BEFORE THE ADDITIONAL BENCH OF A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.F.A.No.518/2008 AGAINST C.C.No.60/2007 DISTRICT FORUM, KADAPA.
Between:
1. The Manager,
Customer Assistance Center,
TATA Motors Ltd., 507
Gyan Sadhana College Service Road,
Thane-400 604 (Maharastra State)
2. The Regional Manager,
Customer Care,
TATA Motors Ltd., 507, Oxford House,
4th floor, Rustom Bagh Estate, Air Port
Road, Bangalore-560 017.
3. The Area Service Manager
TATA Motors Ltd., Area Service
Office, 2nd floor, C-Block,
Surya Towers, 104, S.P.Road,
Secunderabad.
All represented by Divisional Manager (Legal)
Mr.Bipin S.Palekar
Bombay House, 24, Homi Mody Street,
Mumbai-400 001. Appellants/
Opp.parties 1 to 3
And
1. P.Khadar Basha,
S/o.Khasim Sahib
Aged about 38 years,
R/o.D.No.4/810-C,
Mahatmanagar, Yerraguntala,
Post and Mandal, Kadapa District. Respondent/
Complainant
2. The Authorized Dealer
TATA Motors Ltd,
MERU Auto Mobile Private Ltd.,
N.H.7, Santhoshnagar, Hyderabad Road,
Kurnool.
3. The Authroized Dealer
Meru Auto Mobiles,
Tata Motors Ltd.,
Almaspeta, Kurnool.
4. The Manager, Shriram Transport,
Finance Company Ltd.,
Near Apsara Theatre,
Kadapa. Respondents/ Opp.parties 4 to 6
Counsel for the Appellants: M/s Shireen Sethna Baria
Counsel for the Respondents: R1-served
R2 and R3-Mr.K.Venugopal
R4 M/s.M.V.R.Suresh
QUORUM: SRI SYED ABDULLAH, MEMBER.
AND
SRI R.LAKSHMINARASIMHA RAO MEMBER
.
TUESDAY, THE TWENTY EIGHTH DAY OF DECEMBER,
TWO THOUSAND TEN
(As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The opposite parties no.1 to 3 have filed the appeal against the order dated 7-02-2008 passed by the District Forum in C.C.No.60 of 2007 whereby they were directed to pay an amount of Rs.28,559/- towards the repairs and replacement of clutch assembly and other parts of lorry during the warranty period and Rs.10,000/- towards compensation for mental agony and Rs.2,000/- towards costs.
2. The facts of the case are that the complainant having been satisfied with the performance of Lorry of Model No. Tata LPT 2515 C EX , purchased on 20-09-2006 another Lorry of the new version, TATA LPT 2518 C EX through the respondent no.4. The cost of the chassis of the vehicle is Rs.10,55,000/- and the respondent no.1 had incurred an amount of Rs.1,60,000/- towards body building charges and a sum of Rs.490,000/- towards insurance premium and registration charges. The vehicle was assigned registration number AP 04 8199. The respondent no.4 had given warranty for a period for a period of 18 months. The odometer reading of the vehicle at the time of the delivery was 836 kms. The respondent no.1 had taken the vehicle for service on 16-10-2006, 03-11-2006 and 02-12-2006within the odometer reading of 18,295. On 07-01-2007 with the odometer reading of 27,321, the vehicle posed problem in Chennai where the authorized service centre of the appellants, V.S.T, Auto Parts Pvt.Ltd has examined the vehicle and informed the respondent no.1 that the Clutch Disc Assembly and Clutch Cover Assembly of the vehicle were damaged and required to be replaced. The service centre stated to have charged the respondent no.1 an amount of Rs.13,617/- despite protest said to have been raised by him on the premise that the warrant period has not been expired. Again at the odometer reading of 36,489, the vehicle posed the problem and when it is taken to the respondent no.4, it has said to have charged an amount of Rs. 14,942/- for replacement of Clutch Disc Assembly and Clutch Cover Assembly, Hex Bolt and Clutch Pressure Plate etc., despite protest said to have been raised by the respondent no.1. The vehicle was stated to have constantly posed the problem and the respondent no.1 said to have kept the vehicle idle and had sought for refund of the cost of the Lorry and expenses that he had incurred there for or in the alternative , replacement of the vehicle with a vehicle of 2515 C EX model.
3. The appellants resisted the claim on the ground of jurisdiction that the respondent no.1 had purchased the vehicle from the respondent no.4 at Kurnool and the respondent no.5 was impleaded as proforma party for the purpose of making out a case of jurisdiction. It is submitted that the respondent no.1 has been running numerous Lorries on commercial activity for profit. A vehicle with manufacturing defect cannot cover a distance of 42,930 kms within a period of 6 months. The problem mentioned in the complaint in regard to the vehicle is a common problem posed due to bad driving of the vehicle. The respondent no.1 had not complained of any defect or problem of the vehicle at anytime to the appellants. Except the wearing out of the clutch the vehicle had not posed any problem. The terms of the warranty does not provide for normal wear and tear of the vehicle. The warranty does not cover the parts of the vehicle not manufactured by the appellants. Job card dated 16-10-2006 shows that there is no attached complaint about the malfunctioning of any other part of the vehicle. The meter reading of the vehicle shows the usage of the vehicle. The averments of the complaint testify the reputation of the appellants in India and all over the world. The warranty was provided for service of the vehicle and not for those parts not manufactured by the appellants. The complaints were promptly attended as per the policy of the company and the respondent no.1 having taken back the vehicle has been extensively using it.
4. The respondent no.4 filed counter contending that it is not manufacturer or seller of the vehicle as also that it has not issued any warranty to the respondent no.1. On request of the respondent no.1, the respondent no.6 had financed the vehicle. It is submitted that there was no contract of sale of the vehicle between the respondent no.1 and the respondent no.4. The respondent no.4 is not a necessary party to the proceedings.
5. The complainant/respondent no.1 has filed his affidavit and the documents ExA1 to A15 were marked. On behalf of the appellants, the divisional manager (law) of the appellant no.1 company has filed his affidavit and got marked ExB1 to B5.
6. The District Forum after considering the evidence placed on record, allowed the complaint in part directing opposite parties 1 to 4 to jointly and severally pay Rs.28,559/- to the complainant towards repair and replacement of clutch assembly and other parts of the lorry during the warranty period together with compensation of Rs.10,000/- and costs of Rs.2,000/-. The complaint against the opposite parties 5 and 6 was dismissed.
7. Aggrieved by the order, the appellants/opposite parties 1 to 3 filed this appeal contending that the respondent/complainant no.1 is not a consumer within the meaning of the Section 2(1)(d) of the Consumer Protection Act and that the appellants cannot be held responsible for normal wear and tear of the parts or damage due to negligent driving or improper maintenance of the vehicle.
8. The appellants and the respondent no.4 have filed written arguments.
9. The points for consideration are:
1. Whether the respondent no.1/complainant is a consumer within the
meaning of Section 2(1)(d) of the C.P.Act?
2. Whether there was deficiency of service on the part of the
appellants?
3. 1To what relief?
10. POINT NO1: The respondent no.1 purchased Lorry of Tata LPT 2518 C make on 20-09-2006 from the appellants through the respondent no.4 who rendered financial assistance to the respondent no.1.The appellants had raised objection in regard to the territorial jurisdiction and jurisdiction as to the subject matter. The appellants have not focused nor pressed into service in the appeal the objection as to the territorial jurisdiction of the District Forum. In regard to the objection as to the subject matter, the appellants submitted in the appeal as follows:
“The respondent no.1 owns lorries and is plying them for commercial gain and for profit. The respondent no.1 has no where stated that he is plying the vehicle himself for his own livelihood. There being no statement from the respondent no.1 of his personal usage, it is evident that the respondent no.1 is using the vehicle for commercial purpose and having the same driven by hiring staff and drivers and utilized by a transport company”
11. It is contended that the respondent no.1 is not a consumer under the consumer protection act and his case does not fall under the exception and relied upon the decision of the Hon’ble Supreme Court in “Laxmi Engineering Works vs P.S.G. Industrial Institute” reported in II (1995) CPJ 1(SC). It is submitted by the respondent no.1 that though the vehicle was purchased and used for commercial purpose, as the vehicle posed problem within the warranty period , the respondent no.1 is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. Reliance is placed on the decision of the National Commission reported in “II2007 CPJ 371 NC”.
Section 2(1)(d) of the Consumer Protection Act reads as under:
“consumer means any person who-
i) 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 ------
12. It is not disputed the respondent no.1 has numerous lorries and he has been plying them for commercial purpose and deriving profit there from. In a decision reported in 2008 NCJ 228 (NC) in DELHI TRANSPORT CORPORATION EMPLOYEES PROVIDENT FUND TRUST v. ORISSA SMALL INDUSTRIES & ANR. wherein it was held that:
‘Unless the service is hired or availed of for earning livelihood by means
of self employment, it will fall within the meaning of “Commercial
Activity” and hence a person of that service cannot be said to be a
‘Consumer’.
13. As such the respondent no.1 cannot be considered as consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. The complaint is not maintainable. The point is answered against the respondent no.1.
14. POINT NO2: In view of the discussion and holding the complaint not maintainable , there need not be any discussion under this point.
15. POINT NO3: In the result, the appeal is allowed and the order of the District Forum is set aside. Consequently, the complaint is dismissed. There shall be no order as to costs.
MEMBER.
MEMBER.
Dt.28-12-2010
JM
