BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 06/09/2012

Date of Order : 21/07/2015

Present :-

Shri. Cherian. K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 540/2012

Between

And

O R D E R

V.K. Beena Kumari, Member.

1. The complainant Smt. Mini Boban purchased a Skoda Rapid AmbMT1.6-12688 model car from the 2^nd opposite party M/s. St. Antony's Trading Co. at Edappally for ₹ 8,29,921/- on 24-03-2012 for her personal use. The Chassis No. of Skoda Rapid car is TMBBLBNAOCG012688 and the Engine No. is CLN18834. She availed loan for ₹ 7,40,000/- from M/s. ICICI Bank to purchase the above said car. The loan EMI is ₹ 19,470/- and she paid ₹ 66,400/- towards road tax and ₹ 24,140/- towards insurance premium. While so on 19-05-2012, the vehicle suffered brake down due to overheating. The vehicle was entrusted with the 2^nd opposite party for repair and the vehicle was returned, after replacing sensor, on 31-05-2015. Again, the vehicle was taken to the 2^nd opposite party with the complaint of excessive vibration in idle condition. The 2^nd opposite party took the vehicle to M/s. Marikkar Motors for repairs and was returned after repairs on 11-08-2012 and an amount of ₹ 393/- was collected from the complainant and the vehicle was again returned to M/s. Marikkar Motors and it is still with them. It is contended that the recurring complaints of the vehicle is due to manufacturing defect and the failure of the technicians to repair the defect of the vehicle substantiates that the vehicle supplied to the complainant is suffering from manufacturing defect. The complainant claimed refund of the price of the car along with incidental expenses and also ₹ 1,00,000/- towards compensation for the loss of car facility and mental agony suffered by the complainant due to the supply of the defective car.

2. The version of the 1^st opposite party :-

The 1^st opposite party in their version stated that the relationship between the 1^st opposite party and the 2^nd opposite party is on principal to principal basis as per the agreement entered into between the opposite parties. The complaint is not maintainable either in law or on facts of the case. The complaint is bad for non-joinder of necessary party M/s. Marikkar Engineers Pvt. Ltd. The averment of the complainant that the vehicle showed various complaints right from the beginning is denied. The vehicle was brought to the service centre of the 2^nd opposite party with the complaint of engine over heating on 19-05-2012 and the above complaint was duly rectified under warranty and the vehicle was delivered on 31-05-2012. The clip connecting the hose and pipe of the cooler has replaced along with the spring under warranty conditions free of cost. The complaint of 'excessive vibration in idle stage' was also attended to by the Service Department of M/s. Marikkar Engineers Pvt. Ltd. and the vehicle was returned to the complainant on 11-08-2012 and on 19-10-2012 the vehicle was again brought to M/s. Marikkar Motors Pvt. Ltd. with the complaint of brake vibration. The above complaint was corrected and the complainant is now using the vehicle and regularly servicing the vehicle with M/s. Marikkar Engineers Pvt. Ltd. It is contended by the 1^st opposite party that the vehicle purchased by the complainant was not suffering from any manufacturing defect and there is no deficiency in service or unfair trade practice committed by the opposite parties. It is prayed that the complaint may be dismissed with costs to the 1^st opposite party.

3. The 2^nd opposite party was served with notice of this complaint, but they did not respond to the same. The evidence in this case consisted of the documentary evidences marked as Exts. A1 to A5 and X1 series on the side of the complainant. No oral evidence adduced by the complainant. There are no oral or documentary evidence on the side of the 1^st opposite party. Heard the counsel for the complainant and the 1^st opposite party.

4. On the above pleadings, the following issues were settled for consideration :-

1. Whether the complainant is a consumer as envisaged in Section 2 (1) (d) of the Consumer Protection Act 1986?

2. Whether the complainant is entitled to get refund of the price of the vehicle purchased by her?

3. Reliefs and costs?

5. Issue No. i. :- A Skoda Rapid car was purchased by the complainant on 24-03-2012 from the 2^nd opposite party as evidenced by Ext. A1 invoice for ₹ 8,29,921/-. The above said car was registered vide Ext. A2 certificate of registration in the name of the complainant in her capacity as the Director of Lichen Builders and Developers Pvt. Ltd. Ext. A3 is the insurance details taken on the vehicle and Ext. A4 is the Amortization Schedule issued by the ICICI Bank showing that the complainant had taken a loan of ₹ 7,40,000/- with EMI rate of ₹ 19,470/- per month for 47 months in the name of her business concern namely Lichen Builders and Developers Pvt. Ltd. Ext. A5 is the invoice issued by Marikkar Engineers Pvt. Ltd., Kalamassery to the complainant demanding ₹ 393/- towards washing charges and service tax. We have considered the contentions raised by both sides and have gone through the evidences produced before this Forum. Ext. A1 itself shows that the above said vehicle was purchased by the complainant in her capacity as a director of the business concern namely Lichen Builders and Developers Pvt. Ltd. Thus, the impugned purchase was effected for commercial use. In that case, the complainant cannot be considered as a 'consumer' as defined in Section 2 (1) (d) of the Consumer Protection Act 1986. Hence, we find that the complaint filed before us is not entertainable and is therefore dismissed.

6. Issue Nos. ii. and iii. :- Having found the issue No. (i) against the complainant, the issue No. (ii) is not considered for the reason that the complainant is not a 'consumer'. In the facts and circumstances of the case, we do not award any costs of the proceedings to either party.

7. In the result, this complaint is dismissed without prejudice to file appropriate proceedings before appropriate Civil Court if so advised, by seeking exclusion of the time taken to prosecute this complaint before this Forum relying on the decision of the Hon'ble Supreme Court in Lakshmi Engineering Works Vs. P.S.G. Industrial Institute reported in (1995) 3 SCC 583.

8. The complaint is dismissed accordingly.

Pronounced in the open Forum on this the 21^st day of July 2015

Sd/- V.K. Beena Kumari, Member.

Sd/- Cherian. K. Kuriakose, President.

Sd/- Sheen Jose, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil