Presented by Miss R. Pattnayak, President .
(1) The Case of the Complainant is that, he purchased an “APE Truck” from the Opposite Party No.2(two) i.e. The local authorized dealer of piaggio vehicle on dated 31/10/2008, on payment of Rs.2,50,500/-(Rupees two lakh fifty thousand five hundred)only, being financed by the Opposite Paty No.4(four) i.e. Sriram Transport Finance Corporation Ltd., Sambalpur. The Opposite Party No.2(two) also issued the purchase bill bearing NO.DJM/86 Dt.31/10/2008. The said vehicle was also registered in the office of R.T.O., Bargarh having Registration No. OR-17-F-4410. The Opposite Party No.1(one) is the Manufacturing Company of the said vehicle. The Opposite Party No.3(three) is the company's authorized servicing center.
(2) The Complainant was taking the said vehicle for servicing to Opposite Party No.3(three) as per the servicing dates and the same has also duly entered by the Opposite Party No.3(three) in the owner's manual. Last servicing was also made on Dt.10/03/2010. The warranty period of the said vehicle was for eighteen months. The fact that the vehicle was within warranty period was not ascertainable in absence of the warranty certificate which is not filed by any Parties in the case but being admitted by all the Parties need not be proved further.
Further case of the Complainant is that, on Dt.29/03/2010, the engine of the said vehicle gave trouble after few days of its servicing on Dt.10/03/2010. So he approached to Opposite Party No.3(three) for the trouble along with the vehicle. The Opposite Party No.3(three) advised to replace the clutch plate as there was engine oil leakage from the same. Accordingly, the Complainant replaced the clutch plate before the Opposite Party No.3(three), on payment of Rs.1,800/-(Rupees one thousand eight hundred)only towards the cost of the part. After replacement of clutch plate, the vehicle was brought by the Complainant and there after the engine of the said vehicle was ceased when the said vehicle was running for about 2(two) to 3(three) kilometers after taking from the Opposite Party No.3(three). So the Complainant intimated the Opposite Party No.3(three) who advised to bring the said vehicle and accordingly, the mechanics of Opposite Party No.3(three) came and took the vehicle to the servicing center.
That the vehicle remained in custody of Opposite Party No.3(three) but the vehicle could not be repaired. The Complainant ran to the Opposite Party No.3(three) from time to time. Again on Dt.05/05/2010, when the Complainant went to the Opposite Party No.3(three), he came back with disappointed, as the vehicle was not repaired. The further allegation of the Complainant is that since the vehicle has manufacturing defect, therefore the vehicle without being repaired for a long period detained with the Opposite Party without any reason, which he brought to the Notice of the Opposite Party No.3(three) but to no avail, since there was inherent defects in it.
Being aggrieved, the Complainant issued Pleader's Notice by Registered post to the Opposite Party No.1(one), 2(two) and 3(three) on Dt.10/05/2010 alleging the vehicle has manufacturing defect and to replace the engine of the vehicle in question with a new one free from defect. The Opposite Parties have also received the said notices. To that notice, the Opposite Party No.2(two) gave the replay on Dt.14/05/2010, admitting the fact that the vehicle is with the Opposite Party No.3(three) since Dt.29/03/2010.
In spite of several request for about three months, the Opposite Party did not take any steps for replacement of the engine. Therefore the Complainant is constrained to file this case against the Opposite Parties on Dt.09/07/2010, praying to direct the Opposite Party No.1(one), 2(two) and 3(three) to replace the engine with a new one or to refund the cost of the vehicle of Rs.2,50,500/-(Rupees two lakh fifty thousand five hundred)only along with compensation of Rs.20,000/-(Rupees twenty thousand)only towards physical pain and mental agony, Rs.30,000/-(Rupees thirty thousand)only of earning and Rs.25,200/-(Rupees twenty five thousand two hundred)only towards loss suffered due to failure to pay the installment amount as the Opposite Party could not able to repair the vehicle for about three months till the date of filing of this case.
(3) In support of his case, the Complainant has filed documents relating to the copies of servicing made by Opposite Party No.3(three) starting from Dt.21/11/2008 to Dt.10/03/2010, regarding service of Pleader Notice and retail invoice by Opposite Party No.2(two) infavour of the Complainant on Dt.31/10/2008 bearing SL. No. DJM/86 showing purchase of vehicle.
(4) Notice were duly served on the Opposite Parties No.1(one) to 4(four). They appeared and submitted their written version separately denying all material allegations.
(5) The Opposite Party No.1(one) submits that, he being the manufacturer of the APE Truck, his liability is limited and extends to its warranty obligation alone and since the vehicle was used for long time continuously that is for more than one year and five months, as such, there is no manufacturing defect and deficiency in the services rendered to the vehicle. The Opposite Party No.1(one) also submitted in his written statement that, since the Complainant has not filed any opinion of the expert. So the relief claimed by the Complainant is improper, incorrect and speculative in nature. The Opposite Party No.1(one) also contended that, the relationship between him and Opposite Party No.2(two) is on a principal to principal basis and that since no case has been made out against this Opposite Party No.1(one), the case should be dismissed with cost denying all allegations also as false.
(6) Similarly, the Opposite Party No.2(two) and 3(three) stated in their joint written statement, that the vehicle was brought for service on Dt.13/03/2010. Again on Dt.29/03/2010 the Complainant brought the vehicle to rectify some problem related to mobile leakage and less pick up of the vehicle and the vehicle was ready on Dt.03/04/2010. The vehicle was in the warranty period and the work was done as per the warranty norms but the driver did not pay the charges towards the parts with the plea that is was within the warranty period. Further more, they also requested to the Complainant through his Advocte to take delivery of the vehicle after settlement of the bill. The Opposite Party No.2(two) and 3(three) also submitted that since the vehicle was purchased and use for commercial purpose, it is not maintainable and the complaint petition is liable to be rejected.
In support of their cases the Opposite Party No.2(two) and 3(three) filed several Judgment of Hon'ble National Commissions, to substantiate their plea reported in 2012 NCJ 721 (NC) M/s JCB India Ltd. -Vrs- Mr. Mallapa Sangappa Martri, where it has been held that “since the vehicle was purchased for commercial purpose, so the complaint with regard to defect in machine within warranty period is not maintainable as the Complainant is not a consumer under the Consumer Protection Act”. Opposite Parties relied on several citations where in the main points of contention were- that the present Complainant is not a consumer relying the Ist citation 2012 NCJ 721 (NC) as the purchase for the commercial purpose. At this point when the question is about whether a consumption has been made for commercial purpose has to be carefully considered and the difference in commercial activity for profit and commercial activity to earn livelihood has to be established. The citation talks about a JCB Machine which is a high end product where as the impugned vehicle here was on APE Truck just to transport some goods locally to earn the livelihood hence the citation can not be applied in several and contention of the Opposite Parties is not accepted.
The other decisions speaks about the importance of expert opinion in deciding a case of machinery defects. Here in this case the vehicle was purchased on dt.31/10/2008 and repairing started soon after the purchase which continued for long period. Each time the vehicle is produced before the authorized dealer for repair and the people and machanies at the service center are the experts in their field so it can be presumed that when they when they have detected the regular problems at the time of each repair, their opinion courts, hence the need of special expert opinion is not warranted.
The Opposite Party No.2(two) and No.3(three) also filed certain documents i.e. the job cards regarding the servicing of the vehicle after the final argument was ever and when the case was posted for Order.
(7) The Opposite Party No.4(four) also stated in his written version, that he is no way responsible for exemption of installment dues as he is simply financed the loan amount as prayed by the Complainant and therefore waiving of installments for the period does not arise.
(8) Perused the complaint petition, written statement, written arguments and documents submitted by the Parties, from which it is clear that, the Complainant had purchased the vehicle to earn his livelihood by way of self employment and the vehicle was running smoothly till Dt.29/03/2010. The Opposite Party No.3(three) also in his counter has admitted that the vehicle was produced before him on Dt.29/03/2010 for major repair and it was within the warranty period. He also admitted that the vehicle was lying with him till the case was filed. Since the warranty period was till Dt.30/04/2010, the Opposite Party No.1(one) to 3(three) are liable to repair the vehicle. The Complainant has paid the cost of the vehicle on Dt.31/08/2010 and look delivery of the vehicle for his use. As such the Complainant is the consumer before the Opposite Party No.1(one) to 4(four) and as such the present case is maintainable.
(9) That, the Opposite Parties alleged that, the vehicle was used for commercial purpose and as such the Complainant is not entitled to get the benefit during warranty period. The Complainant being the consumer was using the vehicle for his own self employment for maintenance of his livelihood. As such, the same can not be treated as commercial.
On this point we have gone through the Decisions (filed by the Complaisant) of Hon'ble National Commission reported in 2006 (1)CPR 4(NC)- M/s Pearlite Liners Ltd, Vrs M/s Thermo Jarrell Ash Corporation and another from which it is very clear that “Even though on equipment is purchased for a commercial purpose, if there was a defect or deficiency in service during warranty period, buyer would be deemed to be a consumer.”
As per another decision of Hon'ble National Commission cited in 2006 (1) CPR 164 (NC) Dr. Vijai Prakash Goyal Vrs The Network Limited , it also very clear that the “Purchaser of a machine for commercial purpose is also a consumer in case defect in machine develops during the warranty period.”.
Since the Complainant had purchased the vehicle for maintenance of his livelihood and in case the vehicle remain unused the Complainant will definitely sustain irreparable loss and he will not able to clear his lone, he also suffered from mental agony and the purpose of pursing the vehicle was frustrated because of continuous repairing work at shunt intervals and that two regularly losing earning using the vehicle .
As such considering the above circumstances the Opposite Party No.1(one) to No.3(three) are liable jointly and severally to compensate the Complainant as gross negligence and deficiency in service lies with the Opposite Parties.
Hence ordered.
- O R D E R -
(1) The Opposite Party No.1(one), No.2(two) and No.3(three)are jointly and severally liable to the deficiency of service and are directed to replace the defective engine with a new one and deliver the vehicle fitted with a new engine at the point where they received the said vehicle along with compensation of Rs.3,000/-(Rupees three thousand)only towards mental agony and harassment and litigation expenses within on mionth of this Order.
(2) Opposite Party No.4(four) however being the financer is exonerated from any charges and allegations, but is free to realize the outstanding financed amount from the Complainant in a lump sum on as per rule or can make any settlement with the Complainant otherwise should realize the installments after one month of delivery of the vehicle to the Complainant as he was not earning from the vehicle at present.
The case is allowed and disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree,
(Miss Rajlaxmi Pattnayak) ( Smt. Anjali Behera)
P r e s i d e n t. M e m b e r.
