STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

M/s Regency Softech Pvt. Ltd. #70, Sector-2, Chandigarh 160001 through its Director Mr. Balvir Sehgal.

                                                                             .…Complainant

Versus

1.       M/s Toyota Kirloskar Motors Pvt. Ltd., Plot No.1, Bidai Industrial Area, Ramanagar, Bangalore-562106 through its Managing Director Hiroshi Nakagawa.

2.       M/s EM PEE Motors Ltd., Pioneer Toyota, Plot No.177 H & I, Phase I, Industrial Area, Chandigarh 160002 through its Managing Director Sh. Parminder Singh.

                                                                   …. Opposite Parties

BEFORE:      JUSTICE SHAM SUNDER, PRESIDENT

                   MRS. NEENA SANDHU, MEMBER

                   S.  JAGROOP  SINGH   MAHAL, MEMBER

Argued by: Sh. Abhimanyu Sharma, Adv. for the complainant.

                   Sh. S.R. Bansal, Adv. for Opposite Party No.1

                   Sh. Gaurav Bhardwaj, Adv. for Opposite Party No.2

PER  JAGROOP  SINGH   MAHAL, MEMBER

                   Briefly stated, the facts of the case, are that the complainant purchased a Toyota Fortuner 3.0L 4WD MT SUV having engine No.1KD 6468071 for 19,03,950/- (wrongly mentioned as Rs.19,39,520.00) from Opposite Party No.2 the authorized dealer of Opposite Party No.1 with warranty of 36 months or 1,00,000 KM,  whichever comes first. According to the complainant apart from the warranty, he also took Prepaid Service Package (Smile Package) from Opposite Party No.2 by paying Rs.5,500/-  with validity of 20000 Km or 3.12.2011, which not only offered repair, free of costs for one year but also free labour charges for any kind of repair, which otherwise was not covered under warranty. The assertion of the complainant is that the said vehicle started giving problem within one month of its purchase such as, failure of breaks, noise, heavy steering wheel and sticky gears, which were brought to the notice of Opposite Party No.1 on numerous occasions.  The said vehicle was sent for check up as and when required by Opposite Party No.2 for rectification of the defects besides three free maintenance services but they could not rectify the same being a manufacturing defect. Thereafter on 1.7.2010 the total front wheel disc brake assembly was replaced by the Opposite Parties. But on the night of 26.2.2011 the said vehicle again gave problem and the complainant immediately approached Opposite Party No.2 on 28.2.2011 and as required by Opposite Party No.2 the complainant left the vehicle with it for complete check up.   On 29.2.2011 Opposite Party No.2 informed him that the clutch plate, pressure including release bearing and flywheel were found damaged. The complainant requested them to get inspected the damaged parts from its engineers and also get tested from testing house other than Toyota to know the exact reason for damage at low mileage. But they did not do anything nor gave any report for such damage. The complainant submitted that he was convinced after getting the damaged parts inspected from other technical person that the same was due to manufacturing defect, wrong adjustment of clutch assembly or sub-standard clutch plate assembly or malfunctioning of hydraulic cylinder. The complainant alleged that Opposite Party No.2 kept the vehicle with it for 7 days for repair and did not replace hydraulic cylinder on the ground of non-availability of the same and despite warranty of 36 months and extended service package, they charged Rs.36,953/- for repair, which he paid under protest. It was alleged in the absence of any fact finding technical report; just replacement of damaged parts does not resolve the basic manufacturing defect of the vehicle. Hence there is risk to the life of the complainant while driving the said vehicle due to sudden failure of its parts. The complainant submitted that since the vehicle gave problem in normal terrain, thus, he has no confidence to drive the vehicle on rough and hilly terrains and he had yet to drive the same on the rough and hilly terrains. The complainant sent emails to the Opposite Parties vide annexures C-10 and C-11 but they did not consider the genuine claim of the complainant. The complainant alleged that he purchased the said car for the luxury and comfort as promised by the company in its brochure but the Opposite Parties failed to rectify the defect to the satisfaction of the complainant, which amounts to unfair trade practice and deficiency in service on the part of the Opposite Parties. Hence, this complaint.

2                       In its reply Opposite Party No.1 took preliminary objection that the complainant, Regency Softech Private Ltd., is a company incorporated under the Companies Act, 1956 and the complainant had acquired the said vehicle for commercial use in respect of the said business and therefore, cannot be considered as consumer within the meaning of Consumer Protection Act, 1986 (hereinafter referred to as the Act). Hence the complaint is liable to be dismissed being not maintainable. The answering Opposite Party admitted purchase of vehicle and warranty thereof. It has been denied that the vehicle was suffering from any manufacturing defect. The  Opposite Parties provided full services to the complainant as and when the vehicle was brought to the service station of Opposite Party No.2 and honored its warranty obligations as is evident from the details of services given in para 6 of the reply. Hence there is no deficiency on the part of the answering Opposite Party.  Denying all other allegations made in the complaint, prayer has been made for dismissal of the complaint.

3                       Opposite Party No.2 in its reply took similar preliminary objection as has been taken by Opposite Party No.1 regarding maintainability of complaint that the complainant Regency Softech Private Ltd is a company incorporated under the Companies Act, 1956 and the complainant had acquired the said vehicle for commercial use in respect of the said business and therefore, cannot be considered as consumer within the meaning of Consumer Protection Act, 1986. Hence the complaint is not maintainable. Purchase of the vehicle and its warranty has been admitted. It has been submitted by the answering Opposite Party that the complainant did not mention the parts which were not covered under the warranty. The answering Opposite Party submitted that it is no where mentioned in the smile pack that worn brake pads, and lining or worn clutch lining were covered under the smile pack. However, the discounts and services mentioned therein were duly provided to the complainant. There was no manufacturing defect in the vehicle and the complainant was provided full services as and when the vehicle was brought for service. Denying all other allegations levelled in the complainant Opposite Party No.2 submitted that there was no deficiency on its part. Hence a prayer for dismissal of the complaint has been made.

4                       The parties led evidence, in support of their case.

5                       We have heard learned Counsel for the parties, and have perused the record, carefully.

6                       As regards the manufacturing defect, the complainant mentioned in para 10 of the complaint as follows :-

“10.   That after inspecting the damaged parts which also got it done from other technical person, the complainant got convinced that this is all due to manufacturing defect, may be wrong adjustment of clutch assembly or sub-standard clutch plate assembly or malfunctioning of hydraulic cylinder, bearing etc.  Otherwise such worn out not possible at low mileage of 16790 KM.  Looking at the history, the vehicle was regularly got checked, serviced and road tested regularly by service engineers of respondent No.2.  Last checked at 16092 KM on 02.02.2011.”

7                       The complainant did not produce any evidence or report of the technical person mentioned in the above said paragraph.  On the other hand, on the directions of this Commission, the vehicle was examined by Om Parkash, Chief Technician, who submitted his report dated 18.11.2011 alleging that there was no such defect in the car.  The ld. Counsel for the complainant challenged this report on the ground that as per the order dated 20.10.2011, passed by this Commission, the car was to be examined at the workshop of OP-2 by the Engineers of OP-1 and since Om Parkash, aforesaid is neither an Engineer nor belongs to the staff of OP-1, therefore, this report cannot be accepted as correct.  A perusal of the report dated 18.11.2011 shows that Om Parkash, Chief Technician is working with OP-2 and not with OP-1.  In his report he nowhere mentions if he is an Engineer, in fact he did not mention any qualification which he may be having.  This report is, therefore, not in accordance with the directions issued by this Commission vide order dated 20.10.2011 and cannot be considered to be evidence to decide this fact.  However, even if this report is excluded, still there is no evidence produced by the complainant to prove that the vehicle suffered from a manufacturing defect.  Needless to mention that the onus to prove this fact was on the complainant and he having failed to adduce any evidence in support of his contention, cannot claim the replacement of the vehicle on account of any such manufacturing defect.  The mere fact that the vehicle was taken to the service station on several occasions would not be enough to prove the manufacturing defect.

8                       There is no dispute about it that the vehicle was repaired regarding which tax invoice (Annexure C-7) was generated for a sum of Rs.36,953/- which was paid by the complainant under protest.  The vehicle was under warranty.  None of the parts replaced by the OPs were consumable parts. The parts, however, got damaged during the warranty period regarding which the contention of the OPs is that these were damaged due to the wrong driving skill of the driver.   The complainant submitted the affidavit of Balvir Sehgal who its Director and authorized signatory mentioning in para 14 thereof that he owned best of vehicles and driven in India and overseas from time to time since 1970.  According to him, the complainant is having other SUV also alongwith Toyota Fortuner.  Balvir Sehgal, aforesaid had also issued a notice (Annexure C-10) in which also he mentioned that he has been driving the best of the cars like AMB/Fiat/Conteasa/ Tata Estate/Tata Safari/Scorpio/Honda City since 1965.  In the legal notice (Annexure C-11) also this fact was mentioned in para (xiii).  The OPs have not produced any evidence to suggest if Balvir Sehgal does not have good driving skills and the vehicle parts got damaged due to his fault.  It is, therefore, a false assertion when the OPs refused to repair the vehicle free of charge, the same being under the warranty.  The complainant was, therefore, not liable to pay the amount of Rs.36,953/- which was paid by him under protest.

9                       The next question would be whether the complainant is a ‘consumer’ as defined under section 2(1)(d) of the Act. The ld. Counsel for the OPs has argued that the complainant is a Company which is running its commercial business and the vehicle also was purchased for a ‘commercial purpose’ and the complainant is outside the purview of the Act.  It is not the case of the complainant if the vehicle was purchased by it  for the use of the Director or any other office bearers of the complainant company.  The complainant therefore, does not fall under the definition of ‘consumer’ because the goods have been purchased by it for the use of the Company which is doing a commercial business.

10                    In view of the above discussion, we are of the opinion that the present complaint is not maintainable before this Commission and the same is accordingly dismissed.  Parties are left to bear their own costs.

                    Copies of this order be sent to the parties free of charge.

Pronounced.

01 March, 2012

 [JUSTICE SHAM SUNDER]

PRESIDENT

 [NEENA SANDHU]

MEMBER

 [JAGROOP SINGH MAHAL]

MEMBER

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