DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No. 283/2010

M/s Indian Overseas Co. Pvt. Ltd.

Through Director Shri B.K. Aggarwal

175, Functional Industrial Estate

Patparganj, Delhi-110092                                             ….Complainant

Versus

M/s Tata Motors Ltd.

Through its Regional Manager

Jeevan Tara,

5, Sansad Marg, New Delhi-110001                          ….Opposite Party

                                                  Date of Institution      :         05.05.10      Date of Order      :         28.01.19

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

Brief facts of the complaint as stated are:-

1. The complainant purchased a CNG driven TATA ACE light goods vehicle from one of the agents of OP vide invoice dated 20.04.2009 and the same was registered with registration No. DL-1-LK-6455.
2. It is stated that vehicle suffered from one or the other problem right from the day of purchase till February, 2010. The vehicle had to be taken to the workshop of OP atleast ten times. The vehicle made documented visits to workshop of OP on 19.08.2009, 20.112009 and 18.12.2009. Besides, servicing the vehicle OP also carried out repair, replacement of parts to the vehicle. On 18.12.2009, OP allegedly carried out service and replacement of defective parts and stated that the vehicle was in perfect condition.
3. It is next stated that after about 45 days and after doing 3000 kms the vehicle did not start and had to be taken to the workshop of OP again on 05.02.2010
4. OP diagnosed the problem as ‘Engine failure’ and refused to repair the vehicle under warranty. On asking for an estimate OP furnished an estimate of Rs.28,782/- stating that the vehicle had run without engine oil. 
5. It is alleged that OP had supplied a defective vehicle to the complainant requiring engine overhaul/ replacement  in less than one year before even completing 16,500 kms and have now raised an estimate of Rs.28,782/- for repairing the vehicle under warranty. The vehicle has been lying with the OP since 05.02.2010and OP had started threatening to levy parking fee of Rs.200/- per day.
6. Aggrieved by the circumstances above, the complainant approached the Forum with the prayer that OP be directed to take back the defective vehicle and replace the same with a new defect free vehicle or in the alternative refund the cost of vehicle along with interest. Further OP be directed to compensate the complainant for expenses, harassment, agony and to pay the cost of present complaint.

2. OP resisted the complaint inter-alia by raising preliminary objections on the ground that the complainant is not a consumer as the vehicle in question was purchased in the name of M/s Indian Overseas Co. Pvt. Ltd. and the vehicle in question has been purchased by the complainant for commercial usage. 
   1. It is next submitted that the complainant was negligent and irregular in maintaining the vehicle in question. The vehicle was brought at the workshop of OP ion 05.02.2010 with ‘starting problem’ after covering a distance of 16,409 kms. It is further submitted that the representative of complainant did not inform during opening of job card that the vehicle in question had met with major accident earlier. On inspection, it was observed that engine failure occurred due to very low engine oil that is 100 ml. only. OP duly informed the representative of the complainant about the said fact and further informed that the repair jobs can be carried out on ‘Payment Basis Only’.
   2. It is next submitted that as per records prior to March, 2010 the complainant brought the vehicle in question to the workshop of OP on the following dates:-

1.  Reiterating the fact that the complainant was negligent in taking care of the vehicle, OP states that the second service was carried out by the complaisant on 13,339 kms which should be carried out at 10,000 kms. The complainant failed to check and get the vehicle serviced properly, as per the operator’s service book provided to the complainant. Therefore, complainant cannot shift his blame upon the OP for his own fault. Hence it is prayed that the complaint being false frivolous and malafide should be dismissed with costs.

3.      Complainant has opted not to file rejoinder to the reply of OP. Evidence by way of affidavit of Shri Rishi Aggarwal Director M/s Indian Overseas Comp. Pvt. Ltd.  is filed on behalf of the complainant.

4.      Evidence of Shri M.K. Bipin Dass, Manager Legal Tata Motors  Ltd. has been filed on behalf OP.

5.      Written arguments have been filed by the parties.

6.      We have heard learned counsel of both the parties and have gone through the record carefully.

7.      On perusal of the record, it is noticed that the vehicle in question is purchased in the name of M/s Indian Overseas Company Pvt. Ltd. The invoice of the vehicle and registration are also in the name of the company. Further the annexure annexed as C2 that Form-23 reveals -

                                                Form-23

FORM OF CERTIFICATE OF REGISTRATION INDIA

          Registration Number             :         DL1LK 6455

Owner’s Name & Address     :         M/s Indian Overseas

Co. Pvt. Ltd.

175 F.I.E. Patpar

Ganj Delhi-92

          Vehicle Class                          :         Light Goods Vehicle

Type of Body                          :         Open Body”

It is evident from the above document that the vehicle in question is purchased for commercial purpose as  it is not a passenger car and MD/ Director of a private limited company would obviously not use a ‘light goods vehicle with open body’ for self employment to earn its livelihood. Further no rational argument was advanced by the counsel for the complainant, as to why the dispute in question would not be hit by Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. For ready reference the said section is reproduced herein below :-

 “[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 ¹² [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 ¹³ [but does not include a person who avails of such services for any commercial purpose]”

Evidently complainant not being a consumer, complaint is dismissed as not maintainable.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 28.01.19.