Delhi

West Delhi

CC/09/79

INDER MOHAN JAIN - Complainant(s)

Versus

M/s Auto Vikas Sales & Service Pvt.Ltd. - Opp.Party(s)

22 Nov 2016

ORDER

CONSUMER DISPUTES REDRESSAL FORUM (WEST)

GOVERNMENT OF NCT OF DELHI

150-151, Community Centre, C-Block, JanakPuri, New Delhi – 110058        

 

                                                                                                             Date of institution:24.1.2009

Complaint case No.79/2009                                                                                               Date of Order:22 11.16

 

 

In the matter of

 

Sh. Inder Mohan Jain,

Proprietor, M/s Shah Enterprises,

5911/9 1^st Floor,

Swadeshi Market,

Sadar Bazar,Delhi.                                                                                                 COMPLAINANT

 

VERSUS

 

M/s Auto Vikas Sales & Service Pvt.Ltd.

12A, Rama Road, Shivaji Marg,

New Delhi-15.                                                                                                         OPPOSITE PARTY-1

 

M/s General Motors India Ltd.

Chanderpura Industrial Estate,

District Panch Mahal,

Hallol, Gujrat-385001.                                                                                         OPPOSITE PARTY-2

 

 

ORDER

R.S. BAGRI, PRESIDENT

 

            The present complaint is filed by Inder Mohan Jain named above herein complainant u/s 12 of the Consumer Protection Act for directions to the Opposite Parties to replace a car bearing registration No.DL 4CAD 4441 with new car of the same model and make or refund price of the car and a sum of Rs.10,000/- extra charges with interest at  the rate of 25% per annum and Rs.1,00,000/- as damages.

 

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            Briefly version of the complainant  is that the complainant on 31.7.08 purchased car bearing registration No.DL4CAD 4441 make ChevroletSpark base model from Opposite Party-1 manfactured by Opposite Party-2 for sale consideration of Rs.2,80,700/-.  The complainant took loan of Rs.2,11,740/- from Kotak Mahindra Prime Ltd.and paid a sum of Rs.78960/- from his pocket.  The Opposite Party-1 quoted sale price of the car Rs.2,80,700/- and charged Rs.10,000/- extra.  The complainant took delivery of car on 31.7.8.   The car was not running properly and was making noise from the rear portion .  On 1.8.08 the complainant visited Opposite Party-1 and notified the defect.  On the same day the car was handed over to Opposite Party-1 for repairs and bumper painting with delivery date 9.8.08.

 

            On 9.8.08, the complainant took delivery of the car with bubbles on painted bumper and on way to home he noticed same problem of rear noise.  On 10.8.08 the complainant again visited the Opposite Party-1,  delivered the car to them for repairs and rectification. On 2.9.08 the complainant was called by Opposite Party-1 at their workshop and when he inspected the car he found dents on the doors and cracks  as well as bubbles of paint on the bumper.  The complainant refused to take delivery of the car without repair.  He was again called by Opposite Party-1 on 23.10.08.  He inspected the car but there was no improvement in the condition of the car.  The complainant lodged complaint with Opposite Party-2.  But the  Opposite Parties neither repaired the car nor removed the defects and returned the car.  Since then the car is parked with Opposite Party-1.  There is manufacturing defect in the car.  The Opposite Parties adopted unfair trade practice and there is also deficiency in seravice on part of Opposite Parties.  Hence, the present complaint.  

 

            Notices of the complaint were sent to the Opposite Parties.  The Opposite Party-1 filed reply while admitting sale of the car but asserted that there is no defect what to speak of manufacturing defect in the car and Opposite Parties provided all services to the

 

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complainant.   He was intimated but the complainant intentionally did not take delivery of the car. 

 

            The Opposite Party-2 filed separate reply while contesting the complaint and raising preliminary objections that the complaint is false and frivolous, there is and was no  noise in the rear side of the car.  The car is purchased by M/s Shah Enterprises for commercial purposes.  Therefore, the complainant  is not a consumer under the Consumer Protection Act and this Forum has no jurisdiction to entertain and try the complaint.  

 

            However, on merits, it is admitted that the car No.DL4CAD 444a1 was purchased by M/s Shah Enterprises  and  delivery of the car was given on 31.7.08.  The car was brought by the complainant at workshop of Opposite Party-1 for painting of bumpers which is sufficient to show that at the  time of taking delivery the car was satisfactorily inspected by the complainant.  The performance of the car was very good and after painting the bumpers the complainant was informed. But the complainant did not take delivery of the car for the reasons best known to the complainant.   Since then the car is parked in workshop of the Opposite Party-1. They further asserted that there is no manufacturing defect in the car and there is no deficiency of service on the part of Opposite Parties.  The Opposite Party-2 once again prayed or dismissal of the complaint.

 

            The complainant  filed rejoinders to the replies of the Opposite Parties1 and 2 while   controverting the stand taken by the Opposite Parties in their respective replies while reiterating his stand taken in the complaint.  

 

            The parties were asked to lead evidence by way of affidavit.  The complainant  filed affidavit dated  26.10.09, relied upon copy of invoice No.R00721 dated 31.7.08, receipt dated 15.7.08, two receipts dated 31.7.08, receipt No. R208157 and receipt No.28977 dated 5.8.08 , copy of insurance policy ,  vehicle delivery card, job sheet dated 10.8.08, copy of

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various  letters dated 31.7.08 ,8.9.08,  13.9.08   , 18.9.08,  25.9.08 , 13.10.08 and  30.10.08.  The complainant deposed that he purchased the car in dispute for his personal use which was financed from Kotak Mahindra Prime Ltd. The car was having manufacturing defect.  He again reiterated the stand taken in the complaint.  

 

The Opposite Party-1 tendered affidavit of Sh. V. Sathya Narayanan dated 5.3.10   Wherein he deposed that there was no manufacturing defect in the vehicle and the same is running smoothly and was in good condition.  But due to mishandling of the car by  the complainant scratches and dents appeared  on the vehicle.  The Opposite Party-2 filed affidavit of Sh. Yudhvir Singh date 29.4.2010.  He deposed that the vehicle was sold to Shah Enterprises which is a commercial entity and running business for commercial purpose and the complainant  is not a consumer under the provisions of the Consumer Protection Act. He has controverted the stand taken by the complainant in his complaint and reiterated their stand taken in written statement.  They have also deposed that there is no manufacturing defect in the car and there is no deficiency in service on the part of Opposite Parties. 

 

            We have heard Ld. counsel for the parties and have  gone  through the material placed on record carefully  and thoroughly.

 

            After having heard both sides at length and going through the material on record specially the loan disbursement letter, invoice and registration certification of the car, it can be easily said that a sum of Rs. 211740/- out of total sale consideration Rs.2,80,700/- is taken loan in the name of M/s Shah Enterprises and it can be easily inferred that the major part of the sale consideration is paid by M/s Shah Enterprises.  There is no document on record to show  that the remaining sale consideration of Rs.78,950/- is paid by the complainant.  Therefore, it can be easily inferred that this part of sale consideration is paid by  M/s Shah Enterprises.   Hence this Forum is of the opinion that the complainant  failed

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to show that he paid the sale consideration from his own resources and he is  owner of the car whereas it can be easily said that the sale amount is paid by M/s Shah Enterprises and same is the owner of the car.   Which is a commercial entity and the car is used  for commercial purpose.  

 

            In similar situation Honb’le National Commission in case law reported as M/s Lohia Starlinger Ltd. Vs Zenith  Computers Ltd.  1991 CPJ(I)145 held that  counsel for complainant admitted that the cost of the computer system formed part of the assets in the balance sheet of the complainant company, that the costs of  maintenance and operation and depreciation of the computer system were charged to the profit and loss account of the complainant company, and that the expenses on account of the depreciation operation and maintenance form part of the overhead costs of the products manufactured and sold by the complainant company.   This leaves no room for doubt whatsoever that the computer system was and is being used for commercial purpose and had been acquired as such.

 The complainant company had bought the computer system for a commercial purpose and is, therefore, not a “consumer”  as defined in the Consumer Protection Act.  The complaint, therefore, is not maintainable  before this Commission and is, accordingly, dismissed.

             Similar view is taken by Hon’ble National Commission in FA No723/2006 titled  General Motors India Pvt. Ltd. VS G.S. Fertilizers Pvt. Ltd. & in FA No.736/2006titled India Automobiles (1960) Ltd. VS G.S. Fertilizers Pvt. Ltd both decided by common order dated 7.2.13.    Hon’ble  Delhi State Commission in case reported as  Asha Lugani VS M/s Premium Automobiles Ltd. 1992 CPJ (III )615 held that the goods purchased for commercial purpose does not cover under the provisions of the Consumer Protection Act and complainant is not a consumer under the Consumer Protection Act.  Therefore ,complaint is not maintainable before the Commission.

 

            Similar are the facts of the present complaint.  Admittedly, the complainant  purchased car in name of M/s Shah Enterprises.  The loan disbursement letter clearly shows

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that major part of sale consideration is paid by M/s Shah Enterprise after taking loan .  There is no other document on record to show that the remaining sale consideration was paid by the complainant. Undoubtedly, M/s Shah Enterprise is a commercial entity.  We are, therefore, unable to accept the contention of the complainant that the car is for his personal use. Whereas the car was purchased for commercial purposes and is used as such.     Therefore, we are of the opinion that complainant is not a consumer under section 2(1)(d) of the Consumer Protection Act.  Hence, this Forum has no jurisdiction to entertain and try the complaint .

 

            In light of above discussion and observations the complaint is not maintainable.  Hence,  fails and is dismissed. 

 

Order pronounced on :22 11.2016

• Copy of order be sent to the concerned parties free of cost.
• Thereafter, file be  consigned to record.

 

(PUNEET LAMBA)                          (URMILA GUPTA)              (R.S.  BAGRI)

  MEMBER                                          MEMBER                            PRESIDENT