A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 1475/2007 against C.C. 955/2006, Dist. Forum-II, Hyderabad.
Between:
M/s. Jai Raj Ispat Ltd.
Regd. Office at 11-B
Jatindra Mohan Avenue
Kolkatta-700 006.
Adm. Office at 8, Phase-III
Industrial Development Area
Jeedimetla, Hyderabad.
Ranga Reddy Dist. *** Appellant/
Complainant.
And
1) M/s. Honda Siel Cars India Ltd.
Plot No. A-1, Sector 40/41
Surajpur Kasana Road
Greater Noida Industrial
Development Area
Gautam Budda Nagar Dist.
Uttar Pradesh-201 306.
2) M/s. Sundaram Honda
R.P. Road, Secunderabad. *** Respondents/
Ops.
Counsel for the Appellant: M/s. K. Suneel Babu.
Counsel for the Resp: M/s. T. Surya Satish. (R1)
M/s. Sudha Gatrazu.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
MONDAY, THIS THE FOURTEENTH DAY OF JUNE TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that it has purchased a Honda car on 22.3.2004 from R2 dealer manufactured by R1. From the date of purchase the car was giving troubles frequently and finally after four months the a/c of the car stopped functioning, on which he took the car to R2. On inspection it was informed that the compressor of the car failed and required to be replaced with a new one. As it was within the warranty period, he did not pay any amount. Despite change of compressor the a/c system was not functioning properly, on which he again visited R2 to get it rectified. Though he had taken delivery of the car it started giving troubles. Thereupon he issued a legal notice for replacement of the vehicle for which R2 gave a reply stating that they would rectify. On 15.10.2006 it was got repaired after collecting Rs. 48,000/- on the ground that it was beyond period of warranty. Since the problem was recurring and the defect was not rectified he filed the complaint with a prayer to replace the car and pay Rs. 1 lakh towards damages and costs.
3) The respondents resisted the case. R1 alleged that the car was purchased in the name of the company for commercial use and therefore the complaint is outside the purview of the provisions of the Consumer Protection Act, and therefore the complaint was liable to be dismissed. The complainant himself did not properly maintain the car as provided under owner’s manual. The compressor of the car was replaced on 13.4.2005 on free of cost after more than one year as it was under warranty. Letter dt. 1.7.2005 was introduced as an after thought alleging that the compressor of the vehicle was defective. In fact after change of compressor a/c was working properly. At any rate, the complaint involved several disputed questions of fact and law and require oral and documentary evidence and therefore the summary jurisdiction under the Consumer Protection Act cannot be invoked.
4) R2 equally resisted the case reiterating the most of the contentions taken by R2. It alleged the car was mishandled and was not maintained properly. When he complained that the a/c was not working well it was rectified. Though it had changed the compressor within the warranty period free of cost, again the complainant brought the car alleging that there was some problem. There was no technical defect in the a/c system.
He came with a complaint that the a/c was not working properly on 1.7.2005 after 3-1/2 months. The job card discloses that it was delivered to the complainant on 15.10.2005 after getting it checked. He was satisfied on test drive. There was neither manufacturing defect nor deficiency in service on its part. Repair was made and re-delivered to him as it was within the warranty period. The claim was highly excessive, arbitrary and therefore prayed for dismissal of the complaint.
5) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A9 marked while the respondents filed Ex. B1 job card.
6) The Dist. Forum after considering the evidence placed on record opined that when the complainant complained that the a/c was not working properly it was attended to, and after fully satisfied with the working condition, he took delivery evidenced under entries in the job card Ex. B1. There was no manufacturing defect. It also opined that the car was purchased by the company and therefore it could not attract the jurisdiction of the Dist. Forum and accordingly the complaint was dismissed, however, without costs.
7) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. There was no expert opinion to prove that there was no manufacturing defect. When once the compressor was changed during the warranty period the presumption is that there was defect in manufacturing could be drawn. The Dist. Forum ought to have seen that the company has been using the car for transportation and it was not earning out of use of the vehicle. It has been used by the Managing Director. Therefore it would attract the provisions of Consumer Protection Act.
8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis- appreciation of fact or law?
9) It is an undisputed fact that the complainant M/s. Jai Raj Ispat Ltd. is a company registered under the Companies Act. It has purchased a Honda car from R2 on 22.3.2004 manufactured by R1. There is no pleading that the car was purchased for exclusive use of transportation of the Managing Director for his personal use. Evidently the company has purchased the vehicle. The company could not have been the ‘consumer’ as defined u/s 2(1)(d) of the Consumer Protection Act. Sec 2(1) (d) reads as follows:
(d) "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 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
(ii) 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 are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.— For the purposes 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 purposes of earning his livelihood by means of self-employment
The company could not have purchased for eking out its livelihood. Therefore it would not come in the purview of provisions of the Consumer Protection Act. It is unfortunate that big companies like the complainants have been resorting to the litigation under C.P. Act obviously, in order to avoid payment of court fee. More over, when cases are being filed by the companies they are hindering genuine claims of the consumers which are left unresolved within the time prescribed under the Consumer Protection Act. Be that as it may, the complainant complained that a/c was not working properly. Evidently as it was within the warranty period the problem was rectified and delivered on 1.7.2005 evidenced under Ex. B1 job card. There was neither allegation nor evidence to state that the compressor was not working properly.
If really the compressor was not working within warranty period the said fact finds a place in Ex. B1 job card. It never complained that the compressor was not working. The complainant has been issuing notice after notice. It is not as though the a/c was not rectified. It has been rectified, while it is within warranty period free of cost. Only when it complained again, after warranty period, the same was rectified and handed over to him after payment of necessary repair charges.
10) The complainant could not examine any mechanic to prove that there was manufacturing defect. Non-working of the compressor in a/c would not enable the complainant to get a new car solely arguing that there was manufacturing defect in the a/c system. There is no proof that the a/c was not functioning after the vehicle has been returned. It is not known why the complainant did not prove the said fact by filing affidavit of any of the mechanic that there is manufacturing defect and therefore entitled to replacement of car. It is settled proposition of law that for a defect in one of the parts the complainant would not be entitled for replacement of vehicle with a new one. At the most he could insist for replacement of said defective part of the vehicle. The Dist. Forum having considered the evidence in right perspective dismissed the complaint on both the grounds which we feel justifiable. We do not see any merits in the appeal.
11) In the result the appeal is dismissed. No costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 14. 06. 2010.
*pnr
