By Sri. Mohamed Ismayil C.V., Member.
The averments in the complaint are in brief:-
1. The complainant is the proprietor of Mayoori Furniture, Electronics and Home Appliances situated at Perinthalmanna, Malappuram district and engaged in business and has branches in various towns of Kerala. The complainant purchased a Mahindra Alpha Plus 3 Wheeler Goods vehicle bearing registration No.53 S 6846 with one year service warranty. The purchase was made from the second opposite party on 22/10/2021 and he had remitted Rs.2,95,431/- as price of the vehicle . According to the complainant he had purchased the said vehicle for the use of delivery of products to customers from Perinthalmanna showroom. The first opposite party is the authorized service center and the third opposite party is the manufacturer of the vehicle. After availing first service on 16/11/2021 oil defects was found. Even though vehicle underwent repair work by the first opposite party but defect remained unsolved. Later gearbox of the vehicle also became defective. On the basis of direction given by the first opposite party the vehicle was taken to service centre. But the first opposite party failed to repair the defect of gear box. On 14/08/2022 engine of the vehicle had automatically stopped on the road. The vehicle had taken to the service centre but the first opposite party again failed to repair it. It is averred that the vehicle continued to show its inherent deflects and proper use of the vehicle became impractical. It is alleged that the first opposite party had made assurance of defect free use of vehicle on every occasion while vehicle was delivering after repair work. But all promises were shattered and even caused financial burden to the complainant. The vehicle was oftenly struck on the road with engine off during delivery of the products to the customers. Due to non-delivery of products on time customers cancelled the orders and thereby suffered a business loss of over Rs.3,25,000/-. It is alleged that the vehicle had suffered defects to gear box, oil leakage and halted oftenly on the road due to defects of engine. The complainant alleged manufacturing defect to the vehicle as the opposite parties were failed to rectify all defects. The complainant alleged unfair trade practice and deficiency in service against the opposite parties as they sold out a defective product to the complainant. The act of the opposite parties caused mental agony, stress and trauma. The complainant also suffered financial loss. Hence the opposite parties are jointly and severally liable to compensate the complainant .The complainant sought for reliefs by praying for a direction to the first opposite party to pay Rs. 3,00,000/- as compensation for causing mental stress, strain and agony and also financial loss due to improper service. The complainant prayed for direction to the second opposite party to pay an amount of Rs. 4,00,000/- as compensation and also to refund Rs. 2,95,431/- for committing a fraudulent act in the delivery of defective vehicle in collusion with the third opposite party . The complainant also prayed for direction to the third opposite party to pay an amount of Rs. 5,00,000/- as compensation for committing fraudulent act of manufacturing of defective vehicle. The complainant also claimed Rs.25,000/- as cost of the proceedings.
2. The Commission issued notices to the opposite parties. The first opposite party received notice on 29/11/2022 as per acknowledgment card but failed to appear and submit written version, hence the Commission treated the first opposite party as exparte. The second and third opposite parties submitted written versions separately and contested the matter.
3. The second opposite party contended that complaint is not maintainable and same cannot be entertained by this Commission as it lack jurisdiction. The second opposite party admitted that they had sold out the vehicle to the complainant. According to the second opposite party it was known to them that the first opposite party had properly repaired all defects found on it. There is no manufacturing defect to the vehicle and the second opposite party is not liable to pay any amount as prayed in the complaint. There is no deficiency in service or unfair trade practice from their side.
4. The third opposite party also contended that the complaint is not maintainable before this Commission and complainant is not a consumer as defined in the Consumer Protection Act, 2019.The third opposite party was not directly involved in the booking process adopted by the second opposite party. The transaction between the second and third opposite parties were on principal to principal basis .Hence no privity of contract existed between the complainant and the opposite party. The obligations of the opposite party is on the basis of terms and conditions of warranty. There is misjoinder of party in the complaint. It is contended that the complainant admitted that the vehicle was purchased for the business purpose, hence it is clear that the subject vehicle was purchased for commercial activities of the complainant. Hence the complainant is not a consumer. It is contended that the date of sale as per records is 03/09/2021. There was no complaint after first free service and no issue was reported to the vehicle until it covered 28,000 kilometres. There is no manufacturing defect to the vehicle and the complainant is not entitled for any repayment or refund of price of the vehicle. The complainant has suppressed material facts before the Commission. There was no regular service to the vehicle except periodic services being done at 28801 kilometres on 04/11/2022 gear shifter assembly component had been replaced under warranty and at 30887 kilometres on 06/12/2022 overhauling of gear box had been done under warranty. There was no delay on the part of the dealer in conducting repairs of the vehicle. The third opposite party also denied alleged financial loss sustained to the complainant. No report was made with regard to engine complaint, so far and there was no engine related work carried out to the vehicle. The third opposite party denied all allegations pertaining to defects of the vehicle especially related to the struck off the vehicle on the road with engine off during delivery of products. The third opposite party also denied allegations of unfair trade practice as well as deficiency in service. As per vehicle history no major complaints observed on the vehicle. The complainant is not entitled for any relief as prayed in the complaint. On the basis of above mentioned contentions the third opposite party stood for dismissal of the complaint.
5. The complainant and contested opposite parties submitted proof affidavits in lieu of evidence. The documents produced by the complainant are marked as Ext.A1 to A3. Ext.A1 document is the copy of invoice dated 22/10/2021 issued by second opposite party to the complainant to show payment of Rs.2,95,432/-as cost of vehicle. Ext. A2 document is the copy of service coupon of the vehicle dated 16/11/2022. Ext. A3 document is the copy of legal notice along with postal receipt and acknowledgment card issued to the first opposite party. The document produced by the third opposite party is marked as Ext.B1 document. Ext.B1 document is the copy of relevant portion of warranty card. The second opposite party did not produce any document. The complainant submitted notes of argument.
6. The complainant has been submitted and interim application numbered as IA 200/2023 to appoint an Expert Commissioner to inspect the defects of the vehicle. By considering facts and circumstances of the case and for just and proper adjudication of the matter the Commission allowed application and Mr. Abdul Kareem Chalil, AMVI, of Sub RTO, Perinthalmanna has appointed as Expert Commissioner. The Expert Commissioner inspected the vehicle and submitted a report and the same is marked as Ext. C1 document.
7. Heard the parties and gone through records on the file and considered following points for the adjudication of the consumer dispute.
- Whether the complainant comes under the definition of consumer as defined in the Consumer Protection Act, 2019?
- If complaint is maintainable whether the opposite parties are answerable for allegation of deficiency in service or unfair trade practice?
- Relief and cost?
Point No.(i):-
8. The grievance of the complainant is that the vehicle purchased as per Ext. A1 document suffered many defects during the period of warranty and opposite parties are failed to rectify those defects even though the complainant had repeatedly taken the vehicle to authorized service centre, the first opposite party. It is argued that after first service different parts of the vehicle shown defects especially gear box, engine and even found oil leakage. But the opposite parties failed to rectify all those defects which resulted mental agony, stress and financial loss to the complainant.
9. On the other hand, the contested opposite parties vehemently opposed argument of the complainant. It is argued that there was no manufacturing defect to the vehicle as alleged by the complainant and complainant is not a consumer as defined in the Consumer Protection Act, 2019. According to the opposite parties the vehicle was used for business of the complainant and same was admitted by the complainant, hence the complainant is not entitled for any relief from this Commission.
10. Firstly, the Commission examined argument of the opposite parties with regard to maintainability of the complaint. As per section 2(7) consumer means any person who 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. It is admitted by the complainant that the vehicle was purchased for use of delivery of products to consumers from Perinthalmanna showroom. It is also admitted in the complaint that the complainant is doing business of furniture, electronics and home appliances in various towns of Kerala. In addition, Ext. A3 series document would also real that use of vehicle was purely intended for carrying out commercial activities of the complainant. It is averred in the complaint that the vehicle was struck on the road with engine off during delivery of products, so the complainant failed to deliver product to the customers and thereby suffered a loss of over Rs.3,25,000/-. The averments contained in the complaint itself show that the complainant is doing business of furniture, electronics and home appliances in large scale. The Commission find that use of the vehicle is directing linked with commercial activities of the complainant as delivery of products to the customer are inevitable part of business of the complainant. No evidence is brought before the Commission by the complainant that the vehicle was purchased for his personal use or exclusively for the purpose of earning livelihood by way of self-employment. So the Commission find that the complainant is not a consumer. Hence there is no need to discuss other issues. On the basis of deliberations made above the complaint is dismissed.
Dated this 30th day of October, 2024.
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
MOHAMED ISMAYIL.C.V, MEMBER
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A3
Ext.A1: Copy of invoice dated 22/10/2021 issued by second opposite party to the
complainant to show payment of Rs.2,95,432/- as cost of vehicle .
Ext.A2: Copy of service coupon of the vehicle dated 16/11/2022.
Ext A3: Copy of legal notice along with postal receipt and Acknowledgment card
issued to the first opposite party.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1
Ext.B1: Copy of relevant portion of warranty card. The second opposite party did not
produce any document
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
MOHAMED ISMAYIL.C.V, MEMBER
