NCDRC

NCDRC

RP/428/2013

DUGGIRALA PRASAD BABU - Complainant(s)

Versus

M/S. SKODA AUTO INDIA PVT. LTD. & 2 ORS. - Opp.Party(s)

MR/ SUYODHAN BYRAPANENI & MR. TATINI BASU

04 Mar 2014

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 428 OF 2013
 
(Against the Order dated 24/09/2012 in Appeal No. 496/2011 of the State Commission Andhra Pradesh)
WITH
IA/978/2013
1. DUGGIRALA PRASAD BABU
S/O LATE D RAMARAO CHOWDRY, R/O D.NO-8-5-10/5 OPP CHURCH ROAD, NTR NAGARM OLD GUJUWAKA, VISAKHAPATNAM
VISAKHAPATNAM - 530026
A.P
...........Petitioner(s)
Versus 
1. M/S. SKODA AUTO INDIA PVT. LTD. & 2 ORS.
REP BY ITS MANAGER DIRECTOR, PLOT NO-8-1/1 SHENDRA FIVE STAR INDUSTRIAL AREA, MIDC
AURANGABAD - 431201
MAHARASTRA
2. M/S MAHAVEER AUTO DAIGONISTIC PVT LTD.,
REP BY ITS PROPRIETIOR, D.NO-3-907, RAJ BHAWAN ROAD,SOMAJIGUDA
HYDERABAD - 500082
A.P
3. M/S MAHAVEER AUTO SHOW ROOM,
REP BY ITS PROP, MOURYA CHM,D.NO-39-6-71/3, NATIONAL HIGH WAY, OPP INDUSTRIAL ESTATE, VEBGAL RAO NAGAR,
VISAKHAPATNAM - 8
A.P
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
 HON'BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner :
Mr. Suyodhan Byrapaneni, Advocate
For the Respondent :
Mr. Vipin Singhania, Advocate for R-1
Mr. K.S.Rama Rao,Advocate for R-2
Nemo for R-3

Dated : 04 Mar 2014
ORDER

This revision petition is directed against the order of the State Commission dated 24.09.2012 whereby the State Commission concurred with the order passed by the District Forum and dismissed the appeal. 2. Briefly put facts relevant for the disposal of this revision petition are that the petitioner filed a consumer complaint before the District Forum-II at Visakhapatnam alleging that he purchased Skoda Octavia Ambience car from the OP no.3. It is the case of the complainant that after delivery of the vehicle, the petitioner noticed that a steering wheel of the car dragged towards the left side. He also noticed that reverse gear of the car was not functioning. The petitioner, therefore, visited the dealer, the OP no.3 on the very next day and asked him to rectify the defects. The vehicle was returned to the petitioner on 28.02.2010 stating that the defects were rectified. The complainant further noticed that the defects were still there and he again returned the vehicle to the OP no.3 for rectification of those defects but in vain. It is stated that on various occasions the car was sent to the service station of the OP no.3 for rectification of defects but the defects could not be rectified. The complainant issued legal notice to the OPs. Alleging the deficiency on the parties of the OPs, the complainant filed a consumer complaint before the District Forum. It may also be noted that during the process, the gear box of the car was replaced. 3. OPs resisted the claim by filing WS denying the allegation that the defects were not removed. It is claimed that there was no deficiency in service. The gear box was replaced and even the other defect was rectified. According to the opposite party, there is no manufacturing defect in the vehicle as such complaint is liable to be dismissed. 4. District Forum on consideration of pleadings as well as evidence produced on the record, came to the conclusion that neither there was any manufacturing defect nor any deficiency in service on the part of the opposite party and dismissed the complaint with the following observations: fter careful perusal of the case record, this Forum finds that the main contention of the Opposite Parties that the vehicle in question is free of defect, and is in continuous use of the Complainant, stands unchallenged. Ex.A22 is the vehicle gate pass which shows that the Complainant received the vehicle in question from the Opposite Parties on 25-03-2010 after proper repair. The note written by the Complainant thereon on the said Ex.A22 stating that he received the vehicle under protest though the vehicle was not good, left pulling was the same, and reverse gear also not satisfactory cannot be taken at its face value as no prudent person will take a vehicle out from a service center without its being repaired. Moreover, in the present case, it was very dangerous to take the said vehicle on to the road with the alleged defects. So, we cannot but hold that the vehicle was fairly road-worthy as on 25-03-2010. Moreover, Ex.B3 sheet shows that when on 25-03-2010 the vehicle in question passed out, its reading has shown only 568 kilometers. As such, the allegation of the Complainant, that the reading in the meter was 3200 kilometers, cannot be true. Moreover, the Complainant failed to present before this Forum any material to the effect that the said vehicle is lying ideal and is not in use at all. So, the contention of the Opposite Parties, that the vehicle in question, is in use since 25-03-2010, i.e., for more than one year, stands unchallenged. Hence, the question of replacing the car in question or paying any, the in the alternative doesn arise. Therefore, we hold that the claim put forward by the Complainant is untenable and the complaint itself is liable to be dismissed. 5. Being aggrieved by the order of the District Forum, the petitioner preferred an appeal. The appeal was dismissed by the State Commission Hyderabad vide the impugned order. Relevant observations of the State Commission are reproduced thus:- n order to prove that there are mechanical defects in the vehicle, the complainant filed Ex.A26 dt.29.3.2010, the observations and findings of his examination of the subject vehicle by Chandra Sekhar Rao, Engineer/Insurance Surveyor and loss assessor. Ex.A27 dt.9.4.2010, the observations and findings of R.V.S.Sharma, Surveyor and loss assessor said to have been attended on the subject vehicle, on 7.4.2010. The complainant filed affidavits of both A.Chandrasekhar Rao and R.V.S.Sharma surveyors and loss assessors, at the time of enquiry of the complaint. As per Ex.A26 , surveyor opined that in the event of failure to rectify the defects, the car cannot be used on the high ways and in the traffic with continuous left drag and advised to send back the car to the manufacturer and get replaced it. Mr.R.V.S.Sharma also opined the same thing under Ex.A27. Admittedly the above said two surveyors have not examined the vehicle in the presence of opposite parties,who are disputing both the opinions vide Ex.A26 and A27. The complainant ought to have got the vehicle examined by the above said two surveyors in the presence of staff of opposite parties 1 to 3. Except the reports, no supporting evidence has been filed along with the reports. Ex.A19 is the copy of the registered lawyers notice dt.11.3.2010 got issued by the complainant to the opposite parties and Ex.A21 is the reply notice dt. 22.3.2010 got issued by the opposite parties,wherein the opposite parties have categorically expressed their willingness for examination of the vehicle by an independent third party expert. Not withstanding the offer of the opposite parties, the complainant engaged surveyors of his own choice and filed their above reports dt.29.3.2010 and 9.4.2010. That apart, the surveyors in their reports have categorically stated that unless the vehicle is opened and examined, the alleged manufacturing defects cannot be confirmed. It is therefore obvious, both the surveyors have not opened the vehicle and examined it, also no tests were conducted. Any report,without a thorough technical examination,cannot be termed as expert opinion. The car of this nature requires examination by a qualified automobile engineer/expert only who can diagnose the vehicles through ehicle analytical systems(VAS), and other latest diagnosing/technical requirements etc. Insurance surveyor cannot give a report on the manufacturing defects; he is only loss assessor. Both the reports are almost of identical. The opposite parties have reiterated their willingness to have examination of the vehicle by a qualified third party expert, in the written version filed by them. In view of the above facts and circumstances , we are not inclined to accept Ex.A26 and A27 reports in proof of the facts that there are mechaniical defects in the subject vehicle. The specific case of the opp.parties is that they have replaced the gear box. Both the surveyors have nowhere in their above said reports, expressed any difficulty in respect of the gear box . But still the complainant complains about the gear box in the complaint filed on 25.8.2010. The opposite parties have filed Ex.B1, copy of technical analysis report dt.14.3.2010 issued by qualified technician Mr.Ramakrishna Surabhi from opposite party no.1, who examined the vehicle on 14.3.2010 at the work shop of opposite party no.3. As seen from Ex.B1, the technician had taken various tests of the vehicle and categorically stated that apart from other defects, the main defect like marginal deviation at left hand side as compared to right hand side have been rectified. As rightly observed by the District Forum basing on Ex.A22, the vehicle gate pass , no prudent man will take the vehicle from the work shop without the main defects being rectified and that by the date of Ex.B3, copy of the Gate Register issued by opposite party no.3 , the vehicle was road worthy as on 25.3.2010 and the meter reading has shown only 568 kms. The complainant has also failed to show that the vehicle was lying idle all through and it was not used at all. Under these circumstances, in our considered view, the complainant is not entitled to the replacement of the subject vehicle with new one. Further, in the complaint the complainant has categorically statedthe complainant herein is a reputed business man in Visakhapatnam and Engineering Contractor having diversified business activities in and around Visakhapatnam. As a reputed business person he wanted to purchase perfect and comfortable motor car for his daily use Admittedly the complainant is also a partner/owner of M/s. Swagath Road Lines. These admissions made by the complainant in the complaint establish that the subject vehicle is purchased for use associated with the business/commercial activities undertaken by him, as contended by the opposite party. Therefore, we are of view that the vehicle was purchased by the complainant for commercial purpose and any purchase for commercial use does not constitute onsumer dispute and the buyer of the vehicle is not a onsumerunder Section 2(i)(d) of the Consumer Protection Act. The complaint is therefore not maintainable under law. 6. Shri Suyodhan Byrapaneni, Advocate for the petitioner has contended that the impugned order of the State Commission is based on incorrect appreciation of facts. It is argued that the State Commission has failed to appreciate that the subject vehicle had been giving problem from the date of purchase and it remained with the OP for about 25 days for rectification of defects, which could not be rectified. It is further argued that State Commission has failed to appreciate that on 25.03.2010, the petitioner took the delivery of the subject vehicle from the service station under protest and that as per the certificates issued by the independent technical experts, there was a defect in the vehicle in as much as its steering had dragged towards the left and because of that defect, driving of vehicle on highway or in the traffic was unsafe. It is further contended that State Commission has committed a grave error in holding that the subject vehicle was purchased by the petitioner for business / commercial activity without there being any evidence to substantiate that finding. Learned counsel for the petitioner has thus urged us to allow the revision petition, set aside the impugned order and award proper relief to the petitioner. 7. Learned counsel for OP No.1 & 2 have argued on similar lines in support of the impugned order. They have contended that revision petition is liable to be dismissed solely on the ground that vehicle in question was purchased in relation to the commercial activity of the petitioner. As such, the petitioner is not covered under the definition of consumer as defined under section 2 (1) (d) of the Consumer Protection Act , 1986 (in short, he Act. It is further contended that both the foras below have returned a concurrent finding after due appreciation of the evidence and the National Commission in exercise of revisional jurisdiction as conferred under section 21 (b) of the Act has no powers to appreciate the facts. It is further contended that there is nothing on the record which may suggest any jurisdictional error on the part of the foras below or that the impugned orders suffer from material irregularity or illegality which may call for interference by this Commission. It is also argued that the reports of the technical experts relied upon by the petitioner are of no avail to the petitioner firstly because those reports have been prepared at the back of the respondents and also for the reason that aforesaid reports do not establish that there was any manufacturing defect in the car. Learned counsel for the opposite parties have drawn our attention to the technical inspection report of Ramakrishna Surabhi according to which, the vehicle in question was roadworthy and no defect was found thereunder. Opposite parties have thus pressed for dismissal of revision petition. 8. We have considered the rival contentions and perused the record. The case of the petitioner as projected in the complaint is that after taking delivery of the car, the complainant noticed that the gear box of the car was defective as it was not engaging the reverse gear and also that there was a drag towards the left on the steering of the car. Admittedly, the gear box have been replaced by the opposite parties and now there is no deficiency in the functioning of the gear box. This fact is also substantiated by the certificates given by the technical experts A.Chandrasekhra Rao and R.V.S.Sharma, who in their opinion has pointed out only one defect i.e. the drag on the steering of car towards the left. 9. Thus, only dispute which requires consideration of this Commission is whether or not the above noted defect regarding drag towards the left was set right by the opposite party service station. In this regard, we have got three expert reports. The complainant has relied upon the reports of A.Chandrasekhra Rao and R.V.S.Sharma whereas the opposite parties are relying upon the technical report of the manufacturer, namely, Ramakrishna Surabhi. According to the reports relied upon by the complainant, a drag towards the left was found on the steering of the car whereas according to the technical report of Ramakrishna Surabhi, there was no defect in the functioning of the car. Learned State Commission vide a reasoned order reproduced above has declined to accept the inspection reports relied upon by the complainant and returned a concurrent finding of dismissal of complaint. We have no reason to interfere with the aforesaid finding. It may be noted that National Commission while sitting in revisional jurisdiction under section 21 (b) of the Act have limited jurisdiction and it has no power to reappreciate the facts unless it is pointed out that findings of the foras below is perverse or suffers from material irregularity. Counsel for the complainant has failed to point out any perversity or material irregularity or jurisdictional error in the orders of the foras below. Therefore, we find no reason to interfere with the impugned order, which is based upon rational analysis of the evidence. 10. Coming to the other aspect of the matter. In order to maintain a consumer complaint under the Act, the petitioner has to establish that he is a consumer. The term onsumeris defined under section 2 (1) (d) (i) of the Act as under: "consumer" means any person who (i) buys any goods 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 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 goods for resale or for any commercial purpose. 11. On reading of the above it is clear that if the subject goods are purchased for resale or for any commercial purpose, the purchaser of such goods is excluded from the definition of consumer. In order to find answer to this question, we directed the petitioner to file an affidavit indicating whether or not he took benefit of the depreciated value of the car in his Income Tax Returns. The complainant petitioner in para 5 of his affidavit dated 06.03.2013 has confirmed that he did take benefit of the depreciation of the value of the car for the purpose of his income tax liability for the assessment years 2010-2011, 2011-2012 and 2012-2013. From this it is evident that petitioner purchased the car for commercial purpose and that is why he took benefit of depreciation in value for the purpose of Income Tax. Since the car was purchased in relation to business of the petitioner i.e. commercial purpose, in our considered view, the petitioner do not fall within the definition of term onsumernoted above. Therefore also, he cannot maintain the consumer complaint under the Consumer Protection Act, 1986. Therefore, in our view, the finding of the State Commission in this regard cannot be faulted. 12. In view of the discussion above, we do not find any jurisdictional error, material irregularity or illegality in the impugned order which may call for interference by this Commission. Revision petition is therefore dismissed. No order as to costs.

 
......................J
AJIT BHARIHOKE
PRESIDING MEMBER
......................
SURESH CHANDRA
MEMBER

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