BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 211/2001 Filed on 15.05.2001

Dated : 31.03.2009

Complainant:

Sreelatha Mohan, Vijayalam, N.P1, 183, Santhivila, Nemom, Thiruvananthapuram.

(By adv. Santhivila M.P. Sasidharan Nair)

Opposite parties:

1. The Managing Director, M/s T.V. Sundaram Iyengar & Sons Ltd., T.V.S. Buildings, 7 B, West Veli Street, Madurai, Tamil Nadu.

2. P.S. Aswani Kumar, Deputy Sales Manager, T.V. Sundaram Iyengar & Sons Ltd., Neeramankara, Kaimanam P.O, Thiruvananthapuram.

(By adv. Alex Varghese & P. Rajmohan)

Addl. Opposite parties:

3. The Managing Director, Ind Auto Ltd., Mumbai.

4. The Assistant Commissioner, Central Excise, Ernakulam.

This O.P having been heard on 16.02.2009, the Forum on 31.03.2009 delivered the following:

ORDER

SMT. S.K.SREELA: MEMBER

The brief facts of the case are as follows: The complainant remitted the value for one Siena car intended to be used as a taxi car and all the relevant records for the claim under taxi quota were submitted to the opposite parties on 23.06.2000. But later the complainant was informed by the opposite parties that he taxi quota benefit has been rejected. As per the terms and conditions, the complainant has to get more than Rs. 80,000/- from the oposite parties as taxi quota benefit. The opposite parties have not submitted the claim before the concerned authority in time which amounts to unfair trade practice and deficiency in service on the part of the opposite parties. Hence this complaint for redressal of his grievances.

Opposite parties 1 and 2 filed their version contending as follows: The complaint is not maintainable on the grounds that the complaint is for refund of excise duty applicable to taxi vehicles which is not a consumer dispute and the complainant is not a consumer as she has not hired or availed the service of the opposite parties for consideration. She purchased a Fiat Siena car through the 2^nd opposite party and subsequently the car was registered as taxi and the documents like taxi permit etc. were forwarded to these opposite parties for being forwarded to the vehicle manufacturer to claim excise duty refund from the appropriate Central Excise Department of Govt. of India. These documents were immediately forwarded to the vehicle manufacturer. As dealer these opposite parties have no power either to grant or reject a claim made by an applicant. These opposite parties have no dealing or connection with the concerned Government Department. No contract or agreement was reached between the complainant and these opposite parties to make refund of excise duty. Forwarding the documents delivered by the complainant to the manufacturer was a free and gratutious service. Rejection of claim as advised by the vehicle manufacturer was duly intimated to the complainant. While placing order or while taking delivery of the car the complainant did not disclose that she intended to make use of the car as taxi. The complainant neither requested for refund of excise duty on those occasions nor these opposite parties promised the said benefit. These opposite parties came to know of complainant's intention to make use of the car as taxi and her claim for excise duty refund only when she delivered the documents on 23.06.2000. Claim for refund of excise duty is a subsequent event unconnected with the sale. These opposite parties have no legal obligation to refund excise duty to the complainant. These opposite parties deny existence of any terms and conditions obliging them to refund excise duty to the complainant. The quantum of excise duty claimed is disputed. The complainant has not suffered any loss or damage. There is no wilful negligence or latches on the part of these opposite parties as alleged. Hence prayed for dismissal of the complaint.

Opposite parties 3 & 4 remain exparte.

Both parties have filed affidavit. Complainant has been examined as PW1 and marked Exts. P1 to P10.

The issues that would arise for consideration are:-

1. Whether the complaint is maintainable before this Forum?

2. Whether there is any deficiency in service on the part of the opposite parties?

3. Reliefs and costs.

Points (i) to (iii):- The first aspect for consideration is that whether the complainant comes under the purview of consumer as per the Consumer Protection Act. The allegation of the 1^st and 2^nd opposite parties are that she has not hired the service of the opposite parties for consideration. The 1^st and 2^nd opposite parties have further contended that they are providing free and gratutious service and hence it is not a service within the meaning of Sec. 2(1)(o) of Consumer Protection Act. Admittedly, the complainant has purchased the Siena car from the 2^nd opposite party and these opposite parties are the dealers. These opposite parties have sold the car to the complainant and hence it cannot evade liability on the ground that their service has not been hired and there is no contract or agreement. These opposite parties are getting commission and benefited for the sale of such cars. Hence the complaint could not be found as not maintainable on this ground.

The complainant has alleged that she had remitted the value for one Siena car intended to be used as a taxi car and all the relevant records relating to the said car were submitted to the opposite parties on 23.06.2000. The car is registered on 15.06.2000. But at this juncture the aspect to be looked into is whether this complainant can be considered as a consumer. The complainant has purchased the vehicle, as per the complaint, for being used as a taxi. Nowhere in the complaint is there a whisper with regard to the use of the same for eking her livelihood. The car is registered in the name of the complainant. The complainant has not produced any records to corroborate that she has purchased the same for earning her livelihood. The complainant has purchased the same for commercial purpose. There is no evidence before this Forum to show that the complainant has a valid driving license to drive the same or to prove that she has purchased the same for earning her livelihood. As per Sec. 2 (d)(i) & (ii) “consumer” means any person who –

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

2. [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised or under any system of deferred payment, when such services availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];

   [Explanation: 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 purpose of earning his livelihood, by means of self-employment;]

Hence in the absence of any records to substantiate that the complainant has purchased the car for the purposes of earning her livelihood by means of self-employment, we find that the complainant does not come under the definition of consumer as enunciated in the Consumer Protection Act and this Forum has no jurisdiction to entertain the complaint.

In the light of the above, the other points require no consideration.

In the result, the complaint is dismissed, with liberty to the complainant to seek her remedy before appropriate authority.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 31^st March 2009.

S.K.SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

O.P. No. 211/2001

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Sreelatha

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of advocate notice dated 03.04.2001.

P2 - Copy of receipts dated 03.04.2001.

P3 - Copy of acknowledgement card dated 04.04.2001.

P4 - Photocopy of reply notice dated 24.04.2001.

P5 - Copy of R.C Book certificate of registration dated

21.06.2003

P6 - Letter dated 26.06.2000 issued by opposite party.

P7 - Invoice dated 14.06.2000 of document No. BA 0235.

P8 - Sundry Debit Note dated 23.06.2000 of document

No.000104

P9 - Photocopy of permit dated 22.06.2000.

P10 - Copy of letter issued by the complainant.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT