Tripura

West Tripura

CC/14/41

Sri Sukumal Das - Complainant(s)

Versus

The Managing Director Hindustan Motors Ltd. And Others. - Opp.Party(s)

Smt. D. Bhattacharya.Mr. D.Datta.

30 Oct 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

    CASE NO:  CC-  41 of 2014

Sri Sukumal Das,
S/O- Lt. Bhabatosh Das,
Battala, Bijoynagar, 
Sabroom, South Tripura.    ...............Complainant.
    

         ______VERSUS______

      1. Hindustan Motors Ltd.,
         Represented by its Managing Director,
        Hoogli, West Bengal – 712233.

    2. Sri Abhijit Roy Chowdhury,
        Proprietor Indu Motors Authorized Dealer 
        of Hindustan Motors Ltd.,
        6- Sakuntala Road, Agartala, 
        Tripura West.            ............Opposite Parties.
            

                    __________PRESENT__________

 SRI S. C. SAHA
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. Dr. G. DEBNATH
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SHR. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

For the Complainant         : Sri Debashis Dutta and 
                  Smt. Deepa Bhattacharya,                
                  Advocate. 
                           
For the O.P. No.1        : Sri Amritlal Saha,
                  Sri Kajal Nandi and
                  Sri Abheek Saha,    
                  Advocates.

For the O.P. No.2        : None appeared.

JUDGMENT  DELIVERED  ON:  30.10.15

J U D G M E N T
            This is a complaint U/S 12 of the Consumer Protection Act, 1986(herein after referred to as 'the Act') filed by the complainant, Sri Sukamal Das of Bijaynagar, Sabroom, South Tripura against the O.Ps, namely Hindustan Motors Ltd. represented by its Managing Director and Sri Abhijit Chowdhury, authorized dealer of Hindustan Motors Ltd. over a consumer dispute alleging negligence and deficiency in rendering service on the part of the O.Ps.
2.        The fact of the case as gathered from the record is that the complainant purchased one HM Shifeng Winner 2.0 DSL vehicle manufactured by the O.P. No.1, Hindustan Motors Ltd. from the authorized dealer, Indu Motors, at Rs.4,18,000/- on 19.02.13. Soon after purchase of the vehicle it started giving numerous problems. So, he had to place the vehicle with the authorized service centre of the company on a number of occasions. As per his requirements, the vehicle was repaired by the service engineer of the authorized service centre from time to time but it was short lived. The complainant time to time reported to the O.P. No.2 about the defective condition of the vehicle. He even sent a demand notice to the O.P. No.2 requiring him to replace the defective vehicle by a new one as it suffered from inherent manufacturing defect. But the O.P. No.2 did not respond to his requests. Finding no other alternative, finally he produced the defective vehicle with the service centre of the company on 31.05.13 expressing his unwillingness to take back the defective vehicle unless it was replaced by a new one. The O.P. No.2 sent a letter to him asking him to take back the vehicle as it was ready for delivery. Upon inspection of the vehicle, he found that it was not free from defect till then. According to the complainant, the O.Ps adopted unfair trade practice by selling a defective vehicle to him. Thus, the conduct of the O.Ps falls within the ambit of negligence and deficiency in rendering service. Hence, this complaint.
3.        The O.P. No.1, Hindustan motors Ltd, contested the case by filing written objection stating, interalia, that the vehicle in question was purchased by the complainant for commercial purpose and hence the complainant can not be termed as a 'Consumer' within the meaning of section 2(1)(d) of the Act. Further that, the subject vehicle was purchased by the complainant on 19.02.13 and from the job card it would be evident that on 31.05.15 when the vehicle was placed with the service centre of O.P. No.2,  it plied a distance of 5200 km within a span of 3 months. This establishes the fact that the vehicle was defect free. If the vehicle suffered from any inherent manufacturing defect, certainly it could not have plied 5200 km within the span of 3 months. As per terms of warranty, the vehicle is replaceable only if it suffers from inherent manufacturing defect. Since the vehicle did not suffer from inherent manufacturing defect, the question of replacement of the vehicle did not arise. Further that, whenever the vehicle was produced before the service centre with any complaint, the problem, if any, was duly attended to the utmost satisfaction of the complainant and delivered the same in a roadworthy condition. On 31.05.13 the complainant reported to the service centre with some normal wear and tear problems which were rectified and made ready for delivery. The complainant deliberately did not take delivery of the subject vehicle with some ulterior motive. On 1st August, 2013 the O.P. No.2 wrote a letter to the complainant with a request to take delivery of the vehicle but he did not respond to their letter. It is denied that the O.Ps were negligent and deficient in rendering service to the complainant. 

4.        The O.P. No.2, the authorized dealer of O.P. No.1, did not contest the case despite receipt of notice. Hence, the case has been proceeded exparte against the O.P. No.2.

5.        In support of the case, the complainant has examined himself as P.W.1 and has proved and exhibited the following documents;
    Exhibit 1- Sale certificate dated 19.02.13,
    Exhibit 2- Delivery Challan dated 19.02.13,
    Exhibit 3- Policy of Insurance,
    Exhibit 4- Transport Information System,
    Exhibit 5- Letter of the complainant addressed to the Sales Manager of O.P. No.2,
    Exhibit 6- Letter dated 31.08.13 of the works Manager of O.P. No.2 and
    Exhibit 7- Advocate's Notice dated 12.09.13.

6.        On the other hand, one Sri Gyan Nath Tiwari, the authorized representative of O.P. No.1, filed examination in chief by way of affidavit as a witness of O.P. No.1. Relying upon the decision of the Hon'ble Supreme Court rendered in Appeal (Civil) 7975 of 2001 decided on 12.08.2002 the O.P. No.1 made a prayer before this Forum for allowing their witness to give reply to the suggested questions of cross examination on affidavit. Accepting the contentions of the O.P. No.1, this Forum directed the complainant to submit suggested questions of the cross examination of the witness of O.P. No.1 to give reply to those questions on affidavit. But the complainant choose not to file suggested questions of the cross examination as directed and, therefore, he did not get the opportunity to cross examine the witness of the O.P. No.1.        
FINDINGS:-
7.        The points that would arise for consideration in this proceeding are:
        (I) Whether the complainant is a Consumer within the meaning of Section 2(1)(d) of the Consumer Protection, 1986;
        (II) Whether the O.Ps adopted unfair trade practice and thus deficient in rendering service to the complainant.

8.        We have already heard arguments advanced by the learned counsel appearing for the complainant and the O.P. No.1. Also perused the pleadings, documents on record and the evidence adduced by the parties meticulously. 

9.        It is the contention of the O.P. No.1 that the complainant was not a consumer within the meaning of Section 2(1)(d) of the Act as the vehicle in question was purchased by him for commercial purpose.
10.        The explanation appended to Section 2(d)(ii) reduced the question ''what is commercial purpose'' to a question of fact to be decided in the facts of each case. The several words employed in the explanation viz ''use by himself'' exclusively for the purpose of earning his livelihood and by means of self employment make the intention of parliament abundantly clear that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. If the buyer of goods uses them himself i.e. by self employment for earning livelihood, it would not be treated as a commercial purpose and he does not cease to be a consumer for the purpose of the Act. As against this a person who purchases a car to be plied or operated by another person would not be a consumer.

11.        Indisputed, the vehicle was purchased by the complainant for commercial purpose. It would be evident from the policy of insurance that the complainant insured the vehicle stating it as a commercial vehicle. From the averment made by the complainant himself in his pleading indicates that all through the vehicle was placed with the service centre of the company for repairs by a driver. Nowhere in his pleading it has been asserted by the complainant that the vehicle was driven by himself and he used the vehicle exclusively for the purpose of maintaining his livelihood by means of self employment. During the course of proceeding, the complainant has failed to produce his driving license to show that he himself drove the vehicle. In absence of which, it is very hard to believe that the complainant used the vehicle for the purpose of self employment and, therefore, he can not claim benefit of explanation part of Section 2(d)(ii) of the Act. We are in agreement with the argument advanced on behalf of the O.P. No.1 that the complainant purchased the vehicle for commercial purpose and hence, he does not fall within the within the ambit of 'Consumer' as defined in Section 2(i)(d) of the Act.

12.         The next point agitated by the complainant is that soon after purchase of the vehicle it started giving numerous problems, for which the vehicle had to be placed with the service centre of the company on 4 occasions on 06.04.13, 13.05.13, 17.05.13 and lastly on 31.05.13. Though the defects were rectified for the time being, yet it was short lived. According to the complainant, the subject vehicle suffered from inherent manufacturing defect and hence it has to be replaced by a new one with adequate compensation.    

13.         What is manufacturing defect? A manufacturing defect is a problem that becomes a part of the product when it is made.
        Admittedly, the vehicle was purchased by the complainant on 19.02.13. From the job card dated 31.05.13 it indicates that within a span of little more than 3 months it plied on the road for 5200 km.  If it was suffering from inherent manufacturing defects, certainly it could not have plied on the road for such a long distance within a span of 3 months from the date of purchase.
14.        As it appears, the vehicle was first placed with the service centre of the company on 06.04.13 with the complaint of crack in silencer pipe and leakage of mobil which were rectified with the satisfaction of the complainant. On 13.05.13 the vehicle was produced before the service centre for routine change of gear oil, mobil etc. On 17.05.13 it was again placed with the service centre to repair the leakage in radiator and the defect was removed. Lastly, the vehicle was brought to the service centre on 31.05.13 with some problems. The job card dated 31.05.13 suggests that the problems arose in the vehicle because the engine overheated due to shortage of sufficient water and coolant in the engine. It is the duty of every driver of the vehicle to check regularly whether there is sufficient water and coolant in the engine. For that matter the manufacturer of the vehicle can not be held responsible. 
15.        The defects as occurred in the vehicle, which are apparent from the job cards, do not demonstrate that these were inherent in nature. All the defects appeared to be rectified from time to time  as per requirement of the complainant. As per terms of warranty, the warranty will only applicable for repair. The replacement of the vehicle may be ordered when it is proved that the vehicle suffers from inherent manufacturing defect. We have already pointed out that the defects occurred in the vehicle do not appear to us to be major which are not repairable. So it can not be said that the vehicle suffers from inherent manufacturing defect, for which it requires replacement. The various inherent defects as alleged by the complainant can not be accepted as proved without assistance of technical experts or necessary tests being carried out in approved laboratory. 

16.        It appears that the subject vehicle is lying in the service centre of the company since 31.05.13. The O.P. No.2 by a letter dated 1st August, 2013 requested the complainant to take delivery of the vehicle as it was ready for delivery after rectification of defects. But the complainant has not yet taken back the vehicle on the plea that it suffers from manufacturing defect. We think the complainant ought to have taken delivery of the vehicle and run it and if any defect was found he could have brought it to the notice of the O.Ps. The conduct of the complainant in not taking delivery of the vehicle after it was repaired can not be appreciated.

17.        For all the reasons aforementioned, we are of the opinion that the complainant has failed to establish that he was a consumer within the meaning of Section 2 (i)(d) of the Act and the O.Ps were negligent and deficient in rendering service to him. That being so, the O.Ps can not be fastened with any liability to compensate him. 

18.        In the result, therefore, the complaint U/S 12 of the Act filed by the complainant is dismissed being devoid of merit. Considering the  circumstances of the case, we make no order as to costs.     
           
19.                   A N N O U N C E D

SRI S. C. SAHA
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 
SMT. DR. G. DEBNATH,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.    SHRI. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.