CONSUMER DISPUTES REDRESSAL FORUM KOTTAYAM

Present

Sri. Bose Augustine, President

Smt. Renu.P. Gopalan, Member

CC No. 78/11

Monday the 7^th day of June, 2014.

Petitioner                                                           :  Rajesh K.A,

                                                                             Puthusseril House,

                                                                             Manjoor PO,

                                                                             Kottayam.

                                                                            (Adv.Cyril Thomas )

                                                                        Vs

Opposite parties                                              :   1)Tata Motors,

                                                                                Marketing and Customer Support,

                                                                                Passenger car Business Unit

                                                                                One Forbes, 5^th Floor,

                                                                                Dr. V.B. Gandhi Marg, Fort      

                                                                                For, Mumbair 406 023.

                                                                                (Adv. P.Fazil)

                                                                              2) The Customer Relationship Manager,

                                                                                  Kulathunkal Motrs(Passenger Car

                                                                                  Dealer)toll Junction, Chakai-

                                                                                 Kazhakuttom, Bye Pass Road,

                                                                                 Anayara PO, Trivandrum 695 029.

                                                                                    (Adv. Abhilash Chandran)

                                                                             3) The Customer Relaltionship

                                                                                Manager(Focuz Motors) Tata

                                                                               Authorised Service Centre, Work Shop

                                                                                12/173, Manipuzha Junction,

                                                                               Nattakom PO, Kottayam 686 013.

                                                                              (Adv.V.Krishna Menon, P.J.Anilkumar

                                                                                    M.K.Jose & Prinsun Philip)

ORDER

Sri. Bose Augustine, President

             Case of the complainant filed on 21-03-11 is as follows:

            Complainant on 30-6-10 purchased a new Indigo CSLS Car bearing Reg.No.KL-36/A-9226 from the 2^nd opposite party by paying  Rs.4,75,420/-, manufactured by 1^st opposite party.  The 3^rd opposite party is the authorized service centre of 1^st opposite party.  Complainant purchased said car to use as taxi for his livelihood.  According to complainant after few days of its purchase the car showed some missing problems and complainant cannot use the vehicle.  Complainant on several times entrusted the vehicle to 2^nd opposite party for curing the defects.  But defects of the vehicle were not cured.   On 17-12-10 complainant entrusted the vehicle to the 3^rd opposite party for repairing and servicing.  After inspection it was found that the ECU, TCIC BS-III etc were to be replaced and 3^rd opposite party issued the work order.  According to complainant from the work order, it can be seen that the vehicle has manufacturing defects and mechanical problems.  3^rd opposite party delivered the vehicle after repairing only on 14-1-11.  According to complainant job slip issued by the opposite party shows the vehicle has the problem of chuck engine glowing in running, knocking sound chalk, engine missing, chuck vehicle off on idle speed etc.  According to the complainant the above defects of the car was due to manufacturing defect of the car.  So complainant approached the opposite parties to replace the defective vehicle but they were not amenable to do so.  According to complainant the acts of opposite parties amounts to deficiency of service and unfair trade practice.  Hence this complaint.

            1^st opposite party filed version contenting that the complaint filed by the complainant is an abuse of process of law and is not maintainable. According to 1^st opposite party complainant alleged manufacturing defects of the car without any expert report.  According to 1^st opposite party complainant is not a consumer since the complainant purchased the car for business purpose.  According to 1^st opposite party the complainant failed and neglected to do proper service, as recommended for smooth and maximum performance as stated in the owner’s manual.  Every customer’s has to be carryout the mandatory recommended services at regular intervals but complainant failed to do so.  According to 1^st opposite party till

20-4-11 the said car covered 17695Km and the car covered 20000Km within a period of 9 months, From this it is proved that the car is in absolute roardworthy condition.  And the jobs carried out on the car were only minor and repairs done were required to be carried out due to regular, continuous extensive and faulty usage of the said car.  According to 1^st opposite party the complainant has been completely satisfied with the services rendered and he had took the vehicle after proper satisfaction as trial.  According to 1^st opposite party there is no deficiency in service or unfair trade practice on the part of them and they pray for dismissal of the complaint with their cost.

            Second opposite party filed version contenting that the allegations against 2^nd opposite party is concocted only for the purpose of filing a complaint.  And the complainant is not entitled to get any relief as against 2^nd opposite party since there is no deficiency in service on the part of 2^nd opposite party and they pray for dismissal of the complaint with their cost.

            3^rd opposite party filed version contenting that the complaint is not maintainable and complainant is not a consumer and he has not produced any evidence to show that he is using the vehicle for his livelihood by self employment.  According to 3^rd opposite party on

28-12-10 the vehicle was entrusted to the workshop of 3^rd opposite party due to the defects, missing in the engine and after cursing the defects complainant had taken delivery of the vehicle on 14-1-11 with full satisfaction.  After 14-1-11 the complainant has not approached the 3^rd opposite party with any complaints in his vehicle.  According to 3^rd opposite party there is no deficiency in service or unfair trade practice on the part of them and they pray for dismissal of the petition with their cost.

Points for determination are:

1. Whether the complaint is maintainable or not?
2. Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?
3. Reliefs and costs?

Evidence in this case consists of the affidavit of complainant and Ext.A1 to A20 documents and affidavit of 3^rd opposite party. Complainant and opposite party 2 & 3 filed argument notes.

Point No.1

            According to complainant, he purchased an Indigo CSLS Car for to use it as a taxi for  his livelihood.  In the complaint itself he stated that the very purpose of purchasing the vehicle to use it as a tax and to sustain his means of subsistence.  As per Section 2(d) of Consumer Protection Act a consumer means(i) a person who buys any goods for consideration, it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or partly paid and partly promised, or whether the  payment of consideration is deferred,

            ii) a person who uses such goods with the approval of the person who buys such goods for consideration,

iii)But does not include a person who buys such goods for resale or for any commercial purpose.  So it is very clear that when a person purchase goods on any activity commercially for the purpose of earning profit he will not be a consumer within the meaning of Section 2(d) (1) of the Act.  A person who buy’s a car and uses it for his personal use is certainly a consumer.  But if he plying the car as a taxi he is not a consumer.  In the explanation to the said section it is stated that if the commercial use is by the purchase himself for the purpose of earning his livelihood by means of self employment, such a purchaser is a consumer.  Here according to the petitioner he purchased, the car to use it as a taxi as a means of self employment.  If the petitioner purchased the car and operate it himself for earning his livelihood, he would be a consumer.  According to opposite party since the vehicle is purchased for a commercial activity, petitioner is not a consumer.  Here eventhough opposite party has a definite contention that petitioner purchased car for a commercial activity, it is the bounden duty of the petitioner to produce his licence and badge to drive the vehicle to prove that he himself drives a taxi.  Nothing has been produced on records to prove that the complainant is plying the vehicle himself as a taxi for his livelihood.  Hence in our view the complainant is not a consumer and complaint is  not maintainable.  Point No.1 is find accordingly.

Point No.2

            In view of the finds in point No.1 complaint is dismissed as not maintainable.

Sri. Bose Augustine, President           Sd/-

Smt. Renu.P. Gopalan, Member         Sd/-

Appendix

Documents of complainant

Ext.A1-Lawyer’s notice dtd 21-1-11

Ext.A2series-AD cards

Ext.A3-Postal receipt

Ext.A4-photocopy of certificate of registration

Ext.A5-photocopy of proforma invoice dtd 26-7-10

Ext.A6-photocopy of tax invoice

Ext.A7-photocopy of new vehicle release order dtd 30-7-10

Ext.A8-photocopy of job slip dt 28-2-10

Ext.A9-Gate pass

Ext.A10-job slip dt 24/12/10

Ext.A11-photocopy of job slip dt 10/2/11

Ext.A12-photocopy of job slip dtd20/4/11

Ext.A13-photocopy of job slip dtd 21/6/11

Ext.A14-tax invoice dtd 11/5/11

Ext.A15-job slip dtd 2-1-12

Ext.A16-tax invoice dtd 11-2-11

Ext.A17-tax invoice dtd 20-4-11

Ext.A18 tax invoice dtd 12-5-11

Ext.A19-tax invoice dtd 29-8-11

Ext.A20-tax invoice dtd2-1-12

By Order,

Senior Superintendent.