Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this petition u/s.12 of the C.P. Act 1986 for getting reliefs from the opposite parties.

                   2. The case of the complainant is as follows:  The complainant is the registered owner of a Tata Mini Tipper Lorry bearing Reg.No.KL-26/D-3882.  On 16.05.2014, while unloading the goods from the said lorry it happened to turn down and caused damages for this vehicle.  The damages are caused to the chassis, front glass etc. etc.  On the same day, the complainant entrusted the vehicle to 1^st opposite party’s workshop for repairment.  According to him, due to the purposeful negligence of 1^st opposite party the repair work did not complete even within 13 months and after that period the vehicle handed over to the complainant.  He again stated that he purchased the above said vehicle after availing a loan from Cholamandalam investment and Finance Company Ltd. and the complainant repaying the loan amount from the earning of this vehicle.  He further stated that in order to repair the said vehicle there is an amount of Rs.2,10,000/- was spent and out of it Rs.1,60,000/- was reimbursed by the insurance company.  An amount of Rs.50,000/- was paid by the complainant for its repairment as an advance to 1^st opposite party.  He contended that per month there was an income of Rs.75,000/- was from the vehicle and due to the laches on the part of the opposite party, which caused losses and damages to the complainant.  He further contended that all the act of the opposite parties are grave deficiency in service of the opposite parties and it also caused a huge monitory loss to the complainant.  Hence, the opposite parties are liable for all these losses.  Therefore, the complainant filed this petition before this Forum for getting compensation etc. etc. from the opposite parties.

                   3. This Forum entertained this complaint and issue notice to opposite parties.  Both the opposite parties are entered appearance and filed their version.  The version of the opposite parties are as follows:  According to the opposite parties the complaint is not maintainable either in law or on fact.  The opposite parties contended that the complainant in this case is not a consumer as defined under Sec.2(d) of C.P. Act and also contended that the case is defective by non-joinder of necessary parties.  According to them, the insurance company is a necessary party for this proceeding.  It is contended that on 16.05.2014 the vehicle was entrusted them for repairing and found that the damages caused to the chassis was unrepairable and recommended for replacement of the said spare parts.  It is stated that the surveyor of the insurance company and the complainant insisted for the repairing of the vehicle and moreover the complainant was not ready to pay any amount as advance for the purchase of any spare parts for the vehicle.  Even though, the opposite party repaired the chassis due to the instigation of the surveyor and the complainant, the sharp bent caused to the chassis resulted from the accident was not fully rectified.  This fact is revealed to the surveyor and at last he was also amenable for the replacement of the spare parts as stated earlier.  According to the opposite parties, in order to place an order for new chassis the complainant has to pay an advance for the same.  But the complainant was not in a position to pay the advance as directed by this opposite parties and at last on 20.08.2014 he paid the advance amount and on receipt of the chassis, necessary repair works were done to the vehicle.  When the complainant insisted for painting work, the opposite parties also done that work.  The complainant refused to pay the painting charge and he insists the opposite parties to include this expense in the main maintenance work.  It is further stated that only on 31.01.2015 the complainant cleared all the dues and received the vehicle from the workshop.  According to this opposite parties, the complainant did not sustained any loss or damages due to the entrustment of the vehicle with the opposite party.  It is contented that complainant purchased this vehicle for flourishing his business.  Hence the complainant is not a consumer as defined in C.P. Act. 

                   4. According to this opposite parties, the complainant purposefully delayed the payment of advance to the opposite parties and it caused delay in the rectification work of the vehicle.  Anyway, the opposite parties are not committed any deficiency in service against the complainant as alleged by the complaint.  The allegation against the opposite parties are made with ulterior motives to tarnish the image of this opposite parties, which is one of the most repudiated dealer of the commercial vehicles manufactured by M/s. Tata Motors Ltd.  Therefore, the opposite parties prayed to dismiss the complaint with paying compensatory cost.

                   5. This Forum peruse the complaint, version and other records before us and framed the following issues for consideration:

                   (1)  Whether the case is maintainable before the Forum?

                   (2)  Whether the opposite parties have committed any deficiency 

                         in service against the complainant?

                   (3)  Regarding cost and relief?

                   6. In order to prove the case of the complainant, the complainant himself examined as PW1 and marked Exts.A1 to A9.  Ext.A9 is marked at the time of cross-examining DW1.  Ext.A1 is the photocopy of tax licence issued by Motor Vehicles Department to the complainant.  Ext.A2 is the photocopy of bank pass book.  Ext.A3 is the photocopy of payment receipts.  Ext.A4 is the photocopy of receipt dated 29.04.2015 for Rs.4,400/- issued by Kerala Motor Transport Workers Welfare Fund Board to the complainant.  Ext.A5 is the copy of cash receipt 2014-15 voucher dated 20.08.2014 for Rs.50,000/- issued by 1^st opposite party to the complainant.  Ext.A6 is the tax invoice dated 31.01.2015 issued by 2^nd opposite party.  Ext.A7 is the photocopy of Motor Insurance Certificate cum-policy schedule.  Ext.A8 is the photocopy of driving licence of the complainant.  Ext.A9 is the photocopy of estimate for repair and replacement of parts.  On the other hand, in order to substantiate the case of the opposite party they filed a proof affidavit in lieu of chief examination and DW1 was examined.  Through DW1, Exts.B1 to B5 were also marked.  Ext.B1 is the authorisation letter.  Ext.B2 is the copy of estimate for repair and replacement of parts.  Ext.B3 is the copy of Tax invoice.  Ext.B4 is the e.mail dated 20.04.2015.  Ext.B5 is the bank statement.    

                   7. When we peruse the chief examination of PW1, we can see that the accident took place on 16.05.2014 and on the same day complainant entrusted the vehicle for necessary repairment.  It is deposed that only after 13 months the 1^st opposite party return the vehicle for his daily use.  He categorically deposed that he used this vehicle to earn his daily bread.  According to him, as a result of this inordinate delay he suffered a lot for the repayment of the loan amount of the vehicle.  He also admitted that there is an amount of Rs. 2,10,000/- was spent for its repairment, out of it Rs.1,60,000/- was reimbursed from the insurance company.  Above all he paid an amount of Rs.50,000/- as advance for the beginning of the maintenance work.  On the other hand, DW1 filed proof affidavit in lieu of chief examination for and on behalf of 1^st and 2^nd opposite parties.  When we examine proof affidavit of DW1 we can see that the proof affidavit is more or less as per the contention of version of opposite parties 1 and 2.  DW1 deposed that the complainant herein not at all a consumer as per C.P. Act and this case is defective for non-joinder of necessary parties.  On 19.05.2014, the 1^st opposite party filed an estimate of replacement of certain spare parts instead of repairment.  But the insurance company not accepted this proposal and they insisted for the repair of the vehicle.  It is deposed that 1^st opposite party was forced to accept the compulsion of the insurance company and the complainant so that 1^st opposite party repaired the vehicle instead of a replacement.  DW1’s testimony shows that even though the vehicle is repaired the sharp bent of the chassis could not be rectified.  At last, the complainant as well as the surveyor allowed a replacement and only on 20.08.2014 the complainant paid the advance money for placing the replacement order.  According to him, after 2 weeks from 20.08.2014 the work for the replacement of the chassis was done but the complainant insisted for painting hence that work also done by 1^st opposite party.  He again deposed that even though the maintenance work was over on October 2014 either the complainant or the insurance company was not ready to settle the bill.  At last on 31.01.2015, the surveyor of the insurance company finalised the bill after making huge adjustment from the opposite parties for the additional work done.  The PW1 in this case is cross-examined by the counsel appearing for 1^st and 2^nd opposite parties and the DW1 is cross-examined by the complainant himself.  After closure of evidence, we heard both sides.

                   8. Point No.1:- The opposite party in this case clearly taken a stand to the effect that the case is not maintainable before this Forum and the complainant is not a consumer as per Sec.2(i)(d) of C.P. Act.  The Sec.2(i)(d) says, “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”.  The definition clause of ‘consumer’ is so clear if a person is obtaining such goods for any commercial purposes that goods are not comes under Sec.2(i)(d).  As far as this case is concerned the complainant purchased this Tata Mini Tipper Lorry KL/D-3882 for the purpose of earning his livelihood, by means of self employment.  The complainant in his complaint and in his chief affidavit it is categorically stated or deposed that the subject matter of this disputed tipper lorry is used for his livelihood and this is the only employment of the complainant.  When complainant is examined as PW1 in cross-examination he answered like this, “ഈ വാഹനം കൊണ്ട് എത്ര രൂപായുടെ ലാഭം ഉണ്ടാക്കുന്നുണ്ട് നിങ്ങള്? പ്രതിവർഷം എനിക്ക് സർവ്വ ചെലവും കഴിഞ്ഞ് 2,50,000/ രൂപാ ലാഭം കിട്ടുന്നുണ്ട് ”.  It is to be noted that at the time of cross-examination, the opposite party has no definite case to the effect that PW1 is not a ‘consumer’ as alleged in the version or in their argument note.  Moreover, it is clear that 1^st opposite party is the authorised workshop of this Tata Mini Tipper Lorry and it is also admitted that PW1 entrusted this vehicle with the opposite party for rectifying the damage caused to the vehicle.  These evidence are sufficient to come to a conclusion that the complainant is a consumer as definite in Sec.2(i)(d) of C.P. Act and we find that the complaint is maintainable before this Forum.  Hence Point No.1 found accordingly.

                   9. Point Nos. 2 & 3:-  For the sake of convenience, we would like to appreciate the evidence of Point No.2 and 3 together.  When we appreciate the whole evidence adduced by both parties in this case the main question to be considered is whether the opposite parties 1 and 2 have committed any deficiency in service as alleged by the complainant.  In order to substantiate the case of the complainant, apart from his proof affidavit he marked Exts.A1 to A9.  Out of this, Exts.A1 to A4 are documents related to vehicle department, banks such as South Indian Bank and payment details of ‘Chola’ etc.  These exhibits are not so important to consider the dispute in this case.  All these exhibits are helped to prove the ownership of the vehicle and existing financial liability of the vehicle.

                   10. The learned counsel for the opposite parties in this case argued that though the tipper lorry is entrusted for repair work, it is the duty of the insurance company to deliver instruction for repair to the authorised workshop.  We don’t think that such a contention is tenable because usually a person entrusted his vehicle for maintenance or repairing work the authorised workshop persons intimate this matter to the insurance company concerned and they prepare an estimate with the help of a technical expert. The opposite parties adduced any evidence to show that they have intimated the insurance company for the preparation of the estimate of the work at the time of entrustment of the vehicle.  It is clear that the vehicle is entrusted opposite parties on 16.05.2014 for repairing work. It is evident to see that only on 19.05.2014 as per Ext.A9 the opposite parties prepared an estimate and forwarded to the Manager, United India Insurance Company.   No doubt, the delay in preparation of a proper estimate and its intimation to the insurance concerned is highly inevitable but the opposite parties miserably failed to act accordingly.  The opposite parties argued that due to the instigation of the complainant and surveyor of the United India Insurance Co., opposite parties forced to repair the vehicle and handed over to the complainant on June 2014.  At the same time, opposite parties are admitted that even though the vehicle is repaired the bent of the chassis was present even after the repairing work.  If the opposite party had got a specific technical advice for the replacement of the chassis, as a responsible workshop person they would not maintain the vehicle and handed over to the complainant as stated above.  According to opposite parties, on 28.08.2015 the complainant paid the advance amount of Rs.50,000/- for replacement work so that the delay was caused and it can be proved by Ext.A5.  It is also argued that on October 2014 the replacement work had been completed and due to the dispute with regard to the finalisation of the bill the delivery of the vehicle was delayed.  It is come out in evidence that after repair the vehicle handed over to the complainant on June 2014 and subsequently he understood that the work was not satisfactory.  Hence he again entrusted the vehicle to 1^st opposite party for rectification of the defect at the time the United India Insurance Company and the complainant both are agreed for a replacement.  Considering this fact the advance payment dated 20.08.2015 was not at all a delayed payment.  Even though, the opposite party argued that the vehicle was ready for delivery on October 2014, the opposite party failed to adduce any evidence to substantiate this fact.  It is evident to see that as per Ext.A6 on 31.01.2015 the opposite parties are prepared the bill of the vehicle.  There is no evidence to show that the opposite parties informed either the complainant or the United India Insurance Company with regard to the final bill on or before the Ext.A6 date 31.01.2015.  If so, the case of the opposite parties with regard to the completion of the work of the vehicle on October 2014 was also not believable.  It is true that opposite party has a definite contention to the effect that the delay was caused due to the non settlement of the bill and for the settlement the opposite parties sustained a loss of Rs.20,000/- also.  In order to substantiate this contention, the opposite parties have not produced any evidence.  Hence this plea also has to be discarded.  As per Ext.A7, it is proved that at present the vehicle is having an insurance policy with Oriental Insurance Co. Ltd. w.e.f. 29.05.2015 to 28.05.2016.  Ext.A8 is the certificate of registration issued by R.T.O., Adoor in favour of the complainant.  As per this Ext.A8, it is to see that the opposite parties are authorised dealer of this vehicle. 

                   11. The opposite parties raised another contention to the effect that this complaint is liable to be dismissed for non-joinder of necessary parties.  It is argued that the insurance company concerned is a necessary party for the proceedings of this case but the complainant did not make the insurance company as a party here.  When we appreciate the relief portion of the complaint, it reveals that the complainant seek relief only against opposite parties and their deficiency in service.  In this complaint PW1 specifically stated that he has no complaint against the insurance company of the vehicle related to the incident.  The plea put forward by the complainant is sustainable.  Hence the plea of dismissal of complaint by non-joinder of necessary parties are hereby discarded.

                   12. When we appreciate the whole plea of the complainant, it reveals that he demanded a huge compensation for the delay of 13 months caused to the repairment of the vehicle.  But so far as the evidence adduced by the complainant is considered, it is to consider that the complainant and the United India Insurance Company was committed certain latches at the beginning of the maintenance work during the month of January, 2014.  But at the same time, the delay caused after the payment of the advance amount dated 20.08.2014 was not the defect of the complainant.  As we discussed earlier, the opposite parties have not adduced any sufficient explanation regarding the delay caused from 20.08.2014 to December 2015.  But at the same time, the opposite parties are liable to answer for defective maintenance conducted against the technical advice of replacement as discussed earlier.  When we appreciate the whole evidence, we find that the complaint is allowable to a limited extent.  Hence Point Nos.2 and 3 found accordingly.

                   13. In the result, we pass the following orders:

1. The opposite parties are hereby directed to pay a compensation to the complainant for an amount of Rs.25,000/- (Rupees Twenty Five Thousand only) with an interest of 10% from the date of this petition (22.07.2015) onwards.

2. The opposite parties are also directed to pay a cost of Rs.3,000/- (Rupees Three Thousand only) to the complainant with 10% interest from the date of order onwards.

          Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 29^th day of April, 2016.

                                                                                  (Sd/-)

                                                        P. Satheesh Chandran Nair,

                                                                  (President)

Smt. K.P. Padmasree (Member – I)     :        (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  John Chacko

Exhibits marked on the side of the complainant:

A1 :  Photocopy of tax licence issued by Motor Vehicles Department

        to the complainant. 

A2 :  Photocopy of bank pass book. 

A3 :  Photocopy of payment receipts. 

A4 :  Photocopy of receipt dated 29.04.2015 for Rs.4,400/- issued by Kerala Motor Transport Workers Welfare Fund Board to the complainant. 

A5 :  Copy of cash receipt 2014-15 voucher dated 20.08.2014 for Rs.50,000/-  

        issued by 1^st opposite party to the complainant. 

A6 :  Tax invoice dated 31.01.2015 issued by 2^nd opposite party. 

A7 :  Photocopy of Motor Insurance Certificate cum-policy schedule. 

A8 :  Photocopy of driving licence of the complainant. 

A9 :  Photocopy of estimate for repair and replacement of parts.

Witness examined on the side of the opposite parties:

DW1  :  Sankar. S

Exhibits marked on the side of the opposite parties:

B1 :  Authorisation letter. 

B2 :  Copy of estimate for repair and replacement of parts. 

B3 :  Copy of Tax invoice. 

B4 :  E.mail dated 20.04.2015. 

B5 :  Bank statement.   

                                                                                            (By Order)

Copy to:- (1) John Chacko, Ebenezer House, Parakkoottom.P.O.,

                    Manjakkala (Via), Mundappally – 691 551.                                           (2)  Manager, Service, Popular Mega Motors (I) Ltd.,

           Kumpazha-Konni Road, Thengumkavu. P.O.,

           Pathanamthitta.

     (3)  Manager, Popular Mega Motors (I) Ltd.,

           Trinity Towers, Chattangettu Road,

           Palarivattom, Kochi.

     (4)  The Stock File.