Date of Filing             : 05-05-2007

                                                            Date of Order            : 14-08-2009

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                                C.C.No.34/07

                                    Dated this, the 14th day of August 2009.

PRESENT

SRI.K.T.SIDHIQ                                            : PRESIDENT

SMT.P.RAMADEVI                                                : MEMBER

SMT.P.P.SHYMALADEVI                          : MEMBER

Kunhimoideenkutty,

S/o.Muhammed ali Haji, Sirayin Kattil House,                                    } Complainant

Vadakkepuram, Po.Padne, Hosdurg Taluk,

Kasaragod.

(Adv. K. Janardhanan, Hosdurg)

1. The Manager,

     Sakthi Automobile Division of ABT Industries,                   } Opposite parties

     Rahman Building, Thana Road, Kannur.

2. Mr.Preman, Sales Officer, Shakthi Automobile Division,

    ABT Industries Ltd, Rahman Building, Thana Road,

    Kannur.

3. Mr. Santhosh Kumar, Sales Executive,

    Sakthi Automobile, Meenchanda, Kozhikode.

4. Division Manager, Sakthi Automobile,

    Meenchanda, Kozhikode.

5. The General Manager, TATA Motors Pvt.Ltd,Company,

    Poona, Maharashtra.

(Adv. P.V.Jayarajan, Kasaragod)

                                                                        O R D E R

 SMT.P.RAMADEVI, MEMBER

            That Mr. Kunhimoideen kutty filed this complaint alleging deficiency in service and unfair trade practice against opposite parties.

            The facts of the complaint in brief are as follows:

2.         That the complainant had booked a TATA 407/31 6T tipper and Chassis No.35177GUZ816533, Engine No.497SPTC3GUZ 860197 model 2006.  The opposite party No.3 delivered the vehicle on 29-7-2006.  The complainant had booked 2006 model vehicle. When the vehicle was taken for registration the complainant came to know that the model of the vehicle is 2005 model.  According to the complainant the opposite parties cheated the complainant and committed unfair trade practice.  Hence the complaint is filed for necessary reliefs.

3.         The opposite parties received the notice sent by the Forum and filed their vakalath and version through their counsel Mr. P.V.Jayarajan.

4.         The opposite party filed version stating the following contentions.

            First of all the opposite parties raised an issue regarding maintainability.  According to the opposite parties the complaint is not maintainable since the complainant is a businessmen and he will not come under the perview of the  consumer as denied the Consumer Protection Act.  Opposite parties contended that the complainant is a businessmen  and the tipper lorry is purchased for commercial purpose. Hence he is not a consumer.

5.         The opposite parties are admitting the purchase of tipper lorry by the complainant from the opposite parties. The opposite parties further contended that the opposite parties were not offered 2006 model vehicle.  According to the opposite parties the complainant opted to purchase 2005 model tipper lorry which will cost less than the prevailing model.  The opposite party offered Rs.40,000/- reduction from invoiced amount and without any complaint the complainant took delivery of the vehicle from opposite party. The opposite parties further submits that along with the invoice, a sale certificate was also issued to the complainant which clearly shows the year of manufacturer  as July 2005.  According to the opposite parties there is no unfair trade practice on their part.  Hence the complaint is liable to be dismissed.

6.         After considering the facts of the complaint as well as the written version filed by the opposite parties the following issues raised for consideration:

1)     Whether the complaint is maintainable?

2)     Is there any unfair trade practice on the part of the opposite parties?

3)     If so what is the relief as to costs and compensation?

7.           The evidence in this case consists of the evidence of PW1 the complainant and Exts A1 to A3 and the evidence of 3^rd opposite party as  DW1 and Exts B1 to B6

8.         The opposite parties had taken a specific contention that the complaint is not maintainable in law since the complainant is a businessman and the subject matter involved in the complaint is purchased for commercial purpose. According to the opposite parties the complainant is not a consumer as contemplated in the Consumer Protection Act since the tipper lorry is purchased by the complainant for his business purpose.

9.         Here it is true that the complainant is a businessman. But there is no evidence before the Forum that he is using the vehicle for his business purpose.  It is not come in evidence that what business the complainant is doing.  Moreover the commercial purpose and commercial activities are different.

10.       In Harsoha Motors V. National Insurance Co.Ltd I(2005)CPJ 27(NC) the Hon’ble National Commission distinguished commercial purpose and commercial activities.   In case of Commercial purpose goods purchased or services hired should be used in an activity directly intended to generate profit.  Whereas goods purchased or services hired for any activity which is directly not intended to generate profit, then it would not be for commercial purpose.

11.       In this matter there is no case to the opposite parties that the complainant is letting out his tipper lorry for hire, and thereby he is generating the profit.  The opposite parties counsel put a suggestion to the complainant that the complainant is using the tipper lorry for his commercial purpose and the same was denied by the complainant.   Except the above stated suggestion there is no other attempt is made prove the contentions of opposite parties regarding the purpose and use of vehicle.  Considering the facts stated above it is very clear that the tipper lorry is not used for commercial purpose. Even if it is  used for commercial activities the complainant is a consumer.  Here the complainant is a consumer as per the Consumer Protection Act and the complaint is maintainable.  The Ist issue is answered accordingly.

            The second issue is regarding merits of the case.  Whether there is any unfair trade practice on the part of the opposite parties.

12.       The specific case of the complainant is that he booked 2006 model vehicle and the opposite party delivered him a 2005 model.  The complainant came to know the change of model of vehicle only at the time of registration.  The opposite parties in their written version admitted the delivery of old model i.e. 2005 model.  But the opposite parties contention is that the complainant has been given a deduction of Rs.40,000/- for opting the purchase of 2005 model vehicle.  According to the opposite parties the complainant himself opted 2005 model.  Eventhough Ext.B6 shows a discount of Rs.40,000/- was allowed to the complainant the document will not show the reason why such discount is allowed. It will not reveal that the discount is given for opting 2005 model vehicle.  During  cross examination PW1 deposed before the Forum that  2006 model vehicle  also the company giving Rs.40,000/- as discount.  There is no purchase invoice produced before the Forum.

13.       After considering the above facts there is no evidence to show that the complainant himself opted 2005 model.  If he opted 2005 model what prompted him to file this complaint?  Moreover, the opposite parties were not produced any document to show that the company is not giving  Rs.40,000/- discount in 2006 model  vehicles. Hence we are of the opinion that the opposite parties delivered 2005 model vehicle instead of 2006 model at their own discretion and there is unfair trade practice on the part of the opposite parties.

            Hence the complaint is allowed and the opposite parties 1 to 4 are jointly and severally directed to pay Rs.50,000/- (Rupees fifty thousand only) as compensation towards the mental agony and sufferings caused to the complainant with Rs.2000/- as cost of the proceedings.  Time for compliance is 30 days from the date of complaint.  If the opposite parties failed to comply with the order within the stipulated period then   the amount Rs.50,000/- will  carry interest @ 6% per annum from the date of complaint till payment. 

MEMBER                                           MEMBER                                           PRESIDENT

Exts.

A1. photocopy of sale certificate

A2.Photocopy of Registration Certificate.

A3.29-09-06 copy of lawyer notice.

B1.18-11-2006 reply notice.

B2. Photocopy of Sale certificate.

B3.  Copy ofTax invoice

B4.  Copy of Debit note.

B5. Discount form

B6. copy of ledger account.1-4-06 to 31-3-07.

PW1. Kunhimoideenkutty.

DW1. Santhoshkumar.P.

MEMBER                                           MEMBER                                           PRESIDENT

PJ/