Orissa

Rayagada

CC/164/2016

Sri K.Venketa Ramana - Complainant(s)

Versus

The Manager, Tata Motors Limited - Opp.Party(s)

Self

30 Jan 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 164/ 2016.                                        Date.   30     .1. 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                   President

Sri GadadharaSahu, .                               Member.

Smt.  Padmalaya  Mishra,                          Member

Sri   K. Venketa  Ramana,  S/O: K.A.Raju, Po: Kolnara,    Dist:Rayagada,State:  Odisha.                                                                                                                               …….Complainant

Vrs.

1.The Manager, Sales, M/S. Tata MotorsLtd., Telco Colony, Ist. Floor, Jamshedpur, Jharkhand-831 004.

2. Sri  L.N.Motors Pvt. Ltd.,  Kadambariguda, J.K.Road, Dist: Rayagada.       

3. The  Manager, Indusind  bank, Bhubaneswar, Dist: Khurda.                      .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Self.

For the O.P No.1   :- Sri Uma Kanta Mishra, Advocate, Rayagada.

For the O.P. No.2:- Sri  Pratap Chandra Dash, Advocate, Rayagada.

For the O.P. No.3:- Exparte.

                                J u d g e m e n t.

        The  present dispute emerges out of the complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for non replacement of Tipper OD-18-B-4789. The brief facts of the case are summarized here under.

 

          The complainant had  purchased on Tipper  from the   O.Ps on Dt. 16.10.2015 bearing Regd. No. OD-18-B-4789. The vehicle  is   having a service warranty  issued by the  company for two years.  But its fuel filter and  fuel pump has gone out of order for which it was produced before the O.P. No.2.  Due to delay in getting  the service within a span of three to four months  of its purchase  (detained   the vehicles for days together to give the service even on payment of consideration for which  his income is reduced and he has to pay the  E.M.I regularly to keep  his good will of the Bank.  Each month the complainant has to detain the vehicle  with the service provider minimum 10 days to get the service and thus looking  his daily  income has claimed of Rs. 10,45,000/- from the O.Ps since   they knew the fact that the said vehicle is having  the defect of fuel pump   etc. at  the time of sale.  Inspite of  repeated  contact to the O.Ps for replacement of the above vehicle due to manufacturing  defect  the O.Ps are paid deaf ear. Hence this case.  The complainant prays the forum direct the O.Ps  to   replace the above vehicle with a new one inter alia pay   Rs.10,45,000/- towards compensation and such other relief as the hon’ble forum deems fit and proper for the best interest of justice.

 

          On being noticed the O.P. No. 1 filed written version through  their learned counsel and  refuting the allegation  made  in the complaint petition.  The relationship exists between the O.P Nos 1 & 2 is ‘Principal to principal basis, the answering O.P can not be held  liable for any independent act and/ or omission, committed by the other O.P.  Thus for the acts of the one O.P., another  O.P. could not be held  liable. The complainant is making false allegations against the O.P. No.1 with a malafide intention as  well as to gain benefits  out of this complaint petition.. The O.P taking other grounds in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986.. The O. P No.1  prays the forum to dismiss the case against  them  to meet the ends of justice.

          The O.P. No.2  filed  written version through their learned counsel and contended that  the averments made in the  petition are  all false, and O.P  deny   each and every allegation made in the petition. The O.P taking other grounds in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986.. The O. P No.2  prays the forum to dismiss the case against  them  to meet the ends of justice.

In the instant case the copy of the complaint was referred to the O.P No3  directing to given  written version of the case.  After service of notice the O.P No. 3  failed to avail of the opportunity for filing  of the version of the case.  On number of dates they failed  to appear  on the version dates fixed. As the version of the case was not filed by the O.Ps   within the time frame given, we have no alternative  but to resort to Section -13(2)(b)(ii) of the C.P. Act, 1986  and  O.Ps were   set  exparte.

 

          The O.Ps appeared and filed their written version.  Heard arguments from the  learned counsel for  the  complainant  and O.Ps.    Perused the record, documents, written version  filed by the parties. 

The  parties     advanced arguments vehemently touching the points both on the facts  as well as on  law.

         FINDINGS.

            On perusal of the record it is revealed that there is no dispute the complainant  had purchased  Tipper bearing Regd.  No. OD-18-B-4789  on Dt. 16.10.2015 from the O.Ps.  Further  there is no disputes the above  vehicle has a 18 months warranty.  Again there is no dispute  that the O.Ps have not given service  to the complainant.

The main disputes  of the complainant  was that  due to  continues   repair  of  fuel filter and  fuel pump  of the above  vehicle  he wants  replacement  with a new one and  deprived of income  and wants  compensation  Rs.10,45,000/-

On  perusal of the written version  filed  by the  O.Ps  it is observed  that  the  O.Ps vehemently   contended that  the complainant is not a consumer with in the meaning  of the term ‘Consumer’ as defined under Section 2(1)(d) of the  C.P. Act, 1986.  The O.Ps further contended  that the vehicle in question is a commercial vehicle and has been used for commercial activities in order to  generate profit  and has covered more than 22,976 Kms. With in  12^th. July, 2016 i.e. with in a mere span of covered   approximate 8 months  which shows the extensive usage of  the vehicle in question itself  and establishes  that this is not normal personal   usage.  Thus it would be evident that the said vehicle in question has been extensively used by the   complainant for commercial activities  and as such the complainant can not claim the status  of a ‘Consumer’ under  the C.P. Act, 1986 and is not entitled for any relief from this Hon’ble forum.  Again  the O.Ps  in their written version averred  that   the  complainant  has  a numbers of vehicles whose numbers are  mentioned   (1) OD-18-A-5789  (2) OD-18-A-1789  (3) OD-18-9789 (4) OD-18-B-4789 (5) OD-18-A-5686 and  OR-19-G-0684. The O.Ps taking other grounds in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986.  The  O.Ps  also cited   decision  of the apex court  in support of their case.

 Prior  to delve in to the merit  of the case on outset  we have to  consider whether the complaint petition  is maintainable   under C.P. Act ?  While answering  the issue  we would like to refer the citation. It is held and reported in   1995 (2) CPJ page  No.1 in the case of Laxmi Engineering  Works  Vrs.  PSG Industries Institute    where in the  Hon’ble Supreme Court observed that  “if any  has obtained goods for commercial purpose  with a view to using   the  said goods for carrying on any  activity of profit, other than   exclusively for  self employment, such person is excluded from the purview of the  C.P. Act.” On this   ground  alone, the instant complaint is not maintainable and ought to be summarily  rejected.

Further   It is held and  reported  in C.P.R-2011(4)  page  No.457  in the case  of  Shri J.K.Aggarwal  l& Anr.  Vrs.  M/S Three C Universal Developers (P) Ltd  where in the  Hon’ble    National Commission  observed “Commercial users can not invoke  jurisdiction of Consumer forum for redressal of their grievance” .

The O.P. No.  1  in their written version  para No. 29  contended that  the complainant has not served any demand notice on the  O.P.  before filing the present complaint  which is mandatory  in  C.P. Act, 1986.  Actually  the complainant has not made correspondence  to the O.P. No.1  before filing of the C.C. case before the forum and not filed  copy of the same  for perusal  of the forum.

                In the present case in hand as per the complainant’s own averments  and  allegations, it is manifest that  the complainant has availed the services of   the O.Ps  purely  for commercial purpose  and,   therefore, they do not fall  within the definition of consumer, therefore  not entitled  to invoke the  jurisdiction  of this  forum  for the redressal of their  grievance.  It appears to us that present complaint  is nothing but an attempt  to mis use the process of this forum  with the sole object of saving  court fee payable in a civil suit.    

 

This forum agree with the views taken by the O.P. in their written version  that the complainant is not a consumer and the complaint filed by it is not maintainable and is commercial nature. We  do not  think  proper to go  into merit of this case.

So  to meet the  ends of justice    the following order is passed.

                                                            ORDER.

                For the above stated  reasons , we dismiss the present  complaint as not maintainable before this forum, however, with liberty  to the complainant to pursue  their remedy  before the competent  court having  jurisdiction in the matter.

Dictated and corrected by me

Pronounced on this         30   ^th.   Day of   January,  2018.

 

                Member.                                             Member.                                                             President