STATE CONSUMER DISPUTEs REDRESSAL COMMISSION
BIHAR, PATNA
Appeal No.172 of 2018
(Arising out of complaint case no.111/2012)
Bijay Kumar Choudhary,
S/O- Triveni Choudhary,
Resident of Village- Pataily
Police Station- Ujiarpur,
District- Samastipur. Appellant.
Versus
- Proprietor,
Ideal Dealers Pvt. Ltd.,
N.H.-28, Bhagwanpur Chowk,
Muzaffarpur.
2. Area Service Manager,
Tata Motors Ltd. Area Service Office-109,
Adhar Sheela Complex, 3rd Floor,
South Gandhi Maidain, Patna- 800001. Respondents.
Learned Counsel for the Appellant:- Mr. Pramod Kumar,Advocate
Learned Counsel for the Respondents:- Mr.Ritesh Kumar,Advocate
Before,
Miss. Gita Verma, Judicial Member
Mr. Raj Kumar Pandey, Member
ORDER
Per:Raj Kumar Pandey (Member)
Dated-23.08.2023
- This appeal has been filed by the appellant against the order dated 27.04.2018 passed by the learned District Consumer Disputes Redressal Forum (Commission), Samastipur (herein after referred as to learned District Commission) in complaint case no.111 of 2012, by which the complaint case filed by the complainant (appellant) was dismissed stating therein that the complainant was not a consumer, hence the complaint was not maintainable.
2. The case of the complainant in short is that the complainant Vijay Kumar Chaudhary filed a consumer complaint no.111 of 2012 before the learned District Commission against the respondents/opposite parties alleging manufacturing / inherent defects in the Tata ACE Goods Carrier Pik up (four wheeler Vehicle) purchased by him from the opposite party/respondent no.1 who was the dealer of M/S Tata Motor Ltd., and indicating the said defects he prayed before the learned District Commission that order would be passed against the opposite parities for immediate payment of compensation of Rs.4,84,000/- including loss of price of the Vehicle along with Rs.25,000/- for mental agony and Rs.10,000/- as litigation cost. It is the further case of the complainant that he purchased the said vehicle from the Opposite party no.1 paying Rs.3,95,070/- and the said vehicle was delivered to him on 08.12.2011 at Muzaffarpur. The vehicle bears engine no.475 IDT 18 KYYSK 6880 and Chasis No. MAT 483134 BYK11259 and Registration No. BR06GA 2344. The further case of the complainant is that the said vehicle was purchased to meet his livelihood and after purchasing, within a short spun of time the defects were occurred in the said vehicle for which he informed the opposite party no.1 on 21.02.2012 thereafter the defect were repaired on payment of Rs.2,311/- but just after one month, vehicle again got defective which was repaired by opposite party no.1 on dated 29.03.2012 after payment of Rs.2,333/- but time and again the said vehicle became defective, hence the said vehicle had been remaining with opposite party no.1 from 19.05.2012 to 29.05.2012 for repairing and whenever the vehicle got repair the complainant paid Rs.1,115/-again. Thereafter from 06.08.2012 to 06.12.2012 the said vehicle was again repaired after payment of Rs.8,206/- and Rs.2,0016/- consecutively. It has been further stated that all repairing done by Opposite- party no.1 under warranty period, for which no payment was required but due to pressure of the Opposite party no.1 the complainant compelled to pay him. However, the defects could not be removed from the vehicle, hence the vehicle was lying idle at the door of the complainant. It has been further stated that the severe deficiency in service was committed by the opposite parties, hence a legal notice was served upon them but there was no response. As complainant had no option so he filed a consumer complaint before the learned District Commission.
3. After notice Opposite- parties were appeared before the learned District Commission and filed their written statement stating therein that the complaint case was not maintainable as complainant was not a consumer as per the provision of the Consumer Protection Act 1986. The question of jurisdictional error was also raised by the opposite parties and they denied any manufacturing defects in vehicle in question. It has been further stated that the Opposite party no.1 carried the repairing works of vehicle on different dates and charged only for those materials which was not covered under the warranty conditions. The allegation of the complainant regarding lying of the vehicle at his door cannot be believed because there was no expert report was drawn by the complainant regarding the manufacturing defects in the vehicle so it cannot be sustainable without a documentary evidence. It has been further stated that the vehicle in question had been extensively used by the complainant for commercial activities and as such it was prayed for to dismiss the complaint petition.
4. After hearing both the parties as well as materials available on record and also case laws filed by the parties, the learned District Commission dismissed the consumer complaint on the basis of jurisdictional error as well as evidence placed regarding commercial use of the vehicle.
5. Both the parties have filed written notes of argument in support of their respective case.
6. The learned counsel for the appellant has stated that the impugned order was passed without application of judicial mind and without appreciation of documents filed by the complainant along with complaint petition. It has been further stated that the learned District Commission has not considered the terms and condition of the warranty which was violated by the opposite parties and illegal charges were imposed upon the complainant which compelled the complainant to pay the same.
7. In written notes of arguments, which have been filed by the Respondent no.1 &2 separately, it has been stated that the appellant/ complainant was not a consumer as per the provision of the Consumer Protection Act 1986. Respondent no.1 has relied upon, under mentioned citations of the Hon’ble Supreme Court of India as well as Hon’ble N.C.D.R.C, New Delhi.
AS:-
- Rashpal Singh Bahia & others vs. Surinder Kaur and others 2008(2) civil Forum Cases 778 (P&H).
- Punjab Water Supply & Sewage Board vs Udaipur Cement works [1986 -1996 Consumer 2838 (NS)]
- Bharti Knitting company Vs. DHL Worldwide Express Courier (1996) 4 SCC 704.
- Laxmi Engineering Works Vs PSG Industries Institute (1995 II CPJ I (SC)
- II (2012) CPJ 350 (NC)–Gurubaksh Logistic India Vs Action Construction Equipment Limited & Anr.
- Lt. Col. S K Bhatia Vs Punjab Financial Corpn, II (2001) CPJ 40 (NC).
- State Bank of India Vs. B.S. Agricultural Industries II (2009) CPJ 29 (SC)
- Shakti Engineering Works and Another Vs. Sri Krishna Coir Rope Industry reported in III (2000) CPC 13 (NC).
On the other hand, in its written notes of argument Respondent no.2 denying all the allegations of the complainant. It has been stated that the vehicle in question was purchased for the commercial purpose and in support of their contention respondent no.2 has referred under mentioned citations:-
- Laxmi Engineering Works Vs. PSG Industries Institute (1995 II CPJ I (SC)
- Cheema engineering Services V/s Rajan Singh (1997) 1 SCC 131.
8. In our view each case has been decided as per its own merit and provisions of law concerned.
9. We have perused the material available on record as well as impugned order under challenged and we find that in his complaint petition the complainant/appellant stated that he purchased the vehicle in question for his livelihood and it has been further stated that the opposite parties were deficient regarding provide proper service to the complainant, hence the opposite parties were liable for gross deficiency in service.
10. On the other hand, in their written notes of argument the respondents apart from other contention regarding jurisdictional point as well as terms of warranty have mainly emphasized that the complainant was not a consumer under the provision of Consumer Protection Act 1986.
11. Here the decision of the Hon’ble Apex Court is relevant in this context:-
“In Sunil Kohli and Anr. V/s M/S Purearth Infrastructure Ltd. MANU/SCOR/01702/2019 the Hon’ble Supreme Court observed that “ any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purpose of goods is not a commercial purpose. Its includes the members of his family”.
“In Laxmi Engineering works V/s P.S.G Industrial Institute, (1995) 3 SCC 583 (as also referred by respondent no.1) and, Cheema Engineering services v/s Rajan Singh (1997) 1 SCC 131, the bench observed “ in certain situations, purchases of goods for “ commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’.
12. So, only on the basis that the complainant had used words As- “purchased vehicle for his commercial purpose” does not exclude him from the ambit of consumer as defined in Section 2(1)d(i)of the Act, 1986.” The further contention of the Respondent / Opposite parties is regarding warranty norms. Usually, warranty period is 12 months and the complainant was approached before the opposite party no.1 between 08.12.2011 (the date of delivery) to 06.12.2012 i.e. within 12 months. The Respondent / Opposite party no. 1 stated that he only received as labour charge is not tenable. So far as regards the expert opinion for ascertaining manufacturing defect is not correct because the provision of section 13 (1) (C) of the C.P. Act 1986 is not mandatory. If the defects determined apparently there is no need expert opinion.
13. F We accordingly direct the Respondent / Opposite parties to either provide a new vehicle instead of old vehicle lying at the door of the appellant or to pay the price of the vehicle in question with interest @ 6% and also registration fee as well as Insurance Premium of vehicle within 3 months from the receipt of this order. We further direct that the respondent no.1 to pay Rs.25,000/- inclusive as repairing charge compensation and litigation cost to the appellant/complainant within the said period failing which the whole amount will carry an interest @8% p.a. till its payment.
14. Appeal is allowed.
15. A copy of this order be supplied to both the parties free of cost as mandated by the C.P. Act 2019.Order be uploaded forthwith on the confonent of the State Commission.
16. Let the file be consigned in the record room along with copy of this order.
(Raj Kumar Pandey) (Gita Verma)
Member (M) Judicial Member(F)
Anita
