BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 23^rd day of December 2016

Filed on : 19-05-2014

PRESENT:

Shri. Cherian K. Kuriakose, President.

Smt. Beena Kumari V.K. Member.

CC.No.366/2014

Between

T.S. Santhosh, : Complainant

Thandassery house, (By Adv. Tom Joseph, Court

Keezhillam P.O., Road, Muvattupuzha)

Perumbavoor-683 541.

And

1. Managing Director, : Opposite parties

M/s. Mahindra Construction (1^st O.P. By Adv. Denu Joseph,

Equipment, Mahindra & Mahindra, S.G. Chancery Chambers,

Gateway building, Kalabhavan road, Cochin-18)

Appollo Bunder, Mumbai-400001.

2. M/s. Keracon Equipments Pvt. Ltd., (2^nd O.P. By Adv. Lal K. Joseph,

Pala Road, Ettumannor, M/s. Sheriff Associates,41/318C

Kottayam. Kolliyil buildings, Near

Mullasery Canal, Chittor road,

Kochi-682 011. )

O R D E R

Cherian K. Kuriakose, President.

1. Complainant's case

1. 2. The complainant is a quarry worker engaged in the production of laterite stone. The complainant purchased a laterite stone cutting machine for earning his livelihood by means of self employment, on 16-08-2013. Out of the total price of the machine, which was Rs. 24,37,665/-, the complainant paid Rs. 5,90,000/- by cash. The 2^nd opposite party arranged a loan for the balace amount from M/s. Mahindra and Mahindra financial services. The complainant had to pay Rs. 58,100/- towards monthly repayment. He was operating the machine with the help of his nephew one Mr. Manu. Meanwhile, the machine started showing defects by recurring breakage of boom-ram, bucket ram, loader arms seal of the main hose from hydrolic oil tank to the pump, excavator hoses, etc. The machine was operated only for 1902 hours so far. Despite continuous repairs done by the 2^nd opposite party on several occasions, the machine continue to be out of order from 13-09-2013 and thereafter. Nobody was attending the telephone calls regarding the complaints. The 2^nd opposite party had closed their office in Cochin and therefore the mandatory periodical service could not be carried out. The 2^nd opposite party had failed to supply the engine oil also. The recurring defects of the earth moving machine supplied by the opposite party was due to manufacturing defects. The complainant has been put to substantial loss due to the deficient service provided by the opposite parties. The complainant is entitled to get Rs. 20 lakhs towards compensation and costs of the proceedings.

   3. The complaint was taken on file as CC 366/2014 and notices were issued to the opposite parties M./s. Mahindra construction Equipments the manufacturer and M/s. Keracone Equipments pvt. Ltd., the dealer-cum-service provider. 1^st opposite party appeared and filed its version. The 2^nd opposite party though appeared, did not file any version.

   4. Version of 1^st opposite party

   5. The 1^st opposite party filed version contending that there was no privity of contract between the complainant and the opposite party. The complainant is not a consumer and the question of maintainability has to be raised as the 1^st issue. The complainant is not a quarry worker as alleged. He is a large scale laterite stone manufacturer having several units with large number of employees working under him. The allegation regarding the manufacturing defects for the machine is incorrect. There was no recurring defects for the machine as alleged. The 2^nd opposite party is having all facilities to provide service to the customers. The complaint is therefore to be dismissed.

   6. The evidence in this case consists of the oral evidence of PWs 1 and 2 and Exbts. A1, A2 and C1. The opposite parties did not adduce any evidence. Heard both sides.

1. 2. The following issues were settled for consideration

   3. Issues

i. Whether the complainant is a consumer coming within the Section 2 (1) (d) of the Consumer Protection Act?

ii. If so, has the complainant proved that there was any deficiency in service on the part of the opposite parties?

iii. Reliefs and costs.

1. 2. Issue No. i. The main contention raised by the 1^st opposite party is that the complainant had purchased the machine for commercial purposes. The complainant had specifically pleaded that the machine had purchased for earning his livelihood by means of self employment. According to the learned counsel for the complainant the dictum laid down by the Hon'ble National Consumer Disputes Redressal Commission in Action Construction Company Vs. Balu (iv (2012) CPJ 245(NC)) and Jayem Impex Vs. Hitesh Bai (1 (2016) CPJ 677 (NC) ) are squarely applicable to the facts of this case to hold that a complaint is maintainable as the complainant is a consumer even if he had employed a driver for running the vehicle. The complainant had relied on two documents which are marked as Exbts. A1 and A2 in this case. Exbt. A1 is the invoice issued in the name of the complainant Shri. Santhosh V.A. on 16-08-2013 for the purchase of Mahindra Earthmaster Industrial Tyre for an amount of Rs. 24,37,665/. Exbt. A2 is the registration certificate assigned to the vehicle in the name of the complainant. The vehicle was assigned with the Reg. No. KL-40-J-975.

   3. During Cross-examination the complainant had admitted that he did not have a driving license to drive the vehicle purchased as Exbt. A1. He also admitted that his nephew Shri. Manu, who was said to have been operating the vehicle did not produce his driving license before the Forum. He also admitted that he has a Nisan Lorry of his own to transport the Laterite Stone. On going through the evidence adduced in this case and on hearing the arguments of the learned counsel who appeared for the complainant we are not inclined to accept the case of the complainant that he had purchased the machine in question by spending an amount of Rs. 5,90,000/- by cash and by paying a monthly instalments of Rs. 58,100/- for the loan repayment, for the purpose of earning his livelihood. The evidence discloses that the machine purchased was for industrial usage to use it as commercially. We do not find that this is merely a case where the complainant had purchased a vehicle and employed only one person to run the same. The complainant is using not only this machine but also a lorry and other paraphernalia to run the business to achieve profits and it is not the case of earning the livelihood. Consequently, the complainant is found to be not a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act . The issue is therefore found against the complainant.

   4. Issue No. ii. Having found issue No. 1 against the complainant, the question of consideration of 2^nd issue does not arise.

   5. Issue No. iii. Having found that the complainant is not a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act we find that, the complainant is not entitled to file a consumer complaint and therefore the complaint deserves dismissal. Accordingly, the complaint is dismissed. However, in the circumstance of the case, we do not intent to pass any order as to costs.

Pronounced in the open Forum on this the 23^rd day of December 2016.

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

APPENDIX

Complainants Exhibits

Exbt. A1 : Copy of bill dt. 16-08-2013

A2 : Copy of certificate of registration

C1 : Commission report

Opposite party's Exhibits: : Nil

Depositions:

PW1 : T.S. Santhosh

PW2 : P.J. James

Copy of order despatched on:

By Post: By Hand: