BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.S. Chinnaiah,B.A.,B.L.,I/C President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Thursday the 31st day of January, 2008
C.C.No. 157/2006
Between:-
Pendekanti Anjaneyulu,S/o. P. Subba Ramaiah,Aged about 45 years, R/o. H.No.12/8, Main Bazar,Koilakuntla-518 135,
Kurnool District.
… Complainant
Versus
1.M/s TATA Motors Limited,
Represented by its Managing Director,Geentanil 13-19 Nagindas Master road, Hutatma Chowk,Mumbai-400 001.
2.M/s Star Motors,
by its Proprietor,126 Auto Nagar, N H 7,Hyderabad road,Kurnool. … Opposite parties
This complaint coming on this day for orders in the presence of Sri.M. Sivaji Rao, Advocate, Kurnool, for complainant, and Sri.G. Sravan Kumar, Advocate, Kurnool for opposite party 1 and Sri. Syed Shafaqath Hussain, Advocate, Kurnool for opposite party No.2 and upon perusing the material papers on record, the Forum made the following:-
ORDER
(Sri. S. Chinnaiah, I/C President)
C.C.No. 157/06
1. This is a complaint filed under section 12 of C.P.Act, 1986 by the complainant to direct the opposite parties to replace the vehicle chassis (body shell) with original company made chassis or to return the cost of local assembled chassis cost and its accessories, service charges Rs.1,41,215/- with interest at 12percent p.a., to pay the loss of rental at Rs.550/- per day to kept idle of the vehicle for 2 years 8 months without running the vehicle Rs.5,28,000/- to pay compensation of Rs.1,00,000/- for mental agony and hardship and Rs.1,000/- towards costs of the complaint.
2. The complaint averments in brief are that:- The complainant who is a native of Koilakuntla village had purchased a TATA Indica Car from opposite party No.2 which was manufactured by opposite party No.1. Opposite party No.1 is the manufacturer of the alleged replaced chassis (body shell) of the TATA India Car with Model Indica Euro II Diesel DLEMET, Chassis No.600132 JYZP 40198 and Engine No. 4751D102JYZP40377. Opposite party No.2 is the proprietor of service centre of opposite party No.1. On 27-11-2001 the complainant purchased one TATA Indica Car to run the same as taxi to earn his livelihood from opposite party No.2 which was manufactured by opposite party No.1 for Rs.3,35,131/-. While so, on 26-11-2003 the said vehicle met with an accident and entire chassis, doors, etc., are damaged. Then the complainant handed over the damaged vehicle to opposite party No.2 who is a authorized service centre of opposite party No.1 for repair and replacement of chassis with a new company made chassis. But opposite party No.2 repaired the damaged vehicle and replaced the chassis with a new chassis. Opposite party No.2 collected Rs.1,41,215/- towards the cost of the new company made chassis and its accessories costs. Believing the newly fitted chassis as a company made, the complainant took the delivery of the vehicle from opposite party No.2. As the vehicle is a taxi the said vehicle is supposed to get Fitness Certificate by the RTO and from a Break Inspector for every 2 years. As such after the repairs the complainant went to R.T.O. office, Nandyal for Fitness Certificate and for payment of Fitness Certificate Fee. Then the said R.T.O. Officials and Break Inspector checked for the chassis number on the chassis for renewal of Fitness Certificate . But the company chassis number is not appeared on the chassis. Then the said R.T.O officials searched for the chassis number at the appropriate place and its number is not found as such they refused to renew the Fitness Certificate. Then the complainant came to know that the chassis is not a original chassis manufactured by the company. But it is duplicate and locally assembled chassis. If it is a original company made chassis, certainly there would have been a number on the chassis. Though the complainant has permit upto 21-12-2006 due to lack of Fitness Certificate, he is not running the vehicle. Due to refusal of Fitness Certificate renewal by RTO, the complainant is forced to stop running of the vehicle and kept idle which resulted the complainant to
suffer huge of his livelihood. Though the complainant has permit up to 21-12-2006 due to lack of Fitness Certificate, he is not running the vehicle. Every month the complainant used to earn Rs.16,500/- @ Rs.550/- per day. Since 17-02-2004 the said vehicle kept idle without running. Due to keeping the vehicle idle the complainant has lost Rs.550/- per day a tune of Rs.5,28,000/- for 2 years and 8 months till the date of filing of this complaint. This loss is only due to fixing of assembled locally made chassis by opposite party No.2 which is not a original. The manufacturer of unnumbered chassis by opposite party No.1 without its number resulted the refusal by RTO officials to renew the Fitness Certificate. But opposite party No.2 gave a letter to RTO officials stating that the said chassis is original. But if it is original the chassis should have its number. Opposite party no.2 has played unfair trade practice by fitting locally made assembled chassis with the name of TATA Indica Company and collected and collected the price of original TATA India company chassis. Opposite party No.1 manufactured the chassis without its number which amounts to deficiency of service. After knowing the unfair trade practice and deficiency of service, the complainant went to opposite party No.2 office and complained orally about his unfair trade practice. But opposite party No.2 played wicked and bluffed by saying that he has fixed the original chassis manufactured by opposite party No.2. But in fact every major part of TATA India company including the chassis will contain its number. Subsequently, after enquiry the complainant came to know that opposite party No.2 has fitted the chassis which was supplied by opposite party No.1 which is assembled chassis and thereafter, after knowing the unfair trade practice played by opposite parties 1 and 2, the complainant got issued a legal notice dated 31-10-2005 to both the opposite parties demanding to opposite party No.1 to take necessary action against opposite party No.2 for his unfair trade practice and demanded opposite party No.2 to fix the original company made chassis or to pay the total expenditure of fixing of chassis within tow weeks from the date of receipt of the notice. But even after receiving the notice opposite party No.2 did not reply. But on 22-11-2005, opposite party No.1 replied by saying that the complainant’s grievances will be justified shortly, till then asked to bear with them. But even after 11 months also opposite party No.1 failed to do justice. Opposite parties 1 and 2 acted unfair trade practice and rendered deficiency of service to the complainant by fixing locally made chassis. Though opposite party No.2 has fixed local made chassis he collected the price of the company made chassis. For the fixing the chassis opposite party No.2 collected Rs.1,4,215/- under the various heads as follows:
(a) Hamali charges for body shell Rs. 250-00
(b) Full body Assy R & R Rs. 12,000-00
(C) Full body shell assy painting Rs. 22,000-00
(d) Two doors denting Rs. 1,000-00
(e) Front doors shell right hand Rs. 6,269-00
(f) Kit fall 2002 body shell for RE Rs. 8,836-00
(g) 2002 body shell without doors Rs. 90,860-00
____________
Total Rs. 1,41,215-00
Thus the case of the complainant.
3. The opposite party No.1 filed a counter opposing the petition contents, contending that the complaint has been wrongly filed by the complainant against the answering opposite party and is not maintainable in law. Section 52 of Motor Vehicle Act, 1988 prohibits the owner from making any alteration to a vehicle so that the particulars contained in the Certificate of Registration are at variance with those originally specified by the manufacturer. However, in terms of the exception, it is provided that in cases where there has to be alteration done without approval of the Registering Authority or by reason of replacement, the owner of the vehicle shall within 14 days of making of alteration, report the alteration to the Registering Authority within whose jurisdiction he resides and take necessary steps as neglected to take the necessary steps as required by law and cannot make the answering opposite party liable or responsible for his mistake.
It is further stated that a Chassis number is given to a vehicle at the time of manufacture by the manufacturer, opposite party No.1 in the present case. As in the present case, when an accident occurs and a major portion or basic feature is altered, the chassis number of the vehicle does not undergo change. A chassis number given to a vehicle will always continue and cannot be altered. The case of the complainant alleges deficiency in service on the ground that the body shell was replaced but did not carry a chassis number. As provided under the Motor Vehicle Act and setout herein above the complainant ought to have taken necessary steps with the Road Transport Authority for the alteration bus has failed to do so. The complainant cannot now seek to take advantage of his own mistake or wrong and allege a deficiency in service on the part of his own mistake or wrong and allege a deficiency in service on the part of answering opposite party. There is no specific allegation in the complaint against the answering opposite party for having caused deficiency in service and absence of such averment, present complaint is not maintainable against the answering opposite party.
Opposite party No.1 further stated that the complaint is not maintainable and is barred by limitation. In fact, the complainant knowing the complainant to be beyond the limitation period prescribed under the Consumer Protection Act, 1986 (hereinafter referred to as the Act ) has deliberately failed to disclose the date of refusal by the RTA to give a fitness certificate in respect of the vehicle. Therefore the present complaint is untenable in law and on facts of the case and the same is liable to be dismissed in limini with costs. The complainant has deliberately not furnished any documents to support his case of refusal by the RTA to give a fitness certificate in respect of the vehicle as in fact the vehicle was in use. Hence, the complainant is filed without sufficient evidence and material documents and hence is untenable in law.
Opposite party No.1 stated that the present complaint is liable to be rejected at the outset as being untenable in law having been filed without material particulars and documents as also with suppression of material fact. The complainant has deliberately and willfully suppressed his occupation in the title of the complaint as well as in the description of parties to conceal the commercial purpose so as to somehow bring the complaint within the jurisdiction of this Hon’ble Forum. As per section 1 (1) (d) of the Act, “Consumer” means a person who buys any goods for a consideration which has been paid or promised to 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 gods for resale or for any commercial purpose. Hence, under the explanation to the definition, it is made clear that only that person who purchases the goods for his use exclusively for the purpose of earning his livelihood by means of self-employment alone can be a consumer. The compliant is totally silent on his aspect and there is no mention that the subject vehicle is purchased by the complainant exclusively for the purpose of earning his livelihood by means of self employment. On the other hand by suppression of his occupation in the complaint it is clear that the complainant has not purchased the vehicle exclusively for the purpose of earning his livelihood by means of self employment. Therefore, the complainant is not a consumer within the meaning of Sec.2 (1) (d) of the Consumer Protection Act, 1986, and the complainant is not entitled to seek any relief from this Hon’ble Forum and it is the admitted case of the complainant that he purchased the subject vehicle for plying as a commercial vehicle as the same falls under the commercial purpose.
It is further stated that as per the settled law, if a person carrying on a commercial activity purchases the goods, it has to be necessarily pleaded and proved by him that the goods were purchased for his use exclusively for the purpose of earning his livelihood by means of self employment alone. In the absence of such a pleading and sufficient proof to that effect, such person cannot claim to be a consumer. Therefore, the complaint is liable to be dismissed on this ground alone.
Opposite party No.1 again stated that the complaint is misconceived in as much as there is no deficiency of service on their part. As admitted by the complainant opposite party No.2 undertook and carried out all major repairs caused due to the accident a requested for by the complainant and fitted the vehicle with a company manufactured spare part/chassis. Once the vehicle is attended and repairs are completed and made roadworthy, it cannot be said that the opposite party can be liable for deficiency of service. The allegation is regarding a replacement of duplicate chassis as the chassis replaced as a spare part does not mention the chassis number. Hence, no deficiency of service is proved and it is denied that the complainant has suffered a loss of Rs.550/- per day and lost Rs.5,28,000/- as alleged.
It is further stated that the complainant purchased the vehicle in November,2001 and the vehicle met with major accident on 26-11-2003 and the car was sent for repairs to opposite party No.2 and was thereafter repaired at opposite party No.2 workshop. The vehicle being damaged considerably the entire body shell which has the chassis number on it, had to be replaced as a spare part by an original body shell from the manufacturer. The new body shell was provided by opposite party No.1 from its regional warehouse at Bangalore on 23-1-2004 as per Invoice No.A/973861764, it is relevant to point out that after replacement of the body shell and due repairs the vehicle was handed over to the complainant who has thereafter been using the same for his commercial purpose. It is important to point out that all major subassemblies such as engine assembly, body shell, etc will have their individual serial numbers from which it is possible to trace the date and details of manufacture of the said subassembly. It is relevant to state that chassis number does not pertain to a particular part or sub assembly but in fact identifies and represents the vehicle in its entirety. A vehicle is manufactured at the manufacturing plant and after its complete manufacture a chassis number is provided at two places on the body shell, one being a permanent embossing done on the Fire wall, which separates the engine compartment from the passenger compartment and is visible for certification purposes. The vehicle chassis number is also embossed on a metal plate which is riveted on the body shell on the front grill. In general when a vehicle meets with an accident it is sent for repair to the authorized dealer. In the present case, the vehicle met with a major accident and the body shell had to be replaced with a new body shell. When replacement of a body shell is done on a vehicle there is no charge as regards the chassis number. Opposite party No.1 does not have any power to change or to allot a chassis number to body shell. It was the duty of the complainant to bring to the notice of the RTA the accident and the subsequent alteration done to the vehicle in terms of which the owner has to report the alteration to the RTA within whose jurisdiction he resides and get special exemption in this regard. Therefore opposite party No.1 cannot be responsible for the default of the complainant in the necessary follow up action to be taken with the concerned RTA and there is no deficiency of service on the part of opposite party No.1.
The complainant is put to strict proof to prove that RTO refused to renew the Fitness Certificate and that the complainant has stopped running the vehicle and suffered huge loss and that the complainant was earning Rs.16,500/- at the rate of Rs.550/- per day and that from 17-2-2004 the said vehicle kept idle and that on account of non usage of the vehicle the complainant has got lost Rs.550/- per day amounting to Rs.5,28,000/- for two years 8 months as alleged in the complaint. It is also denied that the loss is only due to fixing of assembled, locally made chassis by opposite party No.2 and that the manufacture of unnumbered chassis by opposite party No.1 without its number resulted in the refusal by RTO Officials to renew the Fitness Certificate. In view of the above facts, it is denied that there is deficiency of service and unfair trade practice on the part of opposite party No.1 and therefore the complainant is not entitled for any reliefs. It is further stated that it is incorrect to state that assembled chassis was fitted and that there was any unfair trade practice by the opposite parties. In the notice dated 31-10-2005 the complainant has not stated about any loss occurred as alleged or at all caused to him and it is denied that opposite party No.1 is responsible for any loss caused. Opposite party No.1 is a reputed company and does not participate in any unfair trade practice, opposite party No.2 has replaced all the damaged parts including the body shell of the vehicle by new spare parts. The complaint is barred by limitation as the cause of action, if any arose prior to 2 years, prior to from the date of filing the compliant. Hence opposite party No.1 cannot be held liable. It is stated that after sending an interior reply to their advocate/complainant, opposite party No.1 sent further reply letter dated 27-3-2006 thereby reclarifying the situation to the complainant. Hence under the circumstances the complainant is not entitled to get any relief from this Forum. The complainant failed to prove nor provided any amounts as mentioned in the complaint or to claim any interest or costs. Hence the complaint is liable to be dismissed with costs.
4. Opposite party No.2 filed a counter denying the contents of the complaint contending that he is only an authorized service centre of opposite party No.1. This opposite party No.2 is not selling the vehicles, therefore the allegation in Para 1 of the complaint that the complainant purchased a TATA India Car manufactured by opposite party No.1 from this opposite party is absolutely false. This opposite party does not know from where a complainant purchased the TATA Indica Car. The TATA Indica Car of the complainant was caught repaired with this opposite party and the body shell of the said vehicle was replaced by this opposite party. Opposite party No.2 does not keep stock of body shells. On the request of the complainant, opposite party No.2 placed an order with opposite party No.1 for a new body shell without doors to be fixed to the vehicle of the complainant and it was supplied by opposite party No.1 to opposite party No.2 under Invoice No.973861764 dated 23-1-2004 and the same was fixed to the vehicle of the complainant by opposite party No.2 and the vehicle was delivered to him after the completion of the repairs on 18-2-2004. At the time when the complainant asked opposite party No.2 to change body shell of the vehicle he was informed by opposite party No.2 that the new body shell with not have any chassis number. Normally when the vehicle is manufactured by the company, it will give the chassis number and the engine number to the vehicle. The said numbers will be embossed on the chassis and the engine by the company. Opposite party No.2 has no authority or responsibility to give the chassis number. As the complainant wanted opposite party No.2 to change the body shell opposite party No.2 placed an order for the new body shell to opposite party No.1 and the body shell that was supplied by opposite party No.1 was fixed by this opposite party to the vehicle of the complainant. There is no deficiency of service on the part of opposite party No.2. The body shell that was supplied by opposite party No.1 contains its part number as 26786001 0104 and apart from it, it also contains a serial number which is embossed on it. The allegation of the complainant is that the body shell that was fixed to his vehicle is a locally assembled one and it is not an original one, manufactured by opposite party No. 1 company are all false and invented for the purpose of this complaint. It is incorrect to state that renewal of fitness certificate was refused by the RTO due to non visibility of chassis number on the body shell. As seen from the allegations of the complainant that the complainant is said to have kept the vehicle idle without running due to non-renewal of fitness certificate by the RTO from 17-2-2004. If that is so, the complainant has come to know about non mentioning of chassis number on the body shell prior to 17-2-2004 itself. If that is so he should have filed this complaint on or before 17-2-2006. But the present complaint is filed on 9-11-2006, after the expiry the period of limitation for filling the complaint. Hence, the complaint filed by the complainant is barred by limitation and as such is liable to be dismissed. The allegation mentioned in the complaint that the complainant is used to earn Rs.16,500/- per month @ Rs.550/- per day and that on account of non-renewal fitness certificate he had to keep the vehicle idle from 17-2-2004 and as such he has lost earnings to a tune of Rs.5,28,000/- for 2 years and 8 months are all false and are invented for the purpose of this complaint. Opposite party No.2 is neither authorized to give the chassis number nor he has the responsibility to give the chassis number and such he has not rendered any deficiency of service nor he has played any unfair trade practice and as such opposite party No.2 is not liable to pay any compensation to the complainant. Hence to dismiss the complaint with costs.
5. Heard arguments both sides.
6. The point that arises for consideration herein is : whether the complainant proved the deficiency of service on the part of the opposite parties?
7. Exs. A-1 to A-5 are marked for the complainant. Ex.A-1 is service bill (credit) dated 18-2-2004 for the vehicle No.AP 21 U8761, Ex.A-2 is the spare parts credit bill dated 18-2-2004, Ex A-3 bunch of cash receipts issued by opposite party No.2 to the complainant, Ex.A-4 is the office copy of legal notice issued against opposite parties 1 and 2, dated 31-10-2005 with postal acknowledgements, Ex.A-5 is the reply letter from opposite party No.1 dated 22-11-2005.
8. Exs B-1 to B-9 are marked for the opposite parties. Ex.B-1 is the Notarized copy of authorization, dated 28-6-2005, Ex.B-2 is the attested copy of letter of authority in favour of Mr.V.R. Middela, dated 24-1-2007, Ex.B-3 is the reply notice, dated 27-3-2006 along with courier receipt, Ex.B-4 is the job card, dated 1-12-2003, Ex.B-5 spare parts quotation dated 3-12-2003, Ex.B-6 spare parts bill dated18-2-2004, Ex.B-7 service quotation, dated 6-12-2003, Ex.B-8 service bill dated 18-2-2004, Ex.B-9 Invoice, dated 23-1-2004.
9. We have gone through the contents of the complaint, counters filed by the opposite parties, affidavit of both parties, interrogatories filed on either side and documents filed herein and written arguments and relevant material available on record.
10. It is relevant to note that the complainant who is native of Koilakuntla village had purchased a TATA Indica Car from opposite party No.2 which was manufactured by opposite party No.1 Opposite party No.1 is the manufacturer of the replaced chassis of the TATA Indica Car with Model Indica Euro II Diesel DLEMET, Chassis No.600132 JYZP 40198 and Engine No. 4751D102JYZP 40377. Opposite party No.2 is the proprietor of service centre of opposite party No.1. On 27-11-2001 the complainant purchased TATA Indica Car to run the same as Taxi to earn his livelihood from opposite party No.2 manufactured by opposite party No.1 for Rs.3,35,131/- . The said car met with an accident and was damaged on 26-11-2003. The staunch case of the complainant is that he purchased the car to run the same as taxi for his livelihood.
11.The contention of the opposite parties is that the complainant has failed to make any averments in the pleadings that he is plying the subject vehicle for his livelihood. Their next contention is the complainant does not fall within the exclusion provided under section. The complainant has deliberately suppressed the details of his occupation in the cause title as well as in the description of the parties with a view to conceal the fact that he is operating the subject vehicle for commercial gain and with a view to some how bring the complaint within the jurisdiction of this Forum. Their further contention is as per settled law, if a person carrying on a commercial activity purchases goods, it has to be necessarily pleaded and proved by him that the goods were purchased for his use exclusively for the purpose of earning his livelihood by means of self employment alone. In the absence of such a pleading and sufficient proof to that effect such person cannot be a consumer. In support of their contention the opposite parties relied on a decision reported in 1995 CPJ 1 (SC) (Laxmi Engineering Works Vs.PSG. Industrial Institute)
12. After going through the material available on record adduced on either side we have to necessarily accept the contention of the opposite parties. At the out set it is to be stated that the complainant is not a consumer. Here the first and foremost question that is to be decided is whether the complainant is a consumer as defined Under Section 2 1 (d) of C.P.Act. The staunch contention of the opposite parties is that the complainant is not a consumer so as to attract the above said definition. It is, therefore, useful to extract Section 2 (1) (d) hereunder:
“ Section 2 (1) (d) : “ Consumer” means, any person who,
(a)………….
(b) 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 purpose”.
In the present case as seen from the case of the complainant he has purchased the vehicle to run the same for the purpose of earning his livelihood. From the explanation of Sec.2 (1) (d) makes it clear that only a person who purchases the goods: uses exclusively for the purpose of earning his livelihood by means of self employment alone can be a consumer. As seen from the complaint it is totally silent on this aspect and if that is so an adverse inference has to be drawn against the complainant. On the other hand the fact that the complainant has employed driver to ply the vehicle and he is not driving the same himself further fortifies the stand taken by the opposite parties that the complainant is not a consumer. As per the settled law, if a person carrying on a commercial activity purchase for the goods, it has to be necessarily pleaded and proved by him that the goods were purchase for his use exclusively for the purpose of earning his livelihood by means of self employment alone. It is to be stated that in the absence of and sufficient proof to that effect, such person cannot claim to be a consumer. Their Lordships in a reported decision 1995 CPJ I (SC) have held that a person who buys goods and use them himself, exclusively for the purpose of earning his livelihood by means of self employment is within the definition of the expression “Consumer”.
In a reported decision I (1991) CPJ 44 (National Consumer Dispute Redressal Commission, New Delhi) their Lordships have held that: “As per the definition of the expression “Consumer” contained in Section 2 (1) (d) (i) of the Act, the said expression would not include “a person who obtains goods for resale or for any commercial purpose”. There cannot be any doubt that the plying of a taxi for hire is clearly a ‘commercial purpose’ and the purchase of a vehicle made, specifically, for being used as a taxi is a purchase made for a commercial purpose. Such being the position, the complainant before the State Commission was not a consumer and the State Commission should have rejected the Petition on that short ground”.
We are of the opinion that the above cited decision amply applicable to the facts of the present case on the ground that the complainant has purchased the TATA Indica Car to run the same as Taxi to earn his livelihood from opposite party No.2 manufactured by opposite party No.1. Hence as per the circumstances prevailed herein the complainant is not a consumer and the complaint is liable to be dismissed on this ground alone.
13. The contention of the complainant is that is due to accident the entire chassis (body shell) doors etc., or damaged. He handed over the damaged vehicle to opposite party No.2 for repair and replacement of chassis with a new company made chassis. His further contention is opposite party No.2 repaired the damaged vehicle and replaced the chassis with locally made chassis. The opposite party No.2 collected Rs.2,12,025-75/- towards a new company made chassis costs. His further contention is believing the newly fitted chassis as a company made, the complainant took the delivery of the vehicle from opposite party No.2. His further contention is as the vehicle is a taxi the said vehicle is supposed to get Fitness certificate by the RTO from a Brake Inspector for every two years. As such on 16-2-2004 the complainant went to RTO office, Kurnool for Fitness certificate and for payment of fitness certificate fee after insuring his vehicle with Oriental Insurance Company. The RTO officials, brake inspector checked the chassis number for renewal of fitness certificate, but the company chassis number is not appear on the chassis. Then the said RTO officials refused to renewal the Fitness Certificate. His further contention is he came to know that the chassis is not the original made by the company, but it is duplicate and locally assembled chassis. His further contention is due to refusal of fitness certificate renewal by RTO, the complainant is forced to stop running of the vehicle and kept idle which resulted him to suffer huge loss of his livelihood. Every month he used to earn Rs.16,500/- @ 550/- per day since 17-2-2004, the said vehicle kept idle without running. His further contention is due to keeping idle of the vehicle he has loss Rs.550/- per day for a tune of Rs.5,28,000/- for 2 years 8 months till the date of filing of the complainant. The loss is only due to fixing of assembled locally made chassis by the opposite party No.2. His last contention is as opposite party No.2 has played unfair trade practice by fixing locally made assembled chassis with the member of TATA Indica Company and collected the price of original TATA Indica Company Chassis and as such there is every deficiency of service on the part of opposite parties. In support of his contention he filed Ex.A1 service bill dated 18-2-2004, Ex.A2 spare parts credit bill dated 18-2-2004, Ex.A3 bunch of cash receipts issued by opposite party No.2, Ex.A4 is the legal notice issued by him to opposite party No.1 and 2 dated 31-10-2005 and Ex.A5 is the reply letter issued from opposite party No.2 dated 22-11-2005.
14. On the other hand opposite party No.1 is admitting that complainant purchased the vehicle in question and it met with an accident and that the same was repaired at opposite party No.2 work shop. The contention of opposite party No.1 is the vehicle being admitted considerably the entire body shell which have chassis number on it had to be replaced as a spare part by another original body shell from the manufacturer. The new body shell was provided by opposite party No.1 from its regional warehouse at Bangalore on 21-3-2004 as per Invoice No. 973861764. It was the duty of the complainant to bring to the notice of RTA the accident and the subsequent alteration then to the vehicle in terms of which the owner has to have report. The alteration to the RTA within whose jurisdiction he resides and get special exemption in this regard. The opposite party No.1 is not responsible for the default of the complainant in the necessary action to be taken with the concerned RTA and cannot be hold liable for deficiency of service in this regard. Further replacement of body shell and due to repairs the vehicle was handed over to the complainant who has there after been using the same for his commercial purpose. His next contention is out of the chassis numbers of a vehicle is unique and it cannot be given to any other chassis. The complainant ought to have followed up with the RTA which he failed to do and he is neither seeking to put the owners and liable for his mistake and failure to apply with a Motor Vehicles Act, on the opposite parties. His next contention is a chassis number is given to a vehicle at the time of manufacture by the manufacturer opposite party No.1. As in the present case with an accident occurs and measure portion or basic feature is altered, the chassis number will always continue and cannot be under go change. A chassis number given to vehicle will always continue and cannot be altered. The case of the complainant alleging deficiency of service on the ground that the body shell was replaced but did not carry a chassis number. His next contention is as provided under Motor Vehicles Act, the complainant ought to have taken necessary steps with the RTA for the alteration but has failed to do so. His next contention is the complainant cannot now seek to take advantage of his own mistake or wrong and allege a deficiency in service on the part of opposite parties. In support of their contention filed Ex.B3 reply notice dated 27-3-2006, Ex.B4 Job card dated 1-4-2003, Ex.B5 spare parts quotation dated 3-12-2003, Ex.B6 as spare parts bill dated 18-2-2004, Ex.B7 service quotation dated 6-12-2003, Ex.B8 service bill dated 18-2-2004, Ex.B9 Invoice dated 23-1-2004.
15. After going through the rival contention we have to necessarily reject the contention of the complainant. In the present case it is not in dispute that the vehicle purchased by the complainant from the shop of opposite party No.2 manufactured by opposite party No.1 and subsequently the said car met with an accident is not in dispute. The staunch contention of the complainant is that while repairing car opposite party No.2 used locally made spare parts. His next contention is that as opposite party has used locally made spare parts they does not contain the number of manufacturer and so RTA refused to renew the fitness certificate. The contention of opposite party No.2 is that he has no authority or responsibility to give the chassis number. As the complainant wanted opposite party No.2 to change the body shell he placed an order for the new body shell to opposite party No.1 and the body shell that was supplied by opposite party No.1 was fixed by opposite party No.2 to the vehicle of the complainant and as such there is no deficiency of service on his part. It is to be remembered that though the complainant has come forward with a plea that the opposite party No.2 has fitted the locally made spare parts they do not contain the manufacturer number and so the RTA and brake inspector has refused to issue fitness certificate. The contention of the complainant does not stand for acceptance for the reason that opposite party No.2 has filed Ex.B4 job card, Ex.B5 spare parts quotation, Ex.B6 spare parts bill, Ex.B7 service quotation, Ex.B8 service bill and Ex.B9 invoice, if that is so if at all opposite party No2 has not fitted the original spare parts manufactured by opposite party No.1 he would not have come forward stating that he has fixed the original spare parts manufactured by opposite party No.1. Now it is the contention of opposite party No.2 that new body shell was provided by him from its original ware house at Bangalore on 23-1-2004 as per invoice. The contention of the opposite parties is also amply supporting with that of Exs.B4,B5, B6, B7, B8 and Ex.B9 as discussed supra. This is to be remembered that opposite party No.1 is repudiated company does not participate in any unfair trade practice. It is to be stated that the opposite party No.2 has replaced all the damaged parts including the body shell of the vehicle by new spare parts. On the other hand the complainant has not filed any documents in support of his contention that on which day the RTO visited the vehicle and refused to issue renewal fitness certificate. The complainant neither filed at least the affidavit of RTO nor taken any steps to summon the RTO to examine him in order to substantiate his contention. Hence, virtually there is no evidence that the RTO has visited the vehicle and verified the chassis number as come forward by the complainant.
16. The complainant has claimed as the vehicle was detained for non issue of renewal fitness certificate by RTA, he sustained loss to a sum of Rs.16,500/- per month @ Rs.550/- per day from 17-2-2004. His staunch case is that he sustained loss to a total sum of Rs.5,28,000/- for non use of the vehicle. It is to be stated that the complainant did not file any proof in support of his claim. Above all the complaint is liable to be dismissed on a short ground that he is not at all a consumer as discussed as supra. Hence, under the circumstances we are of the opinion that the complainant utterly fail to establish that there is deficiency of service on the part of the complainant. Hence, the complaint is liable to be dismissed.
In the result, the complaint is dismissed. Both parties are directed to bear their own costs.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open Forum on this the 31st day of January, 2008.
LADY MEMBER I/C PRESIDENT
Appendix of evidence
Witness examined
For Complainant: For Opposite parties:
-Nil- -Nil
Documents marked
For the Complainant:
Ex.A-1. Service bill (credit), dated 18-2-2004,
for the vehicle No.AP21U8761.
Ex.A-2. Spare parts credit bill, dated 18-2-2004, for the
Vehicle No.AP21U8761. (No. in 3 papers).
Ex.A-3. Bunch of cash receipts bills in seven papers issued
by opposite party No.2 to complainant.
Ex.A-4. Office copy of legal notice, dated 31-10-2005 with its
postal acknowledgements (2) by opposite parties 1 &2.
Ex.A-5. Reply, dated 22-11-2005 by opposite party No.1 to Ex.A4.
For the opposite parties:
Ex.B-1 Notarized attested of authorization, dated 28-6-2005.
Ex.B-2. Attested copy of letter of authority in favour of
Mr. V.R .Middela, dated 22-1-2007.
Ex.B3. Reply notice, dated 27-3-2006 along with courier receipt.
Ex.B4. Job card, dated 1-12-2003.
Ex.B5. Spare parts quotation, dated 3-12-2003.
Ex.B6. Spare parts bill, dated 18-2-2004.
Ex.B7. Service quotation, dated 6-12-2003.
Ex.B8. Service bill, dated 18-2-2004.
Ex.B9. Invoice, dated 23-1-2004.
By the Forum:
-Nil- I/C PRESIDENT
Copy to :-
1.Sri. M. Sivaji Rao, Advocate,Kurnool for the complainant.
2. Sri. G. Sravan Kumar, Advocate, Kurnool for the opposite party No.1.
3.Sri Syed Shafaqath Hussain , Advocate, Kurnool for the opposite party
No.2.
Copy was made ready on :
Copy was dispatched on:
Copy was delivered to parties:
14. The contention of the complainant is that the contention is due to accident the entire chassis (body shell) doors etc., or damaged. He handed over the damaged vehicle to opposite party No.2 for repair and replacement of chassis with a new company made chassis. His further contention is opposite party No.2 repaired the damaged vehicle and replaced the chassis with locally made chassis. The opposite party No.2 collected Rs.2,12,025-75/- towards a new company made chassis costs. His further contention is believing the newly fitted chassis as a company made, the complainant took the delivery of the vehicle from opposite party No.2. His further contention is as the vehicle is a taxi the said vehicle is supposed to get Fitness certificate by the RTO from a Brake Inspector for every two years. As such on 16-2-2004 the complainant went to RTO office, Kurnool for Fitness certificate and for payment of fitness certificate fee after insuring his vehicle with Oriental Insurance Company. The RTO officials, brake inspector checked the chassis Number for renewal of fitness certificate, but the company chassis number is not appear on the chassis. Then the said RTO officials refused to renewal the Fitness Certificate. His further contention is he came to know that the chassis is not the original made by the company, but it is duplicate and locally assembled chassis. His further contention is due to refusal of fitness certificate renewal by RTO, the complainant is forced to stop running of the vehicle and kept idle which resulted him to suffer huge loss of his livelihood. Every month he used and Rs.16,500/- @ 550/- per day since 17-2-2004, the said vehicle kept idle without running. His further contention is due to keeping idle of the vehicle he has loss Rs.550/- per day for a tune of Rs.5,28,000/- for 2 years 8 months till the date of filling of the complainant. The loss is only due to fixing of assembled locally made chassis by the opposite party No.2. His last contention is as opposite party No.2 has played unfair trade practice by locally made assembled chassis with the member of TATA Indica Company and collected the price of original TATA Indica Company Chassis and as such there is every deficiency of service on the part of opposite parties. In support of his contention he filed Ex.A1 service bill dated 18-2-2004, Ex.A2 spare parts credit bill dated 18-2-2004, Ex.A3 bunch of cash seeds issued by opposite party No.2, Ex.A4 is the legal notice issued by him to opposite party No.1 and 2 dated 31-10-2005 and Ex.A5 is the reply letter issued from opposite party No.2 dated 22-11-2005.
On the other hand opposite party No.1 is admitting that complainant purchased the vehicle in question and it met with an accident and that the same was repaired at opposite party No.2 work shop. The contention of opposite party No.1 is the vehicle being admitted the entire body shell which have Chassis Number on it had to be refused as a spare part by another original body shell from the manufacturer. The new body shell was provided by opposite party No.1 from its regional warehouse at Bangalore on 21-3-2004 as per Invoice No. 973861764. It was the duty of the complainant to bring to the notice of RTA the accident and the subsequent alteration then to the vehicle in terms of which the owner has to have report. The alteration to the RTA within whose jurisdiction he resides and get special exemption in this regard. The opposite party No.1 is not responsible for the default of the complainant in the necessary action to be taken with the concerned RTA and cannot be hold liable for deficiency of service in this regard. Further replacement of body shell and due to repairs the vehicle was handed over to the complainant who has there after been using the same for his commercial purpose. His next contention is out of the Chassis numbers of a vehicle is unique and it cannot be given to any other chassis. The complainant ought to have followed up with the RTA which he failed to do and he is neither seeking to put the owners and liable for his mistake and failure to apply with a Motor Vehicles Act, on the opposite parties. His next contention is a chassis number is given to a vehicle at the time of manufacture by the manufacturer opposite party No.1. As in the present case with an accident occurs and measure portion or basic feature is altered, the Chassis Number will always continue and cannot be under go change. A Chassis Number given to vehicle will always continue and cannot be altered. The case of the complainant alleging deficiency of service on the ground that the body shall was replaced but did not carry a Chassis Number. His next contention is as provided under Motor Vehicles Act, the complainant ought to have taken necessary steps with the RTA for the alteration but has failed to do so. His next contention is the complainant cannot now seek to take advantage of his own mistake or wrong and alleging deficiency in service on the pat of opposite parties.
12. After going through the material available on record adduced on either side we have to necessarily accept the contention of the opposite parties. At the out set is to be stated that the complainant is not a consumer. Here the first and foremost question that is to be decided is whether the complainant is a consumer as defined Under Section 2 1 (d) of C.P.Act. The staunch contention of the opposite parties is that the complainant is not a consumer so as to attract the above said definition. It is, therefore, useful to extract Seciton 2 (1) (d) hereunder:
“ Section 2 (1) (d) : “ Consumer” means, any person who,
(a)………….
(b) 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 purpose”.
In the present case as seen from the case of the complainant he has purchased the vehicle to run the same for the purpose of earning his livelihood. From the explanation of Sec.2 (1) (d) makes it clear that only a person who purchases the goods: uses exclusively for the purpose of earning his livelihood by means of self employment alone can be a consumer. As seen form the complaint it is totally silent on this aspect and if that is so an adverse inference has to be drawn against the complainant. On the other hand the fact that the complainant has employed driver to ply the vehicle and he is not driving the same himself further fortifies the stand taken by the opposite parties that the complainant is not a consumer. As per the settled law, if a person carrying on a commercial activity purchases the goods, it has to be necessarily pleaded and proved by him that the goods were purchase for his use exclusively for the purpose of earning his livelihood by means of self employment alone. It is to be stated that in the absence of subject reading and sufficient proof to that effect, such person cannot claim to be a consumer. Their Lordships in a reported decision 1995 CPJ I (SC) have held that a person who buys goods and use them himself, exclusively for the purpose of earning his livelihood by means of self employment is within the definition of the expression “Consumer”.
In a reported decision I (1991) CPJ 44 (National Consumer Dispute Redressal Commission, New Delhi) their Lordships have held that: “As per the definition of the expression “Consumer” contained in Section 2 (1) (d) (i) of the Act, the said expression would not include “a person who obtains goods for resale or for any commercial purpose”. There cannot be any doubt that the plying of a taxi for hire is clearly a ‘commercial purpose’ and the purchase of a vehicle made, specifically, for being used as a taxi is a purchase made for a commercial purpose. Such being the position, the complainant before the State Commission was not a consumer and the State Commission should have rejected the Petition on that short ground”.
The contention of the complainant is that the contention is due to accident the entire chassis (body shell) doors etc., or damaged. He handed over the damaged vehicle to opposite party No.2 for repair and replacement of chassis with a new company made chassis. His further contention is opposite party No.2 repair the damaged vehicle and replaced the chassis with locally made chassis. The opposite party No.2 collected Rs.2,12,025-75/- towards a new company made chassis costs. His further contention is believing the newly fitted chassis as a company made, the complainant took the delivery of the vehicle from opposite party No.2. His further contention is as the vehicle is a taxi the said vehicle is supposed to get Fitness certificate by the RTO from a Brake Inspector for every two years. As such on 16-2-2004 the complainant went to RTO office, Kurnool for Fitness certificate and for payment of fitness certificate fee after insuring his vehicle with Oriental Insurance Company. The RTO officials, brake inspector checked the chassis number for renewal of fitness certificate, but the company chassis number is not appear on the chassis. Then the said RTO officials refused to renewal the Fitness Certificate. His further contention is he came to know that the chassis is not the original made by the company, but it is duplicate and locally assembled chassis. His further contention is due to refusal of fitness certificate renewal by RTO, the complainant is forced to stop running of the vehicle and kept idle which resulted him to suffer huge loss of his livelihood. Every month he used to and Rs.16,500/- @ 550/- per day since 17-2-2004, the said vehicle kept idle without running. His further contention is due to keeping idle of the vehicle he has loss Rs.550/- per day for a tune of Rs.5,28,000/- for 2 years 8 months till the date of filling of the complainant. The loss is only due to fixing of assembled locally made chassis by the opposite party No.2. His last contention is as opposite party No.2 has played unfair trade practice by fixing locally made assembled chassis with the member of TATA Indica Company and collected the price of original TATA Indica Company Chassis and as such there is every deficiency of service on the part of opposite parties. In support of his contention he filed Ex.A1 service bill dated 18-2-2004, Ex.A2 spare parts credit bill dated 18-2-2004, Ex.A3 bunch of cash receipts issued by opposite party No.2, Ex.A4 is the legal notice issued by him to opposite party No.1 and 2 dated 31-10-2005 and Ex.A5 is the reply letter issued from opposite party No.2 dated 22-11-2005.
On the other hand opposite party No.1 is admitting that complainant purchased the vehicle in question and it met with an accident and that the same was repaired at opposite party No.2 work shop. The contention of opposite party No.1 is the vehicle being admitted considerably the entire body shell which have chassis number on it had to be replaced as a spare part by another original body shell from the manufactuer. The new body shell was provided by opposite party No.1 from its regional warehouse at Bangalore on 21-3-2004 as per Invoice No. 973861764. It was the duty of the complainant to bring to the notice of RTA the accident and the subsequent alteration then to the vehicle in terms of which the owner has to have report. The alteration to the RTA within whose jurisdiction he resides and get special exemption in this regard. The opposite party No.1 is not responsible for the default of the complainant in the necessary action to be taken with the concerned RTA and cannot be hold liable for deficiency of service in this regard. Further replacement of body shell and due to repairs the vehicle was handed over to the complainant who has there after been using the same for his commercial purpose. His next contention is out of the chassis numbers of a vehicle is unique and it cannot be given to any other chassis. The complainant ought to have followed up with the RTA which he failed to do and he is neither seeking to put the owners and liable for his mistake and failure to apply with a Motor Vehicles Act, on the opposite parties. His next contention is a chassis number is given to a vehicle at the time of manufacture by the manufacturer opposite party No.1. As in the present case with an accident occurs and measure portion or basic feature is altered, the chassis number will always continue and cannot be under go change. A chassis number given to vehicle will always continue and cannot be altered. The case of the complainant alleging deficiency of service on the ground that the body shall was replaced but did not carry a chassis number. His next contention is as provided under Motor Vehicles Act, the complainant ought to have taken necessary steps with the RTA for the alteration but has failed to do so. His next contention is the complainant cannot now seek to take advantage of his own mistake or wrong and allege a deficiency in service on the pat of opposite parties. In support of their contention failed Ex.B3 reply notice dated 27-3-2006, Ex.B4 Job card dated 1-4-2003, Ex.B5 spare parts quotation dated 3-12-2003, Ex.B6 as spare parts bill dated 18-2-2004, Ex.B7 service quotation dated 6-12-2003, Ex.B8 service bill dated 18-2-2004, Ex.B9 Invoice dated 23-1-2004.
After going through the rival contention we have to necessarily reject the contention of the complainant. In the present case it will not in dispute that the vehicle purchased by the complainant form the shop of opposite party No.2 manufactured by opposite party No.1 and subsequently the said car met with an accident is not in dispute. The staunch contention is opposite party No.2 is that while repairing car opposite party No.2 used locally made spare parts. His next contention is that as opposite party has used locally made spare parts they does not contain the number of manufacturer and so RTA refused to renew the fitness certificate. The contention of opposite party No.2 is has no authority or responsibility to give the chassis number. As the complainant wanted opposite party No.2 to change the body shell he placed an order for the new body shell to opposite party No.1 and the body shell that was supplied by opposite party No.1 was fixed by opposite party No.2 to the vehicleof the complainant and as such there is no deficiency of service on his part. It is to be remembered that though the complainant has come forward with a plea that the opposite party No.2 has fitted the locally made spare parts they do not contain the manufacturer number and so the RTA and brake inspector has refused fitness certificate. The contention of the complainant does not standing for acceptance for the reason that has filed Ex.B4 is the job card, Ex.B5 spare parts quotation, Ex.B6 spare parts bill, Ex.B7 service quotation, Ex.B8 service bill and Ex.B9 invoice, in that is so if at all opposite party No2 has not fitted the original spare parts manufactured by opposite party No.1 he would not have come forward stating that he has fixed the original spare parts manufactured by opposite party No.1. Now it is the contention of opposite party No.2 that new body shell was provided by him form its original ware house at Bangalore on 23-1-2004 as per invoice. The contention of the opposite parties is also amply supporting with that of Exs.B4,B5, B6, B7, B8 and Ex.B9 as discussed supra. This is to be remembered that opposite party but is repudiated company does not participate in any unfair trade practice. It is to be stated that the opposite party No.2 has replaced all the damaged parts including the body shell of the vehicle by new spare parts. On the other hand the complainant has not filed any documents in support of his contention that on which day the RTO visited the vehicle and refused to issue renewal fitness certificate. The complainant neither filed at least the affidavit of RTO nor taken any steps to summon the RTO to examine him in order to substantiate his contention. Hence, virtually there is no evidence that the RTO has visited the vehicle and verified the chassis number has come forward by the complainant.
The complainant has claimed as the vehicle was detailed for non issue of renewal fitness certificate by RTA, he sustained loss to a sum of Rs.16,500/- per month @ Rs.550/- per day from 17-2-2004. As staunch case that he sustained to a total sum of Rs.5,28,000/- for non use of the vehicle. It is to be stated that the complainant did not file any proof in support of his claim. Above all the complaint is liable to be dismissed on a short ground that he is not at all consumer as dismissed as supra. Hence, under the circumstances we are of the opinion that the complainant utterly fail to establish that there is deficiency of service on the part of the complainant. Hence, the complaint is liable to be dismissed.
We are of the opinion that the above cited decision amply applicable to the facts of the present case on the ground that the complainant has purchased the TATA Indica Car to run the same as Taxi to earn his livelihood form opposite party No.2 manufactured by opposite party No.1. Hence as per the circumstances prevailed herein the complainant is not a consumer and the complaint is liable to be dismissed on this ground alone.
In the result, the complaint is dismissed. Both parties are directed to bear their own costs.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open Forum on this the 31ST day of January, 2008.
LADY
