BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
OF TELANGANA : AT HYDERABAD
CC NO. 52 OF 2012
Between :
M/s Core Green Sugar and Fuels Pvt Ltd.,
8-2-268/28/N, Road No.2, Banjara Hills
Hyderabad-034, A.P. rep. by their authorized
Representative B.Praveen Kumar
Complainant
A N D
- M/s Skoda Auto India Pvt Ltd.,
Its Managing Director Mr.Grunberg Oliver
- Mr.Grunberg Oliver,
The Managing Director
M/s Skoda Auto India Pvt Ltd.,
Both are R/o A-1/1, Five Star
Shendra Industrial Area
Aurangabad Taluq and District
Maharashtra-431201, rep. by
- M/s Mahavir Auto Diagnostics Pvt Ltd.,
6-3-907, Raj Bhavan Road, Somajiguda
-
Rep. by its Managing Director
Parsra Kumar Jhabakh
- Parsva Kumar Jhabakh
M/s Mahavir Auto Diagnostics Pvt Ltd.,
6-3-907, Raj Bhavan Road
Somajiguda, Hyderabad-500 082
Opposite parties
Counsel for the Complainant M/s V.Muralidhar Rao
Counsel for the Opposite parties M/s A.P.Venugopal
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
TUESDAY THE SIXTH DAY OF MARCH
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
The complaint is filed under section 17 (1)(a)(i) of the Consumer Protection Act, 1986 by the Complainant to direct the opposite parties to pay Rs.23,38,951/- with interest @ 18% per annum from the date of purchase till realization or in the alternative direct the opposite parties to exchange the car with new car of same or similar model and price along with registration, insurance and other charges; to pay compensation of Rs.25,00,000/- and costs with interest @ 18% per annum.
2. The case of the complainant, in brief, is that the complainant purchased Skoda Superb Elegance (118KW, TFSI) Model car by paying total amount of Rs.23,38,951/-, from the opposite parties under invoice No.Hyd-2009-10/SP-000060 dated 30.10.2009 and the said vehicle got registered with registration No.AP09BW0410. The complainant submits that the said car was purchased for personal use of the Managing Director of the complainant. While so in the month of September 2010 it was found that there was continuous noise particularly more on rough roads and the same was reported to the respondents at the time first service. Thereafter within a month of the first service the said Car completely broke down and on reporting the same the opposite parties towed the vehicle to their workshop on 13.11.2010 where they kept the vehicle for five days. The opposite parties stated that there was software problem in the vehicle and that they rectified it and handed over the car to the complainant. In the month of March 2011 the vehicle broke down and the same was informed to the oppositeparteis whoc sent their mechanic and he informed that the battery needs to be replaced. In the month of April 2011 while going to Karnataka to visit the factory by the Managing Director of the complainant it was noticed that the A/c was not working and after some time the car again broke down and stopped moving. On being intimated, the employees of opposite party no.1 expressed their inability to send their mechanics to get back the vehicle. Having no other alternative the Managing Director of complainant had to proceed on their alternate transport and the vehicle was brought back with great difficulty and handed over to the opposite parties for repairs on 16.04.2011. The opposite parties carried out repairs for more than a month and delivered on 25.05.2011 to the complainant. Again after few days the car broke down and the opposite parties had to tow the vehicle to their workshop on 07.07.2011 and carried out repairs till 23.07.2011. Though the vehicle was within warranty period, it has become the agony and nightmare due to its regular defects erupting repeatedly after repeated repairs. The problems are mainly due to engine malfunctioning and that it needs to be replaced with new engine. Having no other alternative the complainant addressed email on 14.10.2011 to the opposite parties demanding to replace the vehicle but there the opposite parties did not comply the same. Hence, the complaint with reliefs as stated in paragraph no.1, supra.
3. The opposite parties no.3 and 4 filed the written version which was adopted by the opposite parties no.1 and 2. It is submitted in the written version that the car having been purchased by the complainant and is said to have been allotted to the personal use of the Managing Director, the complaint is bad for non-joinder of the Managing Director in his individual capacity as complainant no.2. The car has been used for the benefit of increasing the profits of the company and the same being used for commercial purpose and as such the complaint is liable to be dismissed. As per the record the complainant came to the workshop for the first time for attending to accident repairs on 29.12.2009 i.e., within 3 months of the purchase of the car at the odometer reading of 3937 kms. Subsequent thereto the 1st free service on the vehicle was conducted on 17.09.2010 at 15,041 kms reading except for general items no specific allegations were made nor noticed by the opposite parties except for change of oil, fuel filter etc., which are general in nature while conducting servicing of the vehicle. The complainant has not followed the instructions in the owner’s manual since as per the manual the first free service must be done at around 15000 kms. However, the car was running without any complaint upto 15041 kms which evidences that there was no complaint with the car and the same was trouble free which by itself proves the efficiency of car. The installation of the body underlining has nothing to do with the alleged manufacturing defects as the said body lining is provided to give an extra cushion while during on rough roads as the complainant was alleging of some sounds while driving on rough roads. It was brought to the service station of opposite party no.3 for repairs on 13.11.2010 with kms 17,133 and the complaint as pointed out was rectified and the parts were changed as per the terms of the warranty period itself goes to prove the prompt service provided by the opposite parties to their esteemed customers. If the battery is left on without starting the engine then also the battery gets discharged resulting in the engine not starting. It seems that the complainant has left the car on without starting the engine resulting in battery discharge and the said complaint was attended to by changing the battery under the warranty though the complainant would not have been entitled to the said benefit only as a special gesture. The car was brought to the service camp on 08.04.2011 with Kms reading 26,199 for consumables problems such as lights and indicators and the complaint was rectified. The car was brought on 16.04.2011 with Kms reading 27,033 with the problem relating to consumables only and same were taken care of. There is no deficiency of service or manufacturing defects as change of parts during the warranty period by itself cannot be construed as manufacturing defects necessitating frequent bringing of the car to the showroom. The car was purchased in the year 2009 and by August 2011 it has already traveled about 30,000 kms thus averaging about 15,000 kms per year and about 1200 kms per month which cannot be said to be normal usage of the car.
4. The car was brought to the service station of opposite party no.3 on 07.07.2011 with kms reading 29,529 for problem of consumables and accordingly the problem was rectified and the alleged noise emanating from the engine while running was not true. Likewise, the car was brought to the service station of opposite party no.3 on 09.08.2011 and 23.08.2011 with some complaints and the opposite parties rectified and the car was kept ready for delivery but the complainant denied to take delivery of the car. There is no manufacturing defect or any deficiency of service on the part of the opposite parties and all the problems and complaints were pertaining to the consumables only. Hence, the opposite parties prayed for dismissal of the complaint.
5. In support of the claim of the complainant, the Authorized Representative has filed his evidence affidavit and got Exs. A1 to A25 marked and on behalf of the opposite parties the authorized signatory of the opposite parties filed his evidence affidavit and got Ex.B1 and B2 marked.
6. Counsel on both sides present and were heard. The counsel for both parties have filed their written arguments.
7. In the light of averments of the parties and the material filed by them the following points arise for consideration:-
- Whether the complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act and the complaint filed by him in this Commission is maintainable?
- Whether the Opposite Parties committed deficiency in service in not replacing the vehicle with a new vehicle?
- Whether the complainant is entitled for the reliefs sought for in the complaint.
- To what relief?
8. POINT NO.1 It is a well settled principle of law that in order to maintain a complaint under the Act the complainant should be a “Consumer”. The term 'consumer' has been defined in Section 2(1)(d) and Section 2(1)(o) of the Consumer Protection Act, which reads as under:
(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 then the person who [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 [but does not include a person who avails of such services for any commercial purpose]; Added by Act 62 of 2002 w.e.f. 15.03.2003.
[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer 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;] Section 2(1)(o) defines service as under:-
(o) "service" means service of any description which is made available to potential 16[users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
9. The complainant, in the instant case, is a Private Limited Company. It was the Private Limited Company, which purchased the car for the use of its Managing Director. Though the complainant stated that the car is being used for personal use of the Managing Director of the complainant and as such the complainant is a consumer and the complaint is maintainable under the C.P.Act. On the other hand the opposite parties contended that the complainant is not a consumer as the car purchased by it is being used for the benefit of increasing the profits of the company and the same being used by the Managing Director of the Company for commercial purpose. Admittedly the car was purchased by the complainant for its use in their company and the invoice also issued on the name of the complainant only. .
10. The question, whether the complainants, where purchase of car is for use of Director/employee, falls within the definition of consumer as per Section 2(1)(d) of 1986 Act, has been decided by the Hon'ble National Commission in Crompton Greaves Limited & Anr. Vs. Daimler Chrysler India Private Limited & Ors., Consumer Complaint No.51 of 2006 decided on 08.07.2016, wherein in Paras 6, 9 and 11, it was held as under:-
"6. The goods and services made available by a company to its directors or employees can be classified into the following three broad categories:-
(a) The goods and services which are obtained for and made available to the directors or employees of the company and are used by them only for their personal purposes, unconnected with the business of the company. For instance, the cars used by the directors and employees of the company for their shopping, outings, recreations, etc. or for commuting to and from the office of the company. Another example can be the air conditioners and furniture provided at the residence of the directors and employees of the company or the telephone or broadband got installed by the company at their residence.
(b) The goods and services made available to the directors or employees of the company and used by them primarily for their personal purposes but incidentally, also for the purposes of the company. For instance, a car used mainly for outings, recreations, personal commuting etc. of the directors and employees or their families, but also for visiting the factory and offices of the company or attending the business meetings.
(c) The goods and services made available by a company to its directors and employees primarily for the purposes of the company and used by them mainly for the purposes of the company but incidentally also for their personal purposes. For instance, a vehicle purchased for being used as a staff car or a delivery van, but sometimes also used for the personal purposes of the directors or employees, unrelated to the business of the company.
11. As far as the goods or services falling in category (c) are concerned, since the dominant purpose behind such acquisition is to advance and sustain the business activities of the company and the use for the personal purposes of the directors or the employees being incidental, it can be safely said that such an acquisition was for the commercial purposes of the company.
12. For the reasons stated hereinabove, the issue referred to the larger Bench is answered as follows:-
If a car or any other goods are obtained or any services are hired or availed by a company for the use/personal use of its directors of employees, such a transaction does not amount to purchase of goods or hiring or availing of services for a commercial purpose, irrespective of whether the goods or services are used solely for the personal purposes of the directors or employees of the company or they are used primarily for the use of the directors or employees of the company and incidentally for the purposes of the company.
The purchase of a car or 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 of the company for their personal purposes."
13. It may be stated here that a Company acts/speaks through resolution(s). The terms and conditions regarding salary and perks of a Director are decided by way of resolution of the Company. In the instant case, no evidence to the effect that complainant , as per any resolution of the Company, was entitled to a car has been brought on record. The car was purchased in the year 2009 in the name of the Company, and it is registered in the name of Company, a private limited company. It is case of the complainant that the car was being used by their Managing Director Sreeramaneni Rama Rao, for personal use . Ex.A2 is the authorization certificate issued by the Director Srinivas Sreeramaneni to one Praveen Kumar Balumuri working as Managing Operations in the company authorizing him to prosecute the case in courts from which it only shows that Srinivas Sreeramaneni is the Director and nothing else to show that he is using the car for his personal use. The appropriate and correct evidence to prove that the car was, in fact, being used by Srinivas Sreeramaneni, Director, would be the terms and conditions/perks of the said Director whereby he was authorized to use the said car, which is not there. In these circumstances, we find that there is force in the argument put forth by the Counsel for the opposite parties that the car is being used for the benefit of increasing profits of the company, the same being used for commercial purpose.
14. Since it has not been established by cogent evidence that the car was for the use of the Director of the Company, the complainants do not fall within the definition of consumer as envisaged in Section 2(1)(d) of 1986 Act. The car was purchased by complainant company for its business purposes, as gathered by us on the record. Private Limited Company is not a consumer as held by the Hon'ble National Commission in case titled as "Shivom Projects Private Limited Vs. Toyota Kirloskar Motor Pvt. Ltd. & others" 2015(II)CPJ-422(NC). In this authority, the Hon'ble National Commission has held that the vehicle was not purchased exclusively for purposes of earning livelihood by means of self-employment for Director of Company. It is not for livelihood of Director or personal use of director. He has to use the car for commercial purpose, therefore, complainant was not consumer.
15. In view of our above referred discussion, we find that complainant is not proved to be consumer of opposite parties because it is private limited company solely engaged in business for generating profits. In the circumstances of the case, the complaint filed by the complainant is liable to be dismissed by leaving the complainant to avail of the remedy for Redressal of its grievance before a competent Forum.
In the result, complaint fails and is dismissed as not maintainable. However, there will be no order as to costs. This order of dismissal will not debar the Complainant to seek redressal of their grievances before the appropriate Court/Forum in accordance with the law and in doing so, the Complainant may seek assistance of the observations made by the Hon'ble Supreme Court in the case of Laxmi Engineering Works - Vs. - P.S.G. Industrial Institute reported in (1995) 3 SCC 583 to overcome the hurdle law of limitation.
PRESIDENT MEMBER
06.03.2018
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL
EXHIBITS MARKED
For complainant
Ex.A1 Copy of Certificate of Incorporation
Ex.A2 Copy of extract of Board Resolution – Authorization dated
15.11.2011
Ex.A3 Copy of Tax Invoice dated 30.10.2009
Ex.A4 Copy of invoice (Labour) No.5914 handling charges dated
30.10.2009
Ex.A5 Copy of Tax Receipt dated 30.10.2009
Ex.A6 Copy of Car policy dated 30.10.2009 to 29.10.2010
Ex.A7 Copy of Car policy dated 30.10.2010 to 29.10.2011
Ex.A8 Copy of letter of opposite parties to complainant dated 14.11.2009
Ex.A9 Copy of Car Policy from 30.10.2011 to 29.10.2012
Ex.A10 Copy of Retail invoice dated 17.09.2010
Ex.A11 Copy of retail invoice dated 12.10.2010
Ex.A12 Copy of retail invoice dated 13.11.2010
Ex.A13 Copy of retail invoice dated 11.03.2011
Ex.A14 Copy of retail invoice dated 08.04.2011
Ex.A15 Copy of retail invoice dated 25.05.2011
Ex.A16 Copy of retail invoice dated 23.07.2011
Ex.A17 Copy of History Card dated 09.08.2011
Ex.A18 Copy of email dated 14.10.2011
Ex.A19 Copy of reply email dated 15.10.2011
Ex.A20 Copies of Brochure of SkodaSuperb Car
Ex.A21 Copy of Master Details/Particulars
Ex.A22 Copy of View Signatory Details
Ex.A23 Copy of Company Master Details
Ex.A24 Copy of View Signatory Details
Ex.A25 Copies of Service Booklet
For opposite parties
Ex.B1 Copy of Vehicle History Card
Ex.B2 Copy of email dated 15.10.2011
PRESIDENT MEMBER
