of the 4^th opposite party is examined as DW1 and expert commissioner is examined as DW2.

 

Following documents were marked on the side of 4^th opposite party.

 

1 . Ext.R1 – Job card No.RJC- 181718 – 1529 dated 24/10/2017 of 1^st opposite party.

2 . Ext.R2 – Job card No.RJC – 18178-1935 dated 14/12/2017 of 1^st opposite party.

3 . Ext.R3 – Copy of service proforma showing job card No.WT4 49141718000076 dated 10/02/2018 of 3^rd opposite party.

4 . Ext.R4 – Job card No.WT4 125217 18000037 dated 07/03/2018.

 

No oral evidence is adduced on behalf of the first opposite party.

 

4^th opposite party filed argument notes.

 

Complainant and opposite parties 1 and 4 heard,

 

We have examined the contentions, evidences, depositions of contested parties. On a perusal of the above, following points arise for consideration.

 

1 . Whether the complainant is a “consumer” as defined in S.2 (1) (d) of CP Act, 1986?

2 . Whether the allegations of manufacturing defects, deficiency in service etc exist ?

3 . Whether the complainant is entitled to any relief as prayed for?

 

(Cont.....13)

-13-

Point No.1

Before going to the merits of the case, we have to decide the point regarding the first objection raised by the contested opposite parties that complainant is not a 'consumer' as defined in the act since he purchased a lorry for commercial purpose and it was driven by his employee and not by him and it is not for earning his livelihood by means of self employment.

 

In this connection definition of 'consumer' has to be analyzed. In S. 2(1) (d), it is stated that it does not include a person who obtains such goods for resale or for any commercial purpose. As a clarification, explanation was added from 15/03/2003 and it reads thus; for the purpose of this clause, 'commercial purpose' does not include use by a 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. On a plain reading of this clause and explanation reveals that certain tests have to be fulfilled to treat as a 'consumer'.

 

A . The purchase of goods must be for a consideration.

B . It should not be for resale or for any commercial purpose.

C . The exclusion shown in the explanation fulfilling the criteria that it is for use by him for earning his livelihood, by means of self employment.

 

Commercial purpose is not defined in the act. the ordinary meaning of 'commercial' denotes ' pertaining to commerce'. As per concise oxford dictionary 'commerce' means ' financial transactions especially buying and selling of merchandise on a large scale'. As per oxford dictionary ' commercial means ' viewed as a matter of profit and loss'.

(Cont.....14)

-14-

The word ' purposes' means, ' object which is in view or for which is made,'aim' 'an end'. The words 'commercial purposes' would, therefore, cover an undertaking the objects of which is to make a profit out of the undertaking. In the instant case as per the contentions and evidences brought on record, the complainant had purchased lorry for his business named V.M. Industries which is a cocco processing unit. Even though the complainant stated that it is for earning for livelihood he himself admitted in cross examination of 4th opposite party that he still owns nine vehicles for his business. Besides, it is also deposed that the lorry is driven by his employee. The purpose of lorry is to carry the goods purchased and sold by the complainant. On a perusal of the definition as well as the evidences it is brought to light that his business is a large scale one and the conditions in the above section and explanation are not complied with. The 4th opposite party relied on the Judgement of Hon'ble Supreme Court in Laxmi Engineering Works v/s P.S.G. Industrial Institute (1995 SCC (3)583) and also the order of Hon'ble NCDRC reported in (IV(2012)CPJ 220 NC). In the above judgement Hon'ble Supreme Court had elaborately discussed various legal and factual positions on this point and came to the conclusion that if a person purchases the goods for commercial purpose and which would not come within the ambit of exclusion shown in the explanation is not a 'consumer' as defined in the act. It was also held that whether the purchase of goods is for 'commercial purpose' is always a question of fact to be decided in the facts and circumstances of each case. Moreover, it was held that a person who buys goods and use them himself, exclusively for the purpose earning his livelihood by means of self employment is within the definition of the expression 'consumer'. In the instant case since the complainant purchased the lorry for commercial purpose and it is not used himself exclusively for the purposes of earning his lively hood, by means of self employment, we are of the considered view that the complainant would not come within the definition of 'consumer'. The above

(Cont.....15)

-15-

Judgement of Hon'ble Supreme Court and order of National Commission squarely apply to the facts of the instant case. The complainant has not produced any subsequent judgement overruling the above. In the light of above we came to the conclusion that complainant is not a 'consumer' as defined in S.2(1)(d) of CP Act 1986. So the complaint is not sustainable before this Commission. Point No.1 is answered as above.

 

Point No.2

 

Regarding point No.2 the following are found to be relevant in the facts of the case. Hence following observations are made with regard to point No.2. Even though the complainant has alleged break down of the vehicle due to various reasons on several days, he has not produced evidence for the incidents. Even though complainant produced certain photographs of the vehicle parking in service centre and also photos of parts, those were not marked. Four job cards were produced by the 4th opposite party. Even though 4th opposite party contented that vehicle has no manufacturing defects it is refuted by the report dated 24/10/2018 of expert commissioner AMVI, Devikulam marked as Ext.C1. The complainant has deposed that repair work was done by the 1st opposite party properly and the defects in the vehicle is not due to service deficiency but manufacturing defects. Many of the other allegations raised by the complainant are not proved by authenticating documents. The 4th opposite party cannot contend that vehicle had no manufacturing defects since they have admitted replacement of engine assembly, radiator and complaint regarding starter motor etc. under warranty. Exts. R1 to R4 also reveal the defects. Subsequent to change of engine assembly, complaints were alleged by complainant and it is partially admitted by the 4^th opposite party. Contention of 4^th opposite party that claim of warranty for 36 months or 3 lakhs Kms is

 

(Cont.....16)

-16-

not correct is found to be against the terms of warranty marked as Ext.P3. Engine, radiator etc. are most important parts in a vehicle. Complaints were seen occurred after running about 3000 kms onwards which shows the manufacturing defects. Since we have found that complaint is not sustainable before this Commission for reasons stated on point No.1 above, we are not making any order on this point. So, point No.2 is answered accordingly.

 

Point No.3

 

Since complaint is not sustainable before this Commission, there will be no order as to point No.3.

 

This order, however, would not preclude the legal right of the complainant to seek proper remedy from appropriate fora.

 

In the result, the complaint is dismissed.

 

Pronounced by this Commission on this the 11^th day of November 2020.

 

 

Sd/-

SRI.AMPADY K.S., MEMBER

Sd/-

SMT. ASAMOL P., PRESIDENT-IN-CHARGE

 

 

 

 

 

 

 

 

(Cont.....17)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Muraleedharan Nair V.K.

On the side of the Opposite Party :

DW1 - Venkataraman C.

DW2 - Mujeeb P.S.

Exhibits :

On the side of the Complainant :

Ext.P1 - Copy of registration certificate dated 14/09/2017.

Ext.P2 -Copy of tax invoice No. IV11080013 dated 29/08/2017 of T.V.Sundaram

Iyengar & Sons Pvt.Ltd., Kottayam.

Ext.P3 - Copy of warranty issued by 4^th opposite party.

Ext.C1 -Report of Expert Commissioner (AMVI) SRTO, Devikulam.

On the side of the Opposite Party :

Ext.R1 – Job card No.RJC- 181718 – 1529 dated 24/10/2017 of 1^st opposite party.

Ext.R2 – Job card No.RJC – 18178-1935 dated 14/12/2017 of 1^st opposite party.

Ext.R3 – Copy of service proforma showing job card No.WT4 49141718000076 dated

10/02/2018 of 3^rd opposite party.

Ext.R4 – Job card No.WT4 125217 18000037 dated 07/03/2018.

 

 

 

Forwarded by Order,

 

 

 

SENIOR SUPERINTENDENT