IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> <br /> 2. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 330/09 DATED 23.11.2009<br /> ORDER<br /> <br /> Complainant M.R.Salian, Partner, M/s Bharat International Travels, No.576, Dewan’s Road, Off. M.G.Road, Lakshmipuram, Mysore.<br /> (By Sri. P.D.Medappa, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Manager, M/s Rashica Motors, No.436/C, Hebbal Industrial Area, Near Ring Road, Metagalli, Mysore-570016.<br /> 2. Manager, M/s Eicher Motors Ltd., Plot No.102 and 102A, Industrial Area No.1, Pithampur, Dhar District, Madhya Pradesh.<br /> (By Sri. H.N.Venkatesh, Advocate for O.P.1 <br /> And Sri.Pandey B.S.N., Advocate for O.P.2)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 01.09.2009<br /> Date of appearance of O.P. : 25.09.2009<br /> Date of order : 23.11.2009<br /> Duration of Proceeding : 2 MONTHS 2 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite parties, seeking a direction to take back the vehicle mini bus No.KA-09-1165 and replace the same with defect free vehicle of the same make and model and to answer the claim to the extent of Rs.6,00,000/- with costs.<br /> <br /> 2. In the complaint, it is alleged that, the complainant is a partnership concern. On 17.01.2009, the complainant purchased the bus of Eicher make from the opposite parties under invoice No.VSI00084, for the purpose of the business in travels. The complainant is a travel concern established in the Mysore city. The complainant resorted to purchase a brand new vehicle in order to afford better and comfortable service to his customers. On the first day of the purchase itself, the complainant noticed fuel tank of the vehicle was leaking. Also, it was noticed, the problem of door locking system in addition thereto complainant felt certain other manufacturing defects, such as leaking of break fluid, heating up of the rear wheel drums, emission of noise from dash board, misdirected focusing of light and other defects. The complainant called upon the opposite parties to attend the requirement and the vehicle was handed over. The opposite parties conveyed that some times is required to repair of the defects. The opposite party did not attend the defects. Defects remained intact without being rectified. The complainant was pushed to the state of trauma and inconvenience. The complainant contacted the opposite party over phone to attend the defects. Then, a letter was addressed. There was no satisfactory response. Legal notice was also sent. The opposite parties committeded grave deficiency in service. The defects found in the vehicle are manufacturing defects. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The first opposite party in the version, has contended that, the complaint is not maintainable. It is stated that, this opposite party is only service agent. When the complainant approached this opposite party, new fuel tank was fitted free of costs. The other minor complaints were also attended. Routine required services were carried out. The vehicle was run 16500 kms. The vehicle supplied was in good condition and now, also it is in good condition. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. The second opposite party has denied certain allegations made in the complaint and it is contend that, when the complainant took delivery of the vehicle, it had run 1968 kms. The problems that were pointed out has been rectified free of costs. It is stated that, there is no manufacturing defect or deficiency in service. It is contend that, the complainant has used the vehicle for commercial purpose. On these grounds, it is prayed to dismiss the complaint. <br /> 5. In support of the claim made in the complaint, partner of the complainant firm has filed his affidavit and certain documents are produced. Additional affidavit is also filed. On the other hand, for both opposite parties also affidavits are filed and certain documents are produced. We have heard the learned advocates for the complainant and opposite parties and perused the records.<br /> 6. Now the points arises for consideration are as under:-<br /> 1. Whether the complaint is maintainable?<br /> 2. If so, whether the complainant has proved that the vehicle in question has manufacturing defect and that there is deficiency in service on the part of the opposite parties, and further, he is entitled to the reliefs sought?<br /> 3. What order?<br /> 7. Our findings are as under:-<br /> Point no.1 : In the negative.<br /> Point no.2 : It does not survive.<br /> Point no.3 : As per the final order.<br /> REASONS<br /> <br /> 8. Point no. 1:- The second opposite party in the version, has contended that, the complainant is using the vehicle in question for commercial purpose and that the complaint is not maintainable. Hence, under the circumstances, we have to consider, whether the complaint is maintainable.<br /> <br /> 9. Considering the contentions of the parties, the definition of the “Consumer” needs to be considered. Section 2(1)(d) of the Act reads as under:-<br /> “Consumer means any person who –<br /> (i) buy 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<br /> (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 services 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 purpose);<br /> 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 purpose of earning his livelihood, by means of self-employment.<br /> 10. Advocate for the opposite parties in support of the contention that, the complainant is not a consumer, relied on the ruling reported in II (2008) CPJ 177. Hon’ble Gujarat State Commission in this ruling has held that, the complainant engaged in transport business for earning substantial income, which is additional source of income of the complainant, the complainant is not a consumer. On the same point, other two rulings are relied upon reported in III (2008) CPJ 509 and III (2008) CPJ 478.<br /> <br /> 11. On the other hand, advocate for the complainant on the point relied upon the ruling reported in II (2008) CPJ 308 of the Hon’ble National Commission. The Hon’ble National Commission in this ruling has held that, the vehicle was purchased for earning livelihood for tourist business by the complainant, is a consumer. But, in paragraph 14 of the judgement with reference to the facts of that case, it is observed that it was not the case of the opposite parties that, the complainant owned a fleet of taxies and ran a tourist business as a private limited company employing many drivers. It is further observed that, in the affidavit of the complainant stated that, he was carrying on tourist business for his livelihood. Hence, it is clear that, in that case, the complainant for his livelihood was doing tourist business, for which vehicle was purchased. Whether, such are the facts of the case on hand could be seen later on. Another ruling reported in I (2009) CPJ 152 of the Hon’ble National Commission is relied upon. In the third paragraph, the Hon’ble National Commission has observed that, the machinery was sold for commercial purpose, the purchaser would be Consumer during the period of warranty. In that case, excavator cum roller machine was purchased by the complainant.<br /> <br /> 12. In the case on hand, apart from the contention of the second opposite party that, the complainant is using the vehicle for commercial purpose. In the complaint itself, it is alleged that, “the complainant purchased the said vehicle for purpose of his business in travels………..in order to afford better and comfortable service to his customers………..”. Even during the course of arguments, it is not disputed for the complainant that, the complainant is doing travel business having several vehicles. When that is so, now we have to consider, whether as per the explanation to the section noted above, the complainant is a consumer. To attract the said explanation, the complainant shall have to prove that the vehicle was purchased for the purpose of earning his livelihood by means of self employment. In the case on hand, it is not the case of the complainant firm that, for self employment to earn the livelihood, the vehicle in question was purchased. At the cost of repetition, the complainant doing travel business having hundreds of vehicle. Hence, we are of the considered view that, the complainant is not a consumer and is not entitled to benefit of the explanation referred to above.<br /> <br /> 13. On page 27 of the book Consumer Protection Law Provisions and Procedures by RNP Choudry, with reference to decisions, it is stated that, “The matter will be different where a person (a Travel-Agency) purchases more than one car and employs persons for carrying of transport activities, such activities will not constitute ‘earning livelihood’ and will be taken as ‘commercial purpose’. The same view has been expressed by Supreme Court in Laxmi Engineering Works v. Industrial Institute’ by using the expression “large scale”. The National Commission appears to have been taking a consistent view to using such goods for carrying on any activity on a large scale for the purpose of earning profit, he will not be consumer within the meaning of S.2(1)(d) of the Act.” Hence, the complainant being not a consumer, the present complaint is not maintainable. Accordingly, our findings is in negative..<br /> <br /> 14. Point No. 2:- In view of the fining on first point, this point will not survive for consideration.<br /> <br /> 15. Point No.3:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. In the circumstances of the case, there is no order as to cost.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 23rd November 2009)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />