D.o.F:16/6/07 D.o.O:15/10/09 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC. 43/07 Dated this, the 15th day of October 2009. PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SYAMALADEVI : MEMBER K.J.Varkey, S/o Late Joseph, R/at Karimbanakkal House, : Complainant Plachikkara PO, Hosdurg,Kasaragod. (T.M.Jose,Hosdurg) 1.M/s Tata Motors Ltd, Ist floor, Bombay House, Homi Mody Street, Fort Mumbai-1. : Opposite parties 2. M/s Sakthi Automobiles Ltd, Kannur Branch,Kannur. (Adv.P.V.Jayaraj,Kasaragod) ORDER SRI.K.T.SIDHIQ : PRESIDENT: The case of the complainant, a PWD contractor, is that the TATA SFC 709 38 vehicle he purchased to execute the PWD works on 30/11/2004 caused repairs due to its manufacturing defect during the warranty period. On 17/6/05, the clutch disc of the vehicle was broken and the complainant spent Rs.5000/- to repair it instead of the manufactures warranty assurance. Again on 27/6/05 the gear box of the vehicle was broken when the vehicle was moving on reverse gear. The vehicle was taken by opposite party No.2 to their workshop at Kannur. The complainant demanded the replacement of the gear box since it has provided with the warranty and the damage was caused within one year of the purchase. When the complainant repeatedly requested the opposite parties for replacing the parts, the opposite parties assured that since there was no new parts with them the complainant has to purchase the gear box from outside and the amount spent for the purchase of gear box will be adjusted at the time of periodical service offered by Ist opposite party. 2nd opposite party also assured that the substituted parts will also cover warranty if it has suffered any damages in future. Trusting the words of the opposite party complainant replaced the gear box spending Rs.10,000/-. Moreover, the complainant has to hire another vehicle for executing the works since the vehicle was kept in the work shop for repair for 8 days. Again on 16/11/05 also the gear box and shaft was broken. On investigation 2nd opposite party told that the gear box was broken due to the manufacturing defects of the engine system. Since the complainant needed the vehicle urgently to complete the contract works he constrained to pay the cost of replaced parts ie Rs.15,000/-. The opposite parties were liable to replace the gear box free of cost as per warranty since the damages were caused due to the manufacturing defects of the entire system of vehicle. Though the complainant caused a lawyer notice demanding the replacement of the vehicle or to pay a sum of Rs.25,000/- towards the expenses incurred for replacement of spare parts with a compensation of Rs.10,000/- it was not even properly responded. Hence the complainant claiming a compensation of Rs.52,000/-. 2. Both opposite parties filed separate versions. According to them the complainant is not a consumer since the vehicle was purchased by the complainant for commercial purpose. On merits the contention of the opposite parties are that the alleged clutch disc was broken not due to any manufacturing defect but it was worn out with burnt marks due to overloading of vehicle. The warranty does not extend to repairs/defects that come across due to improper usage. As alleged by the complainant the vehicle was not taken on 27/6/05 for repair. It was brought on 16/11/05 with a breakdown complaint. The defect seen on that occasion was the breakage of 4th gear and counter shaft gear teeth. The broken teeth had fallen in between the gear and the gear box case was also seen broken. The said defect is caused due to improper usage of the vehicle. The warranty provided does not covers the defects occurred due to improper usage of the vehicle. Hence the opposite parties are not liable to compensate the complainant. 3. On the side of the complainant Exts.A1 to A6 series marked. On the side of opposite parties Exts.B1&B2 marked. Both sides heard. 4. The learned counsel Shri.P.V.Jayaraj appearing for opposite parties contended that the complainant is using the vehicle for commercial purpose and hence he is not a consumer. The said contention is not sustainable in view of the decision of the Hon’ble J&K High Court in the case of Alson Authorities Pvt.Ltd vs. J&K Project Construction Corporation Ltd & Ors. reported in 2005 CTJ 139(J&K High Court). In the said decision the Hon’ble High Court held as follows: Even if a person who buys goods and uses them himself exclusively for the purpose of earning livelihood is within the definition of expression” consumer”. Thus a taxi driver buying a vehicle-taxi for self employment yet he cannot be branded as a non-consumer. In the instant case the vehicle was purchased for the purposes of supervision of the works. If a Corporation is running the fleets of vehicles for passenger service, certainly it could be said that the Corporation is engaged in commercial activities. But when a Corporation in the instant case is not engaged in such activities or in business activities and has purchased the vehicle namely Ambassador Car for the purpose of supervision of the works by the officers then in the opinion of the court, the complaint can be said to be a consumer. Aagain the Hon’ble National Consumer Disputes Redressal Commission in the case of Harsolia Motors vs National Insurance Co.Ltd reported in I (2005) CPJ 27(NC) has drawn a distinction between Commercial purpose and commercial activity and defined ‘ commercial purpose’ as Goods purchased or services hired should be used in any a activity Directly intended to generate profit. Profit is the main aim of commercial purpose. But in a case where goods purchased or hired in an activity which is not directly intended services to generate profit, it would not be a commercial purpose’ In this case, the opposite parties have no case that the complainant is hiring the vehicle and thereby generating the profit. So it cannot be considered that the vehicle is intended for generating any profit directly to attract the exclusion clause ‘ Commercial purpose’ 5. It is the further contention of the opposite parties that the defects were occurred due to the improper usage of the vehicle and not due to the manufacturing defects. But to substantiate the contention of improper usage the opposite parties have not produced any documents. Ext.B2 is the Operator’s service book with warranty pertaining to the vehicle of the complainant. Page 3&4 of the said service book details the terms and conditions of the warranty. But it nowhere states that the said warranty is offered based on any adequate or proper test nor the opposite parties have a contention that the warranty is given based on any adequate or proper test. In the absence of such an adequate proper test report pertaining to every vehicle it cannot be presumed that all the vehicles manufactured by opposite parties are free from manufacturing defects. 6. The learned counsel for the opposite parties Sri.P.V.Jayaraj relied very much on the decisions of the Hon’ble National Consumer Disputes Redressal Commission reported in (2007) CPJ 204(NC), II(2006)CPJ 143(NC) and I(2007) CPJ 2(NC) to support his contention and he argued that it was the duty of the complainant to prove their case of manufacturing defect of the vehicle by adducing expert evidence. Evidently the complainant has not produced any expert evidence to prove that the defects to the vehicle were caused due to any inherent manufacturing defects. Hence on that ground the complainant is not entitled for the reliefs claimed But in the case of DAGADU BHAIRO BHOSALE Vs SCOOTER INDIA LTD.& Anr. Reported in II (2006)CPJ 143(NC) the Hon’ble National Commission rejected the claim of the complainant for the cost of replacement of spare parts on the ground that the receipts produced by the complainant were towards the purchase of consumables like nut, bolts, gear oil, battery pacers etc and they were not covered under the warranty. That means if the spare parts purchased were having the warranty cover then opposite parties would have been liable to refund the said sums. 7. In the instant complaint it is the case of the complainant that he has to pay for the parts of gear box shaft etc that was covered under the warranty. Ext.A6(a) to A6(f) are the bills for the purchase of spare parts and its repair charges. The total of the same would fetch Rs.10264/.- The complainant is entitled to get refund of the said amount. In the result, the complaint is allowed in part and the opposite parties are directed to pay Rs.10264/- to the complainant with a cost of Rs.2500/-. Time for compliance is 30 days from the date of receipt of copy of the order. Failing which the complainant is entitled to get interest @ 9% per annum for Rs.10264/- from the date of complaint till payment. Sd/ Sd/ MEMBER PRESIDENT Exts: A1- invoice cum delivery receipt A2-11/3/06-Copy of lawyer notice A3-&A4- A.D.cards A5-27/3/06-Reply notice A6 series- cash bills B1-21/5/06- reply notice B2-Operator’s Service book Sd/ Sd/ MEMBER PRESIDENT eva/ /forwarded by order/ SENIOR SUPERINTENDENT
......................K.T.Sidhiq
......................P.P.Shymaladevi
......................P.Ramadevi | | 
