This complaint petition has been filed by complainant Pramod Kumar Choudhary, against Proprietor of Tata Motors Ltd. Bhagawanpur Muzaffarpur (o.p) for realization of AMC fee second time realized by o.p., Rs.15,000/- as compensation and Rs. 5000/- as litigation cost.
The case of the complainant, in brief, is that complainant is educated unemployed person and for his livelihood he had purchased Tata C.L.B. type Pickup Van Model-2007 bearing registration no.- BR-06N-5890 from the o.p in December 2007. After purchasing of the vehicle o.p had taken Rs. 13,500/- in two drafts from complainant for the maintenance charge (service) of the vehicle for the period of one year i.e since 24-03-2008 to 23-03-2009. The further case is that on 18-12-2008 when the complainant produced his vehicle before o.p for maintenance, the MC incharge of the o.p asked the complainant that his date of service. Has been expired he also asked for charge for the service. The complainant requested that his MC is since, 23-03-2009 but the representative of the o.p realized Rs. 705/- from the complainant for maintenance and detained vehicle for 7 hours, so the complainant was compelled to leave Rs. 15,000/- as hire to Saharsa the further case is that the o.p has deficiency in service because his MC date was valid since 23-03-2009.
The following documents have been filed and annexed with the complaint petition by the complainant annexure-1, Photocopy of MC card valid since 24-03-2008 to 23-03-2009, annexure-2, Two photocopies of demand drafts each is for Rs. 6750/- in the name of Tata Motors Ltd., Annexure-3- photocopy of retail invoice for Rs. 580/- dated 18-12-2008 annexure-4- photocopy of retail invoice for Rs. 1,25/- dated 18-12-2008, annexure-5- photocopy of RC of vehicle No. BR06-N5890 in the name of Pramd Kumar Choudhary.
O.P appeared on 30-05-2009 and filed his w.s. on 27-06-2009 praying therein to dismiss the complaint petition with heavy exemplary costs. It has been stated in the w.s. that the complaint petition is not maintainable in the eye of law and there is no deficiency in service on the part of o.p. It has been further stated that an agreement extended between Tata Motors Ltd., and the complainant on dated 24-03-2008 for annual maintenance of the vehicle in question for a period of one year i.e 24-03-2008 to 23-03-2009. It is an admitted fact. It has been further stated that as per terms of the agreement, the Tata Motors Ltd., has right to terminate agreement at any time without any notice if vehicle is misused and it is further stipulated in the agreement that AMC will be terminated by the company after giving prior notice of 15 days. The copy of the agreement has been annexed as annexure –1 (for easy reference it is marked as Annexure –A). The further case of the o.p is that a notice was given on 31-10-2008 to the complainant, 15 days prior to termination and after 15 days i.e on 14-11-2018 the said agreement was terminated. It has been further stated that after termination of the said agreement the o.p refunded cheque bearing No.- 801978 dated 04-03-2009 for Rs. 3,375/- issued by H.D.F.C Bank, Pune on 24-03-2009 as Pro-rata basis to the complainant and the same was received by the complainant. Copy of cheque and acknowledgement has been annexed as annexure -2/2A (easy reference it will be read as annexure-B & B/a. It has been further stated that after termination of AMC agreement the o.p is legally entitled to charge the cost of the repairing and parts of the vehicle which was replaced at the time of repairing and the same has been done by the authorized service centre of the o.p as per terms of the company. It has been further stated that the complainant after revocation of the agreement due to malafide intention produced the vehicle in the authorized workshop of the company and repaired the vehicle illegally and thereafter , demanded the refund and compensation which is not permissible under the law. It has been further stated that the agreement was revoked by the o.p on 31-10-2008 and the complainant repaired the vehicle malafidely on 18-12-2008 after termination of agreement in order to gain undue advantage. The copy of retail invoice has been annexed as annexure- 3 & 4 ( which will be read as annexure C and C/A for easy reference). It has been further stated that as per terms of AMC agreement only the court of Mumbai has exclusive jurisdiction to entertain and adjudicate the matter, cheque hence this forum has no pecuniary jurisdiction to entertain this complaint petition.
The learned Lawyer for both the parties have already been heard.
The learned lawyer for the o.p has filed a notes of argument and has submitted that the vehicle in question is a commercial vehicle and the complainant doesn’t come under purview of ‘ Consumer’ within the meaning section 2 (1) (d) of the Consumer Protection Act 1986.
The o.p has raised this question first time so it is necessary to mention section 2 (1) d of Consumer protection Act 1986 here which is as follows.
(d) “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; or
(ii) [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 10[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 11[ but does not include a person who avails of such services for any commercial purpose].
12[Explanation.- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]
The complainant has asserted in the complaint petition that he is educated unemployed person and he has purchased the pickup Van for his livelihood. The above Act of the complainant bring his Act under explanation of section 2 (1) (d) of the consumer protection Act 1986 and it is crystal clear from the complaint petition itself that complainant bought the Tata pick Van himself exclusively for purposes of earning by means of self employment. No other evidence has been produced/adduced by the o.p to counter the above fact. In the above circumstances argument advanced on behalf of o.p has no support and accordingly the same is rejected.
It is an admitted fact that an agreement took place between the parties for maintenance of the Tata pick Van BR06-N5890 for one year that is since 24-03-2008 to 23-03-2009. It is also an admitted fact that the complainant produced the vehicle before o.p for maintenance on 18-12-2008 for which the o.p charged additional repairing charge Rs. 705/-. O.p has stated in his w.s and in his written argument that the o.p had terminated AMC agreement by giving prior notice of 15 days to the complainant. O.P has not produced the copy of the notice and order of termination of agreement before this forum to support his version. The o.p has only filed photocopy of cheque of Rs. 3,375/- with acknowledgement as annexure B & B/A. It only shows that the cheque was issued in the name of Pramod Kr. Choudhary but it doesn’t show that the same cheque was issued in support on termination of agreement and the same was received by complainant. So, the agreement advanced on behalf of o.p has no support and accordingly the same is not beliebly.
The learned lawyer for the o.p has also argued that this forum has got no territorial jurisdiction to entertain the complaint petition as the agreement had taken place in Mumbai and no cause of action arose at Muzaffarpur.
Section 11 of Consumer Protection Act 1986 deals with the jurisdiction of the District Forum which is as follows.-
- Subject to the other provisions of the Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed where the value of the goods or services and the compensation, if any, claimed 37[38[does not exceed rupees twenty lakhs.]]
- A complainant shall be instituted in a District Forum within the local limits of whose jurisdiction,-
- The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and more than one, at the time of the institution of the complaint, actually and voluntarily resides or 39[carries on business or has a branch office or] personally works for gain, or
- Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or 39[carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 40[carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or
- The cause of action, wholly or in part, arises.
The o.p has admitted in his written argument that the o.p is dealer of the Tata motors Ltd. The o.p works for gains at Muzaffarpur and carries on business on behalf of Tata Motors, so this forum has got jurisdiction as per section 11 (2) (a) of the Act to maintain and try the complaint case.
From the above discussion we are of the opinion that the o.p has refused to repair the vehicle in question that is pick van during AMC agreement period and as such there is deficiency on the part of o.p so he is liable for compensation and litigation cost.
Accordingly, this complaint case is allowed with direction to o.p to refund the MC charge Rs. 750/- realized second time from the complainant. He is further directed to pay Rs. 10,000/- as compensation and litigation cost to the complainant within a period of 2 months, from the date of order on failure to pay the same he shall be liable to pay the compensation amount with 8 % Interest from the date of order till realization of the same.
