BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.343 of 2013

Date of Instt. 26.8.2013

Date of Decision :30.12.2014.

Munish Shingari Prop.Shingari Paper Products, 77-Shiv Nagar, Sodal Road, Jalandhar.

..........Complainant

Versus

1. Renault India Pvt Ltd(RIPL), Head Office:ASV Ramana Towers, 37-38, 4th Floor, Venkatanarayana Road, T.Nagar, Chennai-600017 through its authorized representative.

2. Padam Cars Pvt Ltd, Gurshish Building, Amritsar Road, Opposite Indian Oil Corpn,Depot, Jalandhar through its authorized representative.

3. Rakesh Kashap, Manager, Padam Cars Pvt Ltd, Gurshish Building, Amritsar Road, Opposite Indian Oil Corpn,Depot, Jalandhar.

4. Badal Pal Sale Executive, Padam Cars Pvt Ltd, Gurshish Building, Amritsar Road, Opposite Indian Oil Corpn,Depot, Jalandhar.

.........Opposite parties

Complaint U/S 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.Gurcharan Singh Adv., counsel for complainant.

Sh.Harleen Kaur Adv., counsel for OP No.1.

Sh.Gagandeep Adv., counsel for OPs No.2 &3.

Opposite party No.4 exparte.

Order

J.S. Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties on the averments that the complainant purchased a Duster Diesel THP RXZ 110 PS Leather manufactured by opposite party No.1 vide invoice No.VSLA12000154 dated 23.1.2013 from the opposite party No.2 and the opposite parties No.3 and 4 represented the opposite parties No.1 and 2 for the sale of the said vehicle. The complainant has paid total sale consideration of Rs.12,01,100/- and also paid Rs.64108/- against registration charges and security number plate charges to the opposite party No.2. On 14.3.2013 the complainant gave the above said vehicle for repair/change of the fender of the right side to the opposite party No.2 and took back the above said vehicle from the opposite party No.2 on 23.3.2013. When the complainant took his vehicle on 23.3.2013 from the opposite party No.2, it came to the knowledge of the complainant that the vehicle in question is accidental repaired and repainted from the front inner side/inner side of the bonnet and the complainant brought this fact to the knowledge of the opposite parties No.2 and 3. At this the opposite party assured the complainant that they will get the said vehicle replaced with new one. The complainant approached the opposite parties No.1,2 and 3 number of times and requested to replace the said vehicle as the opposite parties have supplied/delivered the complainant a accidental repaired and repainted vehicle but the opposite parties No.1 to 3 put off the complainant with one pretext or other. The complainant also served legal notice dated 1.7.2013 through his counsel upon the opposite parties but the opposite parties did not reply the same. On such like averments, the complainant has prayed for directing the opposite parties to replace the vehicle with new one or to refund its price alongwith registration charges etc. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties No.1 to 3 appeared and filed their written replies. In its written reply, opposite party No.1 raised preliminary objections regarding maintainability, not approaching the Forum with clean hands and that the vehicle in question was purchased for commercial purpose and thus complainant is not a consumer. It further pleaded that as per information supplied by opposite party No.2, the complainant himself damaged the vehicle and brought the same for repair after the accident and the claim for the same was obtained from the insurance company, but the complainant has consciously suppressed this fact in the complaint. As per the information given by opposite party No.2 the vehicle in question had been damaged due to an accident by the complainant himself and was sent for repair to Amritsar. It denied other material averments of the complainant.

3. In its separate written reply, opposite parties No.2 and 3 pleaded that the complainant has filed the false complaint against the opposite parties, as the complainant has concealed the material facts and has not approached before the Forum with clean hands. The complainant has misguided and has filed the false complaint against the opposite parties just to cause undue harassment. The vehicle in question went through pre-delivery inspection and flash aves before the purchase of the same by the complainant. The complainant purchased Duster Diesel THP from opposite party No.2 after being fully satisfied with the condition and performance of the vehicle in question. The vehicle in question purchased by the complainant is of the highest quality. After the purchase of the above mentioned vehicle the complainant brought the vehicle in question for routine check up from opposite party No.2 on 18.1.2013 and after that the complainant gave the vehicle in question for first free service to opposite party No.2 on 8.3.2013 and after fully satisfied with the service Amit received the delivery of aforesaid vehicle on behalf of the complainant and signed on the repair order creation certifying that the work has been done to the satisfaction. Amit also gave 10/10 on the feedback from the signed by Amit on behalf of the complainant. The complainant is well aware of this fact that the alleged allegations as alleged in the complaint are false and frivolous. The complainant took the vehicle in perfect condition. After taking the delivery of the vehicle in question to his satisfaction, on 14.3.2013 the complainant gave the vehicle in question in damaged condition which was got damaged by the complainant himself to the opposite party No.2, as fender damage and door painting and denting work was to be done and the vehicle in question was sent for repair to Amritsar. After the service of the vehicle in question to the complainant's satisfaction, the bill amounting to Rs.14,339/- was generated and amount was received by the opposite parties No.2 and 3 vide voucher No.191 dated 23.3.2013. The opposite parties No.2 and 3 vide debit voucher dated 8.4.2013 refunded the amount of Rs.11,667/- to the complainant. The complainant never gave any complaint to opposite parties regarding the alleged vague and frivolous allegations as alleged by the complainant in the complaint. Despite knowing the fact that there is no fault of opposite parties, the complainant has filed the present complaint with false averments just to extract the money from the opposite parties. They denied other material averments of the complainant.

4. Upon notice, opposite party 4 did not appear in-spite of service and as such it was proceeded against exparte.

5. In support of his complaint, learned counsel for complainant has tendered affidavits Ex.CW1/A and Ex.CW2/A alongwith copies of documents Ex.C1 to C39 and closed evidence.

6. On the other hand, learned counsel for opposite party No.1 has tendered affidavit Ex.OP1/A alongwith copies of documents Ex.OP1/1 and Ex.OP1/2 and closed evidence. Further learned counsel for the opposite parties No.2 and 3 tendered affidavits Ex.OP2 OP3/A alongwith copies of documents Ex.OP2 OP3/1 to Ex.OP2 OP3/10 and closed evidence.

7. We have carefully gone through the record and also heard learned counsel for the parties.

8. In its written reply opposite party No.1 has taken preliminary objection No.5 that vehicle in question was purchased by complainant for commercial purpose and thus he is not a consumer. The present complaint has been filed by Munish Shingari Prop. of Shingari Paper Products. From the statement of account Ex.C5 produced by the complainant himself, it is evident that complainant has purchased the car in question for proprietorship firm as amount or price of the car has been paid from the account of the firm. The complainant was asked to file an affidavit whether above said proprietorship firm i.e Shingari Paper Products claimed depreciation regarding the car or not. The complainant has filed affidavit wherein he has stated as under:-

"That the deponent purchased the vehicle in question in the name of Munish Shingari Prop.Shingari Paper Products. The deponent is running his business as proprietor of Shingari Paper Products for earning his livelihood and deponent is filing the income tax return in the name of Munish Shingari Prop.Shingari Paper Products. Munish Shingari and Shingari Paper Products is one and same person. The claiming of depreciation by the deponent does not forfeit the right of the deponent as consumer. The vehicle was purchased and is being used for personal use and not used as commercial vehicle".

9. So the averments in the affidavit that claiming of depreciation by the complainant does not forfeit the right of the complainant as consumer means that complainant is claiming depreciation of the car in the accounts of proprietorship firm. In the affidavit he has stated that the vehicle was purchased and is being used for personal use and not as commercial vehicle. He has further alleged that he is running his business as proprietor of Shingari Paper Products for earning his livelihood. In the complaint, there are no averments that complainant purchased the car to earn livelihood by way of self employment or that he purchased the car for personal use. The amount of the price of the car has been withdrawn from the firm and firm is also claiming depreciation, so the car has become an asset of the firm.

10. In M.R.F. LTD. Versus JIWAN DASS & CO & ANR 11 (1998) CPJ 601, it has been held by our own Hon'ble State Commission that:-

"There may be different types of commercial activities in which companies of manufacturing units may be involved where the process of commercial activity is divided into separate departments such as procurement, manufacturing process, marketing and management. All these combined would be called a commercial activity and such firms or companies purchasing vehicles for their Directors, proprietors or employees or purchasing other goods for them in such process would be part of commercial activity and such like cases of defect found in such goods purchased by such companies, the Consumer FORA is not the appropriate place for redressal of their grievance. They have to approach the Civil court for its remedy. ‘ Further in CRYSTAL PIPES AND CERAMICS PRIVATE LTD Versus DCM DAEWOO MOTORS LTD & ORS III (1997) CPJ 435, it has been held as under

"The learned counsel for the complainant has argued that Managing Director of the complainant had been going to the office and coming back and this could ‘not constitute utilization of the vehicle for any. industrial purpose or business purpose because the complainant have altogether different line of industry where they manufacture S W Pipes and the aforesaid industry has nothing to do with the motor car. This Contention is not acceptable especially seen above the vehicle was purchased for official use by the Director or Directors of the complainant company In view of Para No. 3 above, the complainant cannot wriggle out of his own contentions/assertions Though there were defects in this vehicle especially that its tyres were not of the prescribed dimensions yet the jurisdiction of this Commission is doubtful because the complainant was not a Consumer".

In MANSUKH & CC (OVERSEAS) Vs MARUTI UDYOG LTD & ORS III (2001) CPJ 246, it has been held that:-

" It is not disputed at the complainant is a partnership firm and is engaged in the business of manufacturing and export. The Maruti car was purchased in the name of the partnership firm. According to the appellant the car having developed defects after the purchase, the Firm approached the Forum with a prayer for replacement of the same. It is contended on behalf of the appellant that the purchase of the car is not in any way related to the activities of the Firm. The learned Counsel for the respondent submits that the car was purchased in the name of the Firm and it had become an asset of the partnership firm and it is engaged in generating business of the partnership firm. It has however been stated by the appellant that the car is meant for use by the individual partners. It may not be overlooked that the partners use the car to increase their mobility and to accelerate the growth of the business activities of the partnership firm. Accordingly, it cannot be said that the car was not in any way related to the business activity of the partnership firm. This being the position we think that the Forum was justified in dismissing the case. The complainant may approach the proper Authority for redress, if so advised."

In GENERAL MOTORS INDIA PVT. LTD. Versus G.S. FERTILIZERS (P) LTD. & ANR II (2013) CPJ 72 (NC), it has been held by the Hon'ble National Commission as under:-

"Since the instant case pertains to the purchase of

goods admittedly for commercial purposes' since

the vehicle was purchased by a private limited

company for its Managing Director, this case is

squarely covered by the above judgment

of the Hon'ble Apex Court. The State

Commission erred in not taking note of

this important fact while deciding the

complaint."

11. Further in Duggirala Prasad Babu Vs. Skoda Auto India Pvt Ltd & ORs, II(2014) CPJ 82(NC), the Hon'ble National Commission has held as under"-

"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 his 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 6.3.2013 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 does not fall within the definition of term consumer noted above. Therefore also, he can not maintain the consumer complaint under the Consumer Protection Act 1986. Therefore, in our view, the finding of the State Commission in this regard can not be faulted".

12. The ratio of the above cited authorities is applicable on the facts of the present case. In the above circumstances, we have no hesitation to hold that car was purchased for commercial purpose and as such the complainant can not be termed as consumer under the Consumer Protection Act.

13. Even if for the arguments sake, it is assumed that the complainant is consumer, he has no case on merits. In para No.2 of the complaint the complainant has alleged that on 14.3.2013 the complainant gave the above said vehicle for repair/change of the fender of the right side to the opposite party No.2 and took back the above said vehicle from the opposite party No.2 on 23.3.2013 and when he took his vehicle on 23.3.2013 from the opposite party No.2, it came to the knowledge of the complainant that the vehicle in question was accidental repaired and repainted from the front inner side/inner side of the bonnet and he brought this fact to the knowledge of the opposite parties No.2 and 3. So the accident of the car on 14.3.2013 is in a way admitted by the complainant and that is why he gave his car for change of fender of the right side to opposite party No.2. It is in the affidavit Ex.OP2 OP3/A of Rakesh Kumar, Sales Head, Padam Cars Pvt.Ltd that after taking the delivery of the vehicle in question to his satisfaction, on 14.3.2013 the complainant gave the vehicle in question in damaged condition which was got damaged by the complainant himself to opposite party No.2, as fender damage and door painting and denting work was to be done and vehicle in question was sent for repair to Amritsar. From the evidence on record, it appears that the car of the complainant has again met with an accident. The complainant has himself placed on record report Ex.C-16 of Sh.Tejinder Pal Singh, Surveyor's and Loss Assessor, it is dated 30.5.2014. Under the head of observation, the surveyor has mentioned that as per his vehicle inspection of above said vehicle on 9.4.2014, it was observed that said vehicle has been damaged because of an accident and as such he observed that repair/replacement has been conducted on the following body components (inspection of vehicle was done without dismantalling of body parts).

1. Left Side Apron

2. Right side Apron

3. Left side Longitudnal Member(L/S Gadri)

4. Right side Longitudnal Member (R/S Gadri)

5. Cowl Top

6. Front Tie Member

7. Right side fender(this part was damaged at the time of inspection).

14. So as per above report of surveyor at the time of inspection on 9.4.2014 the right side fender was again damaged at that time. So it means that even on 9.4.2014 right side fender was in damaged condition. The complainant has taken the car after repair and change of fender on 23.3.2013. So it means that after 23.3.2013 the car has again met with an accident and that is why right side fender was again found damaged by surveyor on 9.4.2014 at the time of inspection of the car. In the complaint, the complainant has not alleged anything about the second accident or as to how the fender again got damaged after taking delivery of the car on 23.3.2013. So the complainant has not approached the Forum with clean hands. The opposite parties have produced repair order Ex.OP2 OP3/2 where in under the coloum of Service Advisor Instruction denting and painting is also mentioned. This repair order is signed by the complainant. So it means that denting and painting was done by the opposite party No.2 at the time of first repair. It is also in affidavit Ex.OP1/A of Mr.Galametx Axel, Chief Financial Officer of opposite party no.1 company that complainant against sent the vehicle in question for denting painting and replacement of certain parts on 14.3.2013 which were damaged due to an accident caused by the complainant himself and for which the complainant took claim from the insurance company after surveyor report. It is further in his affidavit that according to the information and documents supplied by opposite party No.2, the vehicle was delivered back on 23.3.2013 after repair, which was accepted only after thoroughly checking the vehicle and recording complete satisfaction of the complainant. This fact is also there in the affidavit Ex.OP2 OP3/A of Rakesh Kumar, Sales Head, Padam Cars Pvt.Ltd. The complainant has taken the delivery of the car after repair on 23.3.2013, The present complaint was filed on 23.8.2013 after about 5 months. In case the complainant was not satisfied with the repair done by the opposite party No.2 or the car was damaged due to accident while in the custody of the opposite party No.2 and has been repaired and repainted due to this reason then he would not have kept quite for five months. In the first instance only fender was not damaged. Ex.OP2 OP3/5 is invoice regarding repair and in it besides fender of right hand front bumper is also mentioned. So it means that in the first instance front bumper was also damaged and that is why in the invoice dated 19.3.2013 besides right hand fender and BMPR, FR i.e front bumper is also mentioned. So it appears that denting and painting was done during first repair. It further appears that the car again met with an accident as is evident from surveyor's report dated 30.5.2014 Ex.C16 as at the time of inspection of the car on 9.4.2014 by the surveyor, the fender was again found damaged.

15. In view of above discussion, we have no hesitation to hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

30.12.2014 Member President