BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
FA 1082 of 2009 against C.C. 284/2002, Dist. Forum, Kurnool
Between:
B. Siva Shankar Reddi
S/o. Chinna Venkata Reddi
D.No. 8/499, Medara Street
Proddatur Town & Mandal
Kadapa Dist. *** Appellant/
Complainant.
And
1) The Ashok Leyland Ltd.
Rep. by is Chairman
9, Rajaji Salari, Chennai
2) Auto Motive Manufacturers Pvt. Ltd.
Rep. by its Branch Manager
8/11, N.H.-7, Dupedu Village
A/W Ullindakinda, Dhone Road
Kurnool Dist. *** Respondents/
OPs
Counsel for the Appellant: M/s. S. Harinath Reddy
Counsel for the Respondent: M/s. M. Papa Reddy (R1)
M/s. Sunil B. Ganu (R2)
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
SRI R. L. NARASIMHA RAO, MEMBER
&
SRI T. ASHOK KUMAR, MEMBER
TUESDAY, THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND ELVEN
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President)
***
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that he was educated but un-employed. He purchased two Ashok Leyland Tuskars manufactured by the respondents on 26.2.2000 vide Ex. A6 with a warranty of 18 months, and took delivery of it. He purchased the said vehicle by taking finance from Sundaram Finance Ltd. He was earning amounts by hiring the said vehicles. On 13.3.2001 they found that there was a crack in chassis on right side housing beside diesel tank. When it was sent for periodical maintenance to R2 it undertook to rectify the defects. When he complained about the manufacturing defect pointed out above it was refused on the ground that it was not a manufacturing defect. Again he informed R2 on 30.10.2001 viz., the principal about the defect. However, it did not respond. Since the same was developed during the warranty period the respondents were under obligation to replace. Since it was not rectified it resulted in 30% - 40% of loss in operating the fleet than the permitted load. He suffered a loss of Rs. 25,000/- per month altogether a sum of Rs. 3,75,000/-. Therefore he filed the complaint claiming Rs. 82,000/- for rectifying the defective chasis, Rs. 3,75,000/- towards loss besides compensation of Rs. 25,000/- towards mental agony and Rs. 15,000/- towards costs.
3) R1 resisted the case. It alleged that the complainant is a commercial operator and has purchased the vehicle for commercial purpose. Since it was not for self-employment as evidenced from the fact as he was hiring more than one vehicle. The Dist. Forum has no territorial jurisdiction as no cause of action has arisen at Kurnool. However, it admitted that LH long member crack was found in the vehicle on 30.3.2001. However, it was not due to manufacturing defect. The alleged problem was attributable to defective body-building, contrary to manufacturer’s guidelines. While getting the body-building, holes had been drilled on the top flange of chassis frame long member, to fix up the body bolts through wooden sub-frame. In addition to this he had added extra spring leaves. At that portion the crack had developed. One of the conditions in the warranty is that “ if the vehicle is fitting with body of design, size, position, and mounting other than what is prescribed by the manufacturer, if the overhand is extended in excess of the original specification given in the operator’s hand book, if the vehicle is loaded beyond its carrying capacity as certified by the manufacturer, the warranty shall become null and void.” It was informed to him. It was proposed to consider his request only as a goodwill gesture, however, he did not agree to replace with a new chassis, though the problem itself was outside the purview of warranty. However, he chose to file the complaint seeking unreasonable claims. It was not liable to reimburse the loss of income or amounts that were claimed by the complainant. Therefore, it prayed for dismissal of the complaint with costs.
4) R2 equally resisted the case. It alleged that the complainant came to its workshop on 13.4.2000, 19.6.2000, 6.10.2000, 27.10.2000 and 12.3.2001 for periodical check-ups. They have attended to the same. There was no crack in the right long chassis on those respective dates. For the first time it received a letter on 16.4.2001 complaining crack in the right side long member. It was apparently due to body building flaws contrary to the warranty conditions. The senior service engineer on inspection found that the body builder has drilled holes on the top flange of chassis frame long member to fix up the body bolts through wooden sub-frame. Besides that he added extra spring leaves and recambered the spring leaves. Therefore the frame has become weakened. In fact in order to maintain good rapport and goodwill it had informed that it would consider on goodwill basis. However, he did not come forward to take alternative right side long member. There was no manufacturing defect nor deficiency in service on its part. Therefore it prayed for dismissal of the complaint with costs.
5) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A10 marked while the respondents filed the affidavit evidence of R1 and that of 3rd party and got Exs. B1 to B4 marked.
6) The Dist. Forum after considering the evidence placed on record opined that the problem of developing crack in right hand member was due to faulty assembling by various persons. He did it contrary to warranty conditions. There was no manufacturing defect, and therefore dismissed the complaint.
7) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that there was defect in the chassis. It was surfaced within the warranty period of 18 months. Due to the defect he had sustained loss of Rs. 25,000/- per month. Therefore, he prayed that the complaint be allowed.
8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9) It is an undisputed fact that the complainant had purchased two lorries from R1 & R2 on 26. 2. 2000 with a warranty period of 18 months. In February, 2001 in one of the lorries a crack was developed in chassis bottom flange vide Ex. B3 dt. 13. 3. 2001. In the product performance report in the coloumn investigation and findings it was mentioned : “ Chassis right hand long member found cracked at the bottom flange ……” When a copy of Ex. B3 was furnished to the complainant he did not choose to controvert it. In Ex. B4 under the column ‘Action taken to rectify defect’ it was mentioned: “ Vehicle is outside warranty by time-wise. Same vehicle suffered RH long member crack and was rejected earlier dt. 12.3.2001 at 79498 KMs. Dealer requesting it under goodwill as customer further purchased 2214 recently.” R2 by letter Ex. A7 dt. 19.4.2001 informed the complainant “ We have clearly explained to you about the body building flaws, and requested you to do certain modification to contain further damages to chassis side members.” Further it stated “We hope that the said modification has been done on both of your vehicles. Kindly be informed that the problem has been already highlighted to the concerned authorities. Since the problem is unique and not received in other vehicles, we are taking up with our principals to proceed further in this regard, and hence kindly bear with us until such time we hear from them.”
10) The complainant has admittedly got the body building etc. done through some other source. Clause-8 of Ex. B4 reads as follows :
“The warranty shall become null and void : If the vehicle is used in ways not recommended by the company, if any features of the vehicle are modified, if the vehicle is repaired or disassembled, even partially, by persons not belonging to AL’s authorised workshop, if the vehicle is fitted with body of design, size, position, and mounting other than what is prescribed by AL, if the overhang is extended in excess of the original specification given in the operator’s handbook, if the failure of the tractor is due to faulty design/coupling of the trailer. (in the case of tractor trailer combination) or if the vehicle is loaded beyond its carrying capacity as certified by AL.”
Since the complainant got the body building at some other place assuming that there was crack in the right hand long member, still the respondents could not be held guilty nor it could be attributed to manufacturing defect. R2 has admittedly attended to on the vehicle evidenced under bunch of job cards Ex. B2.
11) In Ex. B4 there was a mention that crack was developed due to complainant not following the operator manual in getting the body building by authorised builder or manufacturer. It was contrary to stipulation mentioned above. In fact the respondents filed the affidavit evidence of one Mogal Mahaboob Baig of Proddatur mentioning that he made body building to the complainant’s vehicle. Since the complainant got it through a third party not authorised by respondents it cannot be held guilty of manufacturing defect. We agree with the findings of the Dist. Forum in this regard.
12) Learned counsel for the respondents relying a decision of the Supreme Court in Cheema Engineering Services Vs. Rajan Singhi reported in (1997) 1 SCC 131 contended that the complainant having purchased the lorries for hiring to third parties that it could not be held that it was for his self-employment to eke out his livelihood. Only in order to clutch the jurisdiction of the consumer fora he pleaded that two lorries were purchased to eke out his livelihood. Evidently he was hiring the vehicles which he himself mentioned in his complaint. He was not using it to eke out his livelihood. The complainant did not file any document or his accounts to show as to the amount that was earning by hiring the lorries. Except claiming Rs. 3,75,000/- on the ground he sustained a loss of Rs. 25,000/- per month he did not file any document to establish the said fact. All this goes to show that purchase of lorries is for commercial purpose. Their Lordship in the above decision held :
“4. If any goods are purchased for consideration, paid or promised or partly paid or under any system of deferred payment including any user of such goods other than the person who by such goods for the 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 the purchaser is the 'consumer' within the meaning of the Act. But the Act provides for certain exceptions, namely, "does not include a person who obtains such goods for resale or any commercial purpose; or...”
5. The Explanation to the definition of 'consumer' has been added by way of an amendment in 1993 which reads as under:
“Explanation--for the purposes’ of Sub-clause (i) "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.”
6. In other words, the Explanation excludes from the ambit of commercial purpose in Sub-clause (i) of Section 2(1)(d) , any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. The question, therefore, is: whether the respondent has been using the aforesaid machine for self-employment? The word 'self-employment' is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but "merely earning livelihood in commercial business", does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. 'He' includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that therefore, it is not a commercial purpose. The orders of all the Tribunals stand set aside.”
Coming to the facts he himself admitted that he was hiring the lorries. He ought to have plied the vehicles by himself for earning livelihood by means of self employment. By following the dicta of Hon’ble Supreme Court cited above, we are of the opinion that the dispute does not come under the provisions of the Consumer Protection Act. We do not see any merits in the appeal.
13) In the result the appeal is dismissed. No costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
3) ________________________________
MEMBER
13/09/2011
*pnr
“UP LOAD – O.K.”
