KERALA STATE CONSUMER  DISPUTES REDRESSAL COMMISSION  SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

APPEAL   NO. 541/2015

ORDER   DATED. 12-12-2017

PRESENT

HON’BLE JUSTICE SRI.S.S. SATHEESA CHANDRAN: PRESIDENT

SRI.V.V.JOSE : MEMBER

APPELLANT :

          K.G. Hariharan, Kadavath House,

          Thanthonnithuruthu, Mulavukadu P.O,

          Ernakulam, Pin. 682 002.

          (By Adv. K.G. Hariharan)

          V/S                                                  

RESPONDENTS

1. Managing Director,

M/s. Piaggio vehicle pvt.ltd,

101 B/ 102, Phoenix, Bund Garden Road,

Opp. Residency club, pune. 411001.

(By Adv. Binu Mathew)

2. M/s. SML Motors ( 4 wheeler division)

NH Bye pass, Opp. Dr. Joy’s Hospital,

Vyttila, Kochi- 682 019.

(By Adv. B.S. Suresh kumar)

ORDER

HON’BLEJUSTICE SRI.S.S. SATHEESA CHANDRAN: PRESIDENT

          Complainant is the appellant.  His complaint numbered as 594 of 2011 on the file of Consumer Disputes Redressal Forum, Ernakulam, for short, the District Forum, was dismissed as not maintainable.  Aggrieved, complainant has preferred this appeal.

2.      The case of the complainant, in brief, is thus : He purchased a APE Truck 4 wheeler truck from the 2^nd opposite party paying a sum of Rs.2,64,266/- for earning his livelihood by means of self employment.  Purchase of vehicle, according to him, was made   availing a loan from a finance company with liability to discharge that  loan in equal monthly instalments of Rs.8720/-.  Two weeks after purchase, according to complainant, the vehicle suffered break down during journey .  Vehicle was taken to the service centre of the 2^nd opposite party and,  thereupon,

                                                                   (3)

defect was noticed in its fuel pump.  Complainant alleged that abrupt stopping and starting trouble of the vehicle continued on different occasions and he had to produce the vehicle before the service centre of 2^nd opposite party for repair on all those occasions.  He had to file a police complaint on one occasion to get back the vehicle,  is his further case.  When the vehicle covered 3600 kms., the defects already noticed caused a complete break down and, then,  on production for repair  self motor of the vehicle was removed by 2^nd opposite party, according to   complainant.  Alleging that the vehicle suffered from manufacturing defect, complainant filed the complaint claiming refund of the price paid with compensation from the opposite parties.  Opposite parties filed separate applications disputing the case of complainant.  Both opposite parties contended that the complaint is not maintainable asserting that the complainant was not a consumer and that he had purchased the vehicle for commercial purpose.  Allegations raised by the complainant over manufacturing defects  over  the vehicle and violation of service conditions alleged against   2^nd opposite party were denied by them. 

                                                                   (4)

They resisted the claim of the complainant contending that the case set up by the complainant alleging manufacturing defect of the vehicle was false.

3.      Evidence consisted of the testimony of   complainant  as Pw1 and also another witness, an expert commissioner, who prepared a report over the vehicle as PW-2,  and exhibit A1 to A4.  No  evidence  was let in by the opposite parties.  The Forum below, accepting the  contention  of   opposite parties  concluded that the complaint is not maintainable holding that the complainant had purchased the vehicle for commercial purpose.

4.      We heard counsel on both sides.  The only question gone into by the lower forum was over the   maintainability  of the complaint, leaving aside the other issues raised in the case.  In view of  finding entered that  complaint  was not  maintainable  other issues involved in the case were not gone into or examined by the lower forum.  In case the finding reached by the lower forum on the question of maintainability is not found to be sustainable, then,  the case has to be remitted back before the

                                                              (5)

lower forum for appropriate finding on other issues involved in this case.  Complainant has specifically alleged in his complaint that he had purchased the vehicle for carrying out self employment business for eking out his livelihood.  He has also  asserted in his evidence in support of the case so presented in his complaint.  During cross examination of the complainant, who was examined as PW-1, he had answered in negative to a question whether he possessed a driving licence.  The lower forum on the basis of the above answer given during cross examination has  farmed   conclusion that he had engaged two drivers to ply the vehicle owned by him for the purpose of collection of oil from various outlets to use it for commercial usage.  Complainant in his evidence has specifically stated that previously he was hiring a transport vehicle for collection of oil from various outlets.  In connection with his business i.e. collection of oil from various outlets, he purchased a vehicle and employed two drivers to drive that vehicle.  That does not indicate that he was carrying out a separate business unconnected with his self employment business for eking out his livelihood. So the

                                                          (6)

primary question is whether he was carrying out self employment business of collection of oil for eking out his livelihood.  Though the opposite parties have challenged the status of the complainant as a consumer, they have not let in any evidence to show that he is having any business other than the business of collection of oil, which was claimed by him as self employment for eking out his livelihood.  Proceedings in the consumer forum  are  not depended  upon elaborate pleadings as in a civil case and even   right of cross examination can be curtailed.  Where  complainant has let in evidence in support of his  case  that he was doing self employment business for eking out his livelihood and proved his status as a consumer with facts and circumstances disclosing  prima facie that he had purchased the vehicle for the purpose of collection of oil,  his business activity, it goes without saying that the forum below went wrong in holding that the complainant is not a consumer .   He had purchased the vehicle for collection of oil and it was a commercial purpose is the basis for the forum to come to such a wrong and erroneous conclusion.  Appreciating the evidence, we hold that the

                                                                   (7)

complaint is maintainable and the finding of the forum below that the complaint is not maintainable   is erroneous and  it is  set aside.  The lower forum is directed to take back the complaint on its file and dispose it on the basis of   available evidence within two months from the date of receipt of the records from this Commission.

          Appeal is allowed and the case is remitted for fresh consideration.  Both parties are directed to suffer their cost.          

JUSTICE  S.S. SATHEESA CHANDRAN:PRESIDENT

V.V.JOSE                : MEMBER

Rj/-ekm