Tamil Nadu

StateCommission

FA/420/2013

MERCEDES BENZ INDIA PVT. LTD, THE CHIEF EXECUTIVE ENGINEER - Complainant(s)

Versus

S. SENTHIL KUMAR - Opp.Party(s)

S. RAMASUBRAMANIAN AND ASSO

25 Feb 2022

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :       Hon’ble Mr. Justice R. SUBBIAH                              PRESIDENT

Tmt  Dr. S.M.LATHA MAHESWARI                                       MEMBER

                        

F.A.NO.420/2013

(Against order in CC.NO.384/2012 on the file of the DCDRC, Coimbatore)

 

DATED THIS THE 25^th DAY OF FEBRUARY 2022 

 

1.       The Chief Executive Engineer

          Mercedes Benz India Pvt. Ltd.,

          E3, MIDC, Chakan Phase III

          Chakan Industrial Area, Kuruli and Noghoje

          Tal: Khed, Pune 410 501

 

2.       The Chief Manager

          M/s. Sundaram Motors

          TUSC West Veli Street, Madurai – 652 001

 

3.       The General Manager

          M/s. Sundaram Motors                                         M/s. R. Sudhinder

          368-369 Mettupalayam Road                                      Counsel for

          Coimbatore – 641 043                                      Appellants /1 to 3 Opposite parties

 

                                                         Vs.

S. Senthil Kumar

Managing Partner of M/s. Lotus Knits

10/576, Mullai Nagar                                                        M/s. R.Ramesh

Ganapathipalayam Road, Veerapandi Post                             Counsel for

Tiruppur – 641 605                                                Respondent/ Complainant

 

 The Respondent as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had allowed the complaint. Against the said order, this appeal is preferred by the opposite parties praying to set aside the order of the District Commission dt.8.7.2013 in CC.No.384/2012.

 

          This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing for both parties and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:

ORDER

 

JUSTICE R. SUBBIAH,  PRESIDENT   

 

1.         This appeal has been filed by the appellants/ opposite parties as against the order dt.8.7.2013 passed by the District Commission, Coimbatore, in CC.No.384/2012, directing the opposite parties jointly and severally to replace the defective engine in the complainant’s car bearing Regn. No.TN 42C 7989 with new defect free engine of the same model, alongwith compensation of Rs.1,00,000/- and cost of Rs.1000/-.

 

2.       The brief facts of the complaint before the District Commission are as follows:

            The complainant is a Managing Partner of a partnership firm called M/s. Lotus Knits and indulging in the business of knits throughout the world and doing the business of imports and exports of knits.  The complainant and his mother are the partners of the said business.  Hence the luxury car is highly essential for the personal use of the complainant since foreign business clients are frequently visiting to the complainant’s place of business and accustom their travelling in a comfortable manner for which the luxurious vehicle is very much essential.  Moreover, as a Managing Partner of the firm, he is in need of using the luxurious car to keep up the business status in the business society.  On 25.5.2010 the complainant has purchased a Mercedes Benz Car bearing registration No.TN 42 C 7989 white diesel car Model C220 CD-1 (CKDW- 204 C 220 CDI Classic 423101650) from the opposite parties 1 to 3 for a sale price of Rs.26,26,858/- in the name of his partnership firm M/s. Lotus Knits from the opposite parties, and the said car was delivered through the 3^rd opposite party.  Apart from that a sum of Rs.54142/- was paid towards insurance.  The said vehicle was registered on 31.5.2010 with the Assistant Registering Authority, Tiruppur South.  The car being a luxurious one, it should be free from mechanical or anyother defects.  While so, within a short span of a month’s time i.e., from 30.6.2010 onwards the car   started to give a high engine noise and vibration, apart from discharging heavy black smoke from the engine.  The vehicle was stalling, vibrating, emitting heavy smoke and the engine noise was abnormal.  The said fact was informed to one Mr.Senthilkumar, Service Manager and one Rameshan, Divisional Manager of 3^rd opposite party, who personally came and noticed the said engine problems, and assured to attend the defects through the mechanics.  Thereafter the vehicle was attended by a mechanic, who convinced the complainant that the vehicle would be normal thereafter.  But to the shock of the complainant, the same problem arose on 28.7.2010, when the vehicle covered only 2980 kms.  Hence the complaint was registered by the complainant on the same day.  Further again and again the very same complaint was registered on 25.10.2010, 10.3.2011, 26.7.2011 and 7.10.2011.  In all occasions the mechanic of the 3^rd opposite party used to attend the work.  However continuously the very same problems persisted and the said car began to show a red or yellow colour lamp which is the warning indicator, thereby instructed the complainant to take the car for the nearest workshop for attention.  Subsequently, the 3^rd opposite party took the car to their custody from 7.10.2011 to 21.12.2011.  Inspite of attending the engine fault during the above said period, the opposite parties have failed to do proper service to the complainant’s car and the very same problem continues till date.  From 27.12.2011 onwards the complainant was unable to use the car and the same is yet to be rectified.  Further after 27.12.2011 there was no response from the opposite party.  Hence the complainant sent a legal notice to the opposite party on   13.2.2012 and the said notice was acknowledged by the opposite parties.  The 3^rd opposite party sent Mercedes Benz Technical expert to inspect the complainant’s car on 15.2.2012 and he has noticed the said defects in the engine and the opposite parties are unable to rectify the defects noticed by him.  On 16.2.2012 the 3^rd opposite party sent email to the complainant and requested him to send his car to 3^rd opposite party’s service centre to perform necessary repairs.  Accordingly on 20.2.2012 the complainant had sent his car to the 3^rd opposite party’s service centre.  The car was in the 3^rd opposite party’s service centre for two days and was delivered on 23.2.2012 evening.  The complainant noticed the same problem again, and the car was not in a fit condition to run on the road as the same vibration, smoke and noise are there and the complainant’s car is kept idle without any use.  On 3.3.2012 the 3^rd opposite party sent a reply to the complainant’s legal notice with untrue and false statements and further again directed the complainant to handover the car to rectify its mistake.  The vehicle had become unfit to use on the road from 27.12.2011 onwards.  To prove and establish the said defects in the car, the complainant had also got a certificate on 16.7.2011 from one V.Krishnamoorthi, Chartered Engineer and Insurance Certifier of Tirupur.  Hence finally left with no other option the complainant filed a complaint before the District Commission praying for a direction to the opposite parties to replace a new engine to the complainant’s car by taking back the existing engine or to pay a sum of Rs.5,00,000/-, to pay a sum or Rs.294310/- towards alternative usage of car expenses alongwith compensation of Rs.5 lakhs towards mental agony and Rs.5 lakhs towards compensation alongwith cost. 

         

3.       The said claim was resisted by the 1^st opposite party by filing version stating that the car manufactured by the 1^st opposite party are world class cars with a reputation for safety, comfort, quality and engineering precision.  The car was purchased by commercial organisation for engaging in commercial activities, in which the complainant is a manufacturing partner.  When it is stated that the complainant is Managing partner of a partnership firm called as Lotus Knits which is engaged in the business of knits throughout the world and the vehicle was purchased by the firm in connection with the visits of foreign business clients and for maintaining his business status, then the complainant cannot be considered as consumer as provided under Sec.2(1) (d) of the Consumer Protection Act, 1986, which specifically excludes a person (purchaser) who obtains such goods for any commercial purpose unless such goods are bought and used by him for the purpose of earning his livelihood by means of self employment.  As it is not the case of the complainant that the car was purchased for self employment or to provide him livelihood, admittedly the complainant is not a consumer as per the provisions of the Consumer Protection Act, 1986. 

 

4.       The opposite parties 2 and 3 has filed a version stating that the complainant had purchased a Mercedes Benz car from the 3^rd opposite party on 25.5.2010.  The complainant had used the car for about two months without any concern.  But the complainant reported about the alleged engine noise only on 28.7.2010 by email.  But the complainant falsely asserted in the complaint that the engine noise problem occurred as if from 30.6.2010 itself.  Immediately after the receipt of the complaint from the complainant, the minor glitches in the engine were rectified.  Therefore accusing the opposite party that they had failed to do proper service is totally false.  Similarly it is also false to say that from 27.12.2011 onwards the complainant is unable to use the car.  By email dt.20.12.2011 the repair work was completed and requested the complainant to come for joint road test before taking delivery of the car.  On 21.12.2011 the complainant sent an email to the 3^rd opposite party and informed that due to his busy schedule he could not come to Coimbatore to take delivery of the car and requested the 3^rd opposite party to deliver the car at Tiruppur.  Thus the 3^rd opposite party wantonly failed to come and join for road test.  Without joint road test the car was handed over to the complainant on 21.12.2011 at Tiruppur.  These opposite parties after receiving the lawyer notice from the complainant did not hurry to send a reply notice for they wanted a personal discussion with the complainant.  After receiving the notice the 3^rd opposite party immediately sent an email dt.16.2.2012 calling upon the complainant to handover the vehicle to perform necessary repairs if any.  The car was sent to the 3^rd opposite party workshop and again checked the complainant’s queries and attended to his complaints.  The complainant time and again magnified the minor repairs and sent a reply dt.3.3.2012 in order to explain the reality of the issue.   The deficiency of service would arise only when the opposite party refused to attend the complaint.  Here the opposite party attended the complainant’s car every now and then, and attended the minor glitches of the car.  The report of one Mr.Krishnamoorthy is not a qualified, certified and expert person to assess the condition of the car; hence his report cannot be taken into consideration, since it is self serving one.  The complainant cannot claim a sum of Rs.294310/- towards hiring car.  As per the complainant’s allegation the car was not used only after 27.12.2011.  Therefore, he probably would have used the taxi only after 27.12.2011, but the complainant claims taxi fare from 21.6.2011 itself  which shows the veracity of the complaint.  The complainant had used the car for 2 ¹/₂ months and covered the distance of 7300 Kms.  Further the complainant concealed the fact that the courtesy car had rental value of Rs.2,00,000/- per month and he enjoyed the said car for 2 ¹/₂ months without paying any rental charges.  Thus he submitted that there is no deficiency of service and sought for dismissal of the complaint. 

 

5.       In order to prove the complaint proof affidavits were filed by both parties alongwith 12 documents on the side of the complainant which were marked as Ex.A1 to A12, and documents filed by the opposite parties 2 and 3 were marked as Ex.B1 to B7 and the documents filed by the 1^st opposite party  were marked as Ex.B8 to B12. 

 

6.       The District Commission after analysing the evidence had come to the conclusion that there was deficiency of service on the part of the Appellants/ opposite parties and directed them to replace the defective engine in the complainant’s car with a new defect free engine alongwith a sum of Rs.1 lakh towards compensation for mental agony and cost of Rs.1000/-.

 

7.       We have heard the learned counsels appearing on bothsides, perused the materials placed on record and the order impugned.

8.       The main submission of the learned counsel for the appellants is that the Respondent could not be considered as a consumer within the meaning of the Consumer Protection Act 1986.  Hence the complaint is not maintainable.  In this regard the learned counsel for the appellant had also invited our attention to paragraph 3 and 5 of the complaint, wherein it has been stated that “the complainant is a Managing Director of the company called M/s. Lotus Knits, and he purchased the car mainly for personal use and mainly for the foreign business clients who are frequently visiting the complainant’s place for business and to accustom them with luxurious car is very much essential”.  Therefore, it is clear that the car was used for only business purpose, and thus the complaint is not maintainable within the meaning of Consumer Protection Act. 

          Whereas, according to the Respondent the reading of the complaint itself would show that the car was purchased only for personal use of the Managing Director of the company, and the said car also had been used for accommodating the foreign clients.  Therefore, it cannot be said that the car was used for business purpose.  In view of the submissions it would be appropriate to extract the relevant paragraph from the complaint. 

“The complainant is a Managing Partner of a partnership firm called M/s. Lotus Knits and indulging in the business of Knits throughout the world and doing the business of imports and exports of knits.  The complainant and his mother are the partners of the said business.;

   A luxury car is highly essential for the personal use of the complainant. In fact, foreign business clients are frequently visiting to the complainant’s place of business and to accustom their travelling in a comfortable manner the luxurious vehicle is very much essential.  Apart from that, as a Managing Partner of the firm, he is in need of using the luxurious car to keep the business status in the business society.

On 25.5.2010 the complainant had purchased a Mercedes Benz Car bearing registration No.TN 42 C7989- white diesel car Model C 220 CD-1 (CKDW – 204 c 220 CDI Classic 423101650) Chasis No.WDD 2040026 LO 36753, Engine No.6319130168746 from the opposite parties 1 to 3 for a sale price of Rs.2626858/- in the name of his partnership firm M/s. Lotus Knits from the opposite parties and the said car was delivered through the 3^rd opposite party.  

 

   The very reading of the complaint would clearly show that complainant was using the car for the conveyance purpose of the foreign clients who are frequently visiting to the complainant’s place of business.  Therefore it is apparent that the car was incidentally used for his personal purpose.

 In this regard it would be appropriate to rely upon the judgement  of the Hon’ble National Commission reported in 2016 SCC Online NCDRC 2121, wherein it was held that “The purchase of a car of any other goods or hiring or availing of services by a company for the purposes of the company amount to purchase for a commercial purpose, even if such a car or other goods or such services are incidentally used by the directors or employees of the company for their personal purposes”. 

          In view of the above, since the car had been purchased in the name of the company for the use of the Director, that too specifically mentioned for the conveyance purpose of the foreign delegates, then it is meant that the car had been purchased for the commercial purpose, thereby the complainant cannot come under the purview of Sec.2(1)(d) of the Consumer Protection Act 1986. 

 

9.       As far as the merit of the case is concerned it is the contention of the learned counsel for the complainant that the car was making abnormal engine noise apart from emitting heavy black smoke.  When this was informed to the opposite parties, their service mechanics have attended the vehicle.  Eventhough according to the complainant the problem continued persistently.  In order to support his contention he has also produced the report of the insurance surveyor/ valuer or Chartered Engineer as seen under Ex.A11. In the surveyor report it   was stated that the said chartered engineer had personally inspected the vehicle and submitted the findings that the vehicle was personally inspected by him in a running condition and that the vehicle was emitting heavy smoke and the vehicle was stalling, vibrating and the engine noise was abnormal.  

          But as seen from the above report, the Respondents were not the parties to the inspection.   Therefore, the said document could be considered as a self serving one, and therefore no reliance could be placed on the said document.  Moreover in our considered opinion, when there is a disputed question of facts involved, the complainant ought to have taken up an application before the District Commission for appointment of independent person having technical knowledge to inspect the car and submit the report.  In the absence of such report, this court cannot come to a conclusion that there is manufacturing defect in the vehicle. 

          Therefore, looking at any angle, we are of the opinion that the complainant has not established the case.  But without considering all these facts, the District Commission, had allowed the complaint on erroneous reasons.  Thereby the order impugned needs to be set aside and is accordingly set aside. 

 

10.     In the result, the appeal is allowed by setting aside the order of the District Commission, Coimbatore in CC.No.384/2012 dt.8.7.2013, and the complaint is dismissed.  There is no order as to cost throughout.

          Registry is directed to discharge the mandatory deposit, alongwith accrued interest in favour of the Appellant. 

 

 

 

 

  S.M.LATHAMAHESWARI                                               R. SUBBIAH

               MEMBER                                                                               PRESIDENT

 

 

INDEX : YES / NO

Rsh/dRSJ/ ORDERS