By Smt. Beena. M, Member:

This is a complaint filed under Section 12 of Consumer Protection Act 1986.

            2. Complainant’s case in brief is as follows:-  The case of the complainant is that on 29-08-2017 he had purchased a TATA ACE Zip/Magic IRIS Diesel Vehicle from Opposite Party No.2 and it was delivered through Opposite Party No.1 which was manufactured by Opposite Party No.3. At the time of purchase the Opposite parties assured 2 years Warranty from the date of purchase or 72,000 KMS of its running, whichever occurring earlier. After delivery the complainant registered the vehicle at Sub RTO, Sulthan Bathery by registration No. KL-73-B-2452.  The complainant has been running the vehicle as a taxi and using the income for his livelihood.  The complainant further submitted that the next day of purchase of the vehicle, he noticed that there was a leakage in the diesel from the diesel tank due to the hole on the upper portion of the diesel tank. Immediately the complainant approached Opposite Party No.1 for solving the problem and Opposite Party No.1 realized  that the complaint is genuine and he assured that the tank will replace within 7 days, ie on or before 10-09-2017. Afterwards the complainant approached the Opposite Party No.1 on the stipulated date but he told that the new tank is not reached from the company and instructed the complainant to wait for further  week. Meanwhile the complainant had intimated the facts to the Opposite Parties No 2 and 3 also.  But the opposite parties are never acted upon and not replaced the tank and had not rectified the defects.  The act of opposite parties caused much loss and inconvenience to the complainant and the same are negligent service and unfair trade practice.  The opposite parties are legally bound to replace the diesel tank of the vehicle free of cost and the complainant seeking compensation of Rs.1,00,000/- (One lakh) and cost of the case.

            3. On receiving notice , the third opposite party appeared before the forum and submitted detailed version. The first and second opposite parties neither appeared nor filed any version.  Hence  the Forum declared them as ex parte.

            4. The Opposite Party No.3 submitted preliminary objections regarding the maintainability of the complaint.    The main contention of the 3^rd opposite party is that the complaint is not maintainable and the complainant is not a consumer within the meaning of the term ‘Consumer’ as defined under Sec.2(1)(d) of the Consumer protection Act, 1986. The petition will  disclose that the complainant has no case that there has been any deficiency in service on the part of the 3^rd opposite party. The third opposite party  has unnecessarily been made a party to the proceedings. The complainant having taken his vehicle to the work shop of the first opposite party for attending to the compliant of leak from the diesel tank, the service personnel in the work shop had after inspecting the vehicle informed that the diesel tank would have to be replaced and that as the same would have to be procured from  opposite party No.3, it would take some time. It is understood that the first opposite party had on the basis if the approval obtained from the complainant effected a temporary repair to the diesel tank to arrest the leak so as to enable him to ply the vehicle till the new tank is received by them. It is further submitted that based on the order placed by the first opposite party this opposite party had dispatched   a   new   diesel   tank  to them  so as to enable fitting it to the vehicle of the complainant.  The first opposite party on receipt of the new tank had after informing the complainant of the same replaced the tank with the new tank on the vehicle. The complainant having thereupon taken delivery of his vehicle after expressing satisfaction over the work done he cannot be heard to say there was deficiency in service as presently alleged. This opposite party is not aware of any loss suffered by the complainant and hence the complainant is put to strict proof of the same. There has been no deficiency in service on the part of this opposite party as alleged. The complainant is not entitled either in law or on facts to the relief sought for in the complaint and seeking dismissal of the complaint.

            5. On perusal of complaint, version of the 3^rd opposite party and the documents produced the Forum raised the following points for consideration:-

   1. Whether the complaint is maintainable?

   2.  Whether there is any deficiency in service & negligence on the part of

          opposite parties?

              3.  Whether the  complainant is entitled to get the relief as prayed for?

           6.  From the side of the complainant he has appeared before the forum and filed detailed proof affidavit in which he has affirmed and explained all the averments stated in the complaint. He also produced one document which is  marked as Exhibits A-1.  Witness examined on the side of the 3^rd opposite party as OPW-1 and no documents marked.   Ext. A1 is the bill issued by the opposite party  No.1 at the time of replacement of diesel tank.

7. Point No. 1 to 3 :-   For the sake of convenience and briefly the points 1 to 3 are considered together.

8. As per the Consumer Protection Act the person who buy a goods for commercial purposes and such purchase satisfy that the goods are used by the buyer himself exclusively for the purpose of earning his livelihood by means of self-employment, then such use would not be termed as use for commercial purposes under the Act, and the uses is recognized as a consumer.  Eventhough the 3^rd opposite party  challenged the maintainability of the complaint  through his version on what ground he challenging the maintainability not mentioned. So there is no

need to consider the maintainability of the complaint.   At the time of evidence only the complainant submitted that the defective tank was replaced by the 1^st opposite party while the case is pending.  So, there is no question of replacement of the defective diesel tank to be considered here and the only question remaining is whether any deficiency in service from the opposite parties Ext. A1 shows  that the opposite party replaced the diesel tank  approximately within one month . It is thus a fact that the third opposite party admit the delay for replacing the diesel tank. The forum is of the view that since several vehicles of this multinational vehicle company ply on the road. Since several vehicles may need urgent repair, there are several possibility that they may approach the authorized service centres.  Hence it is the responsibility of the opposite party to maintain certain stocks of all spare parts. Here One month’s delay occurred to replace  the diesel tank  so this forum finds that there is deficiency in service on the part of the opposite party.   Hence all points are found against the opposite party. 

             In the result, the complaint    is   allowed in part.    The opposite parties is directed to pay Rs. 5,000/- (Rupees Five thousand) as compensation and Rs.3,000/-(Rupees Three thousand) as cost of the proceedings.

            Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the  7^th  day of January 2020.

Date of filing :24.11.2017.

                                                                                                PRESIDENT:  Sd/-

                                                                                                MEMBER:     Sd/-

APPENDIX.

Witness for the Complainant.:-

PW1.              Sajeevan.                              Complainant.                                       

Witness for the Opposite Parties:-

OPW1.          Subin. P.                               Customer Support Manager.

Exhibits for the Complainant:    

A1.                  Copy of Tax Invoice.          dt:27.12.2017.

Exhibits for the Opposite Parties:-

Nil.