BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
OF 2007 AGAINST C.C.NO.519 OF 2006 DISTRICT CONSUMER FORUM-I HYDERABAD
Between
Mr.M.L.Agarwal S/o late Sri G.R.Agarwal
Aged about 71 years, Occ: Business
O/a Rama Towers, 2nd Floor, 5-4-83,
M.G.Road, Secunderabad-500 003 (AP)
Appellant/complainant
A N D
The Regional Manager,
M/s MRF Limited, P.B.No.200
5-8-328/2, Chapel Road, Nampally
Hyderabad-001 (AP)
Respondent/opposite party
F.A.No.1021 OF 2007 AGAINST C.C.NO.803 OF 2006
Between
Mr.M.L.Agarwal S/o late Sri G.R.Agarwal
Aged about 71 years, Occ: Business
O/a Rama Towers, 2nd Floor, 5-4-83,
M.G.Road, Secunderabad-500 003 (AP)
Appellant/complainant
A N D
The Manager,
M/s MRF Limited, P.B.No.200
5-8-328/2, Chapel Road, Nampally
Hyderabad-001 (AP)
Respondent/opposite party
F.A.No.1022 OF 2007 AGAINST C.C.NO.214 OF 2006
Between
Mr.M.L.Agarwal S/o late Sri G.R.Agarwal
Aged about 71 years, Occ: Business
O/a Rama Towers, 2nd Floor, 5-4-83,
M.G.Road, Secunderabad-500 003 (AP)
Appellant/complainant
A N D
The Manager,
M/s MRF Limited, P.B.No.200
5-8-328/2, Chapel Road, Nampally
Hyderabad-001 (AP)
Respondent/opposite party
F.A.No.1023 OF 2007 AGAINST C.C.NO.287 OF 2006
Between
Mr.M.L.Agarwal S/o late Sri G.R.Agarwal
Aged about 71 years, Occ: Business
O/a Rama Towers, 2nd Floor, 5-4-83,
M.G.Road, Secunderabad-500 003 (AP)
Appellant/complainant
A N D
The Manager,
M/s MRF Limited, P.B.No.200
5-8-328/2, Chapel Road, Nampally
Hyderabad-001 (AP)
Respondent/opposite party
Counsel for the appellant Sri G.Venkata Swamy Goud
Counsel for the respondent Sri J.Prabhakar
QUORUM: SRI SYED ABDHULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
WEDNESDAY THE TWELFTH DAY OF MAY
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
The complainant is the appellant. These appeals F.A.No.998 of 2007, 1021 of 2007, 1022 of 2007 and 1023 of 2007 are filed against the orders of the District Forum II Hyderabad in C.C.No.519 of 2006, C.C.No.803 of 2006, C.C.No.214 of 2006 and C.C.No.287 of 2006 respectively.
The facts of all the appeals are identical in nature. As such they are proposed to be disposed of by a common order. F.A.No.998 of 2007 is taken as the lead case.
The facts of the case as represented by the complainant are that the complainant had purchased 8 MRF tyres from the dealer of the opposite party namely, M/s SV Tyres Secunderabad on 18.7.2005 for a consideration of Rs.56,300/-. The MRF tyres were prematurely worn-out, canvas was visible, tread became flat despite taking precautions of interchange of wheels and tyres, keeping air pressure within 85 kgs and 105 kgs etc. The tyres had run for about 35,000 kms as against the guaranteed life of 80,000 kms. The complainant represented on 23.5.2005 to the opposite party that the eight tyres were prematurely failed and worn out. The complainant requested the opposite party to replace the defective tyres with new tyres of the same size and brand or refund the amount of RS.56,300/- along with interest. The complainant has got issued legal notice dated 5.6.2006 with a demand for replacement of the tyres. The opposite party gave reply on 6.6.2006 and 8.6.2006 that the complainant should send the defective tyres to them through the dealer for inspection and examination. The opposite party had given reply notice dated 30.6.2006 stating that no guarantee was given to the complainant and denied to replace the defective tyres. The opposite party resorted to play unfair trade practice on the complainant. The complainant claimed replacement of eight defective MRF tyres with new tyres or in the alternative refund of an amount of Rs.56,300/- with interest @ 24% per annum and Rs.1,00,000/- towards compensation for mental agony.
The opposite party resisted the claim. It was contended that the complainant is not a consumer. The preliminary objection to the maintainability of the complaint is that the tyres purchased by the complainant were being used for commercial purpose. The complainant has been doing under the name and style of Maniklal Textile Mills. The complainant is running an iron foundry in the name and style of Agarwal Foundries. The vehicle fitted with the tyres in question was used for transportation of iron scrap. The complainant had been engaging the service of the driver for plying the vehicle. No guarantee for the tyres was given by the opposite party to the complainant. The opposite party had addressed letters dated 6.6.2006 and 8.6.2006 in reply to the notice dated 23.5.2006 from the complainant and requested him to send the tyres to the opposite party for inspection or handover them to the dealer. The complainant has not sent the tyres. The defect if any can only be revealed after inspection of the tyres. The tyre being a rubber product, is not fool proof against impact with external objects. The opposite party not liable to pay any amount to the complainant. The opposite party had properly responded and replied to the notice of the complainant. There was no negligence on the part of the opposite party. The tyres manufactured by the opposite party have no inherent manufacturing defect.
The complainant has filed his affidavit and documents that have not been marked as exhibits.
The Technical Service, Engineer of the opposite party company has filed his affidavit and also the documents that have not been marked in the complaint.
The District Forum has dismissed the complaint on 20.6.2007 in view of the order dated 20.6.2007 passed in I.A.No.22 of 2007. The petition in I.A.No.22 of 2007 was filed by the opposite party to decide the maintainability of the complaint as preliminary issue.
Feeling aggrieved by the order of the District Forum, the complainant has filed the appeal contending that the District Forum ought to have allowed the petition prior to the commencement of evidence. The complainant has not admitted that he is the proprietor or partner of M/s Maniklal Textiles Mills. The complainant is a consumer as he is the user of the goods. The tyres posed manufacturing defect. There is no provision in the C.P.Act for framing the preliminary issue as in the Code of Civil Procedure. There is no constitutional bar that a man cannot do two businesses simultaneously. The District Forum has disposed of the interlocutory application and as such the main complaint is not finally disposed of.
The points for consideration are:
1) Whether the complainant is the consumer within the meaning of Sec.2(1)(d) of C.P.Act?
2) Whether the District Forum can dispose the complaint by framing preliminary issue?
3) Whether the MRF tyres manufactured by the opposite party and purchased by the complainant suffered from manufacturing defect?
4) To what relief?
POINT NO.1 The case of the complainant is that he has purchased 8 MRF tyres manufactured by the opposite party and sold by their dealer M/s SV Tyres Secunderabad on 18.7.2005 for a consideration of RS.56,300/-. The learned counsel for the complainant has submitted that the 8 tyres prematurely failed, worn out and the request for replacement of the tyres had gone unheeded compelling the complainant to get issued notice through his advocate on 5.6.2006. The opposite party had issued reply on 8.6.2006 followed by a reply dated 30.6.2006. The opposite party has taken an objection that the complainant is not a consumer within the meaning of Sec.2(1)(d) of C.P.Act and as such the complaint is not maintainable. The objection in regard to the maintainability of the complaint has been taken in the counter filed by the opposite party before the District Forum as also in petition in I.A.No.22 of 2007. Both parties had filed their respective affidavits and documents conscious of each other’s allegations and pleas. The learned counsel for the complainant has submitted that the disposal of the petition I.A.No.22 of 2007 does not amount to disposal of the complaint on merits. In view of the evidence adduced by both the parties in the shape of the affidavits as also the documentary evidence, we would proceed to decide the matter that whether the maintainability of the complaint can be determined as a preliminary issue.
Before proceeding with the aspect of the maintainability of the complaint before the Consumer Forum, it is essential to consider Sec.2(1)(d) of the C. P. Act which reads as under:
(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 complainant has purchased 8 tyres from the dealer of the opposite party. The complainant has filed affidavit stating that his occupation is business. The complainant has not denied that he had purchased the tyres to be used for commercial purpose as by fitting them to the vehicles for transportation of material as a part of his business activity. The complainant has got issued notice dated 5.6.2006 wherein his occupation described as business being carried out at 2-1-113, Tobacco Bazar Secunderabad. The letters dated 23.5.2006 and 4.7.2006 issued by the complainant contain the particulars of his address as 2-1-113, Tobacco Bazar Secunderabad. The cumulative effect of the letters issued by the complainant and the notice dated 5.6.2006 got issued by him would unclinchingly establish that the complainant has been carrying on business. Apart from the documents, the complainant has stated at para 3 of Grounds of Appeal that “ there is no constitutional bar that a man cannot do two businesses simultaneously”.
The complainant has purchased 8 MRF tyres which are the subject matter of the appeal F.A.No.998 of 2007. The complainant has filed F.A.Nos.1021 to 1023 of 2007 alleging manufacturing defect in respect of 32 MRF tyres that he has purchased from the dealer of the opposite party. Even if it is presumed that the complainant is not a business man, no prudent man would purchase 40 tyres to be utilized for other than the commercial purpose. The documents filed by the complainant particularly a letter dated 4.7.2006 would prima facie show that the complainant is a business man and he had purchased the tyres for the commercial purpose. In the last paragraph of the letter dated 4.7.2006 addressed to the opposite party the complainant questioned the opposite party as to how he being an operator could survive in case the tyre costing Rs.10,000/- could worn out running about 30,000 kms. The paragraph begins with “ you will appreciate a tyre costing Rs.10,000/- is worn out in 30,000 kms only, how the operator should survive?”. The complainant has not only described himself as the business man he had also categorically mentioned that he is an operator. The opposite party has denied it has given any warranty for the tyres sold by its dealer to the complainant. The complainant nowhere mentioned either in the letters dated 23.5.2006, 4.7.2006 and the notice dated 5.6.2006 that the opposite party has furnished warranty for tyres in question. Even if the oppose party has given warranty for the tyres yet the complainant cannot be considered as consumer within the scope of the provisions of the C.P.Act.
Viewed from any angle, the complainant cannot said to be a consumer within the ambit of Sec.2(1)(d) of C.P. Act which prohibits any complaint alleging deficiency in respect of goods purchased for resale or commercial purpose.
POINT NO.2 The learned counsel for the appellant has contended that the question of maintainability of the complaint cannot be decided as a preliminary issue. In the case on hand, the parties to the complaint have filed their respective affidavit as also the document and advanced arguments. The petition filed by the opposite party in regard to the maintainability of the complaint was disposed of and consequently the complaint was dismissed. It is pertinent to note that the complaint was not rejected nor dismissed without issuing notice to the opposite party and just on the basis of the pleadings of the complainant. Both parties to the proceedings had been given sufficient opportunity to project their respective cases and adduce evidence thereof. It is important tonote that the opposite party at the earliest point of time i.e., in the counter that was filed, a specific objection was taken as to the maintainability of the complaint. The opposite party has requested for the disposal of the complaint on the issue of the maintainability. The District Forum has not disposed of the matter whereby the opposite party has filed the petition I.A.No.22 of the 2007. The petition was not disposed of without issuing notice and receiving counter of the complainant. In the interlocutory application the opposite party has stated that the complainant has been running business under the name and style of M/s Maniklal Textile Mills and that the complainant has filed many consumer cases against the opposite party and third parties. The complainant has filed counter questioning the disposal of the complaint by deciding the preliminary issue. It was contended that there is no provision in the C.P.Act enabling the District Forum to decide the complaint on the point of maintainability as a preliminary issue. The District Forum has disposed of the petition and the complaint as well holding that the complainant has purchased several tyres for his business purpose, Maniklal Textile Mills, which is prima facie a commercial purpose. As such the complainant is not a consumer as defined by the provisions of C.P.Act.
Sec.12 of the Consumer Protection Act, 1986 mandates the procedure for disposal of the complaint filed before the District Forum. The provisions of Sec.12 and 13 of the C.P.Act with such modification as necessary are applicable to the proceedings before the State Commission as also the National Commission. Sec.12(3) of the C.P. Act provides for an option to the District Forum either to reject the complaint by giving opportunity to the complainant of being heard or allow the complaint to be proceeded with. The admissibility of the complaint is to be decided within 21 days from the date on which complaint was received. However, the admissibility of the complaint itself would not entitle the complainant to any relief including the question of maintainability of the complaint. The opposite party would be given time within which the opposite party has to file their written version and after receipt of the written version where the opposite party disputes the allegation of the complaint the District Forum would proceed to settle the consumer dispute on the bass of evidence brought on record by the parties to the complaint. Thus, the District Forum is empowered to dispose of the complaint on receipt of evidence from both the parties to the proceedings. The power to dispose of the matter includes the power to dispose of the case on the aspect of the maintainability as the jurisdiction of the court or forum is the essential parameter for defining the power of the court or the forum to decide the lis before it.
The jurisdiction as to the subject matter, as aforesaid of a forum or court is the competence of the court to decide the dispute brought before it. Once, it is found that the forum or the court has no power to decide the dispute, it cannot further proceed with the case clinging to the plea of the complainant that it has got jurisdiction despite the fact that the statute under which the consumer forum has been created has not come for any such power on the District Forum to decide the lis brought before it by the complainant. Therefore by no stretch of imagination it can be said that the District forum cannot dispose of the matter by deciding the maintainability of the complaint as a preliminary issue.
In “Punj Llyod Ltd., vs. Corporate Risks India Ltd.,” reported in I (2009) CPJ 10 (SC) the Hon’ble Supreme Court held that the complaint can be dispose of by the District Forum on the question of maintainability after issuing notice to the opposite party and receiving the pleading and evidence of the opposite party. The Apex Court was dealing with the case where the National Commission has dismissed the complaint without issuing notice to the opposite party. The National Commission dismissed the complaint on the basis of the pleadings and the documents filed by the complainant. The Supreme Court held that the consumer dispute can be dispose of as a preliminary issue the maintainability of the complaint vis-à-vis of the status of the consumer after the opposite party has made its appearance and put in its defence.
In the light of our discussion and the decision of the Apex Court in regard to the disposal of the complaint on the question of maintainability of the complaint, we hold that the District Forum can dispose of the complaint by deciding its maintainability as a preliminary issue. The point is answered in favour of the opposite party.
POINTS NO.3 AND 4 In view of the findings under points no.1 and 2, it is held that the complainant is not a consumer to invoke the jurisdiction of the consumer forum, we do not propose to proceed with the question of manufacturing defect in the tyres purchased by the complainant. However, we are conscious of the fact that a manufacturing defect cannot be decided except by the inspection of tyres by a technician which is admittedly not done in this case. Be that it may, the consumer forum has no jurisdiction to decide a matter falling outside the scope of Sec.2(1)(d) of the C.P.Act. Hence, the appeal is liable to be dismissed.
In F.A.No.1021/2007, 1022/2007 and 1023/2007, the complainant has approached the District Forum with the very similar allegation of manufacturing defect in the tyre and equally the opposite party had come up with very same defence. The discussion hereinabove and the decision made thereto would apply with equal force to these three appeals. Hence, these appeals are liable to be dismissed.
In the result the appeals F.A.No.998 of 2007, F.A.No.1021 of 2007, F.A.No.1022 of 2007 and F.A.No.1023 of 2007 are dismissed. In the circumstances of the case, there shall be no order as to costs.
MEMBER
MEMBER
Dt.12.05.2010
KMK*
