SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> The complainant filed this complaint for a direction to change the whole body of the vehicle TATA Sumo Spacio A1, bearing registration No.KL2Q 7649 purchased by him from opp.parties, compensation and costs.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The first opp.party is the Manufacturer, the 2nd opp.party is the dealer and the 3rd opp.party is the servicing agent of the 2nd opp.party. The complainant purchased a Tata Sumo Spacio A-1 from the 2nd opp.party in the year 2003 with chasis number 421065 GW 2919160 and engine number 4978 P 27 GW2 891721. The vehicle was purchased for a sum of Rs.4,04,206/- [Rupees Four Lakhs Four Thousand Two hundred and six only] and the same was registered before the Kollam Regional Transport Authority with registration No. KL-2/Q 7649. The vehicle was taken delivery from the 2nd opp.party and the same is being serviced by the 3rd opp.party. The complainant is the registered owner cum driver.. He has 25 years experience in driving . He is the sole bread winner of the family and purchased it on self employment scheme. The vehicle is hypothecated to the Cholamandalam Financiers Madras. At the time of last service of the vehicle the 3rd opp.party noticed that the shell and different other parts of the vehicle was corroded and paint faded all over the body of the vehicle. It is due to the low quality sheet used for the manufacture of the body. The only alternate found was to change the whole body of the vehicle. The complainant who is a regular user of the Ambassador car exchanged the same with the Tata Sumo because the 1st and 2nd opp.parties made him believe that this vehicle is profitable and durable than any other vehicle also the condition of the vehicle would be stable for many years. Thereupon the complainant issued an advocate notice to the opp.parties and the opp.parties 2 and 3 accepted the notice and send reply. The defects noticed is the sole responsibility of the manufacturer and they are evading from their responsibility. For repairing the above said defects the estimate obtained from the authorized workshop is also produced. Hence this complaint.<br /> The first opp.party filed a version contending, interalia that the complaint is not maintainable either in law or on facts. The complainant is not a consumer as defined under section 2[1] [d] of the Consumer Protection Act, The complainant has no case that there is any deficiency in service on the part of this opp.party. The averment that the vehicle was being serviced by the 3rd opp.party and the periodical service and maintenance was being carried out by the 3rd opp.party till 30.11.2004 is not admitted. The complainant when approached the 3rd opp.party was directed to approach the 2nd opp.party for replacement of the body under warranty. However, he did not approach the 2nd opp.party. The allegation that the rusting was on account of the low quality sheet used for the manufacture of the vehicle is denied. The rusting is dependant on various external parameters regular maintenance of the car at authorized locations and use of car care treatment can only enhance longer life and durability. There is no merit in the contention of the complainant that if the body of the vehicle is replaced it would diminish the resale value of the vehicle. The averments that the opp.party had made the complainant believe that the vehicle is profitable and durable than any other vehicle is incorrect. The complainant has purchased the vehicle after personally inspecting the same and being satisfied with the vehicle. As per the terms and conditions of warranty of the vehicle the obligation of this opp.party is limited to repairing or replacing free of charge such parts of the vehicle which in the opinion of this opp.party is defective on the vehicle being brought to the dealer within the warranty period. The complainant has not till date brought his vehicle to the workshop of the 2nd opp.party. There is no merit or basis and no reliance can be placed in the estimate obtained by the complainant. The complainant is not entitled to seek replacement of the body of his vehicle as there has been no deficiency in service on the part of this opp.party. The opp.party cannot be held liable to compensate the complainant. Hence the 1st opp.party prays to dismiss the complaint.<br /> <br /> The 2nd opp.party filed a version with more or less identical conditions. The 2nd opp.party had no knowledge that the vehicle was being serviced by the 3rd opp.party. The burden is in the complaint to prove that he was carrying out the periodical services as per the operator’s manual at the authorized centers specified. The complainant never approached the 2nd opp.party with a complaint that several parts of the body of the vehicle is being rusted during the warranty period. The rusting due to low quality sheet is not admitted. The rusting of body parts is due to carelessness from the part of the complainant. The complainant had purchased the vehicle after a long inspection and satisfaction. This opp.party never forced the complainant to buy this vehicle and made him believe that it is durable and profitable . As per the terms and conditions of warranty of the vehicle the obligation of this opp.party is limited to repairing or replacing free of charge such part of the vehicle which in the opinion of the 1st opp.party is defective, being brought to the opp.party within the warranty period. The complainant has not brought the vehicle to the 2nd opp.party till date. The 2nd opp.party is not liable to change the body of the vehicle. There iss no negligence or deficiency of services on the part of the 2nd opp.party. Hence this opp.party also prays to dismiss the complaint.<br /> <br /> The 3rd opp.party filed a separate version contending, interalia that the complaint is not maintainable either in law or on facts and with more or less identical contentions as that of opp.parties 2 and 3. The statement of the complainant that this opp.party is the servicing agent of the 2nd opp.party is denied. This opp.party is the authorized service agent of the 1st opp.party. The complainant had approached this opp.party with the complaint that the body shell of his vehicle and other parts were rusting and seeking replacement of the same under warranty. This opp.party directed the complainant to approach the 2nd opp.party. This opp.party being only a service centre cannot consider the claim as put forth by the complainant under warranty. This opp.party is in no way involved with the sale of the vehicle. This opp.party replied to the notice sent wherein the complainant has been requested to approach the 2nd opp.party for redressing his grievance. However the complainant did not approach the 2nd opp.party. This opp.party cannot be held liable to change the body of the vehicle of the complainant. As there has been no deficiency in service on the part of this opp.party This opp.party is not liable to compensate the complainant. Hence this opp.party also prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration are:<br /> 1. Whether the complainant is a consumer?<br /> 2. Whether there any deficiency in service on the part of the opp.party?<br /> 3. Reliefs and costs.<br /> <br /> For the complainant PW.1 and 2 are examined. Exts. P1 to P8 are marked.<br /> For the opp.party DW.1 and 2 are examined. <br /> <br /> Point: I<br /> <br /> The contention of the opp.parties is that the complainant is not a consumer within the meaning of section 2 [1][d] of the Consumer Protection Act, 1986. According to the opp.parties the complainant has purchased the vehicle for commercial purpose and not for earning livelihood by means of self employment. It is argued that though the complainant would claim that he has purchased the vehicle for the purpose of earning a livelihood by means of self employment and that he himself is driving the vehicle he has not produced his driving license or badge for reasons best known to him . According to the opp.parties the sole reason for the non-production of the driving license and the badge is that the complainant has no driving license or badge and the vehicle is being driven by drivers engaged by him. Section 2 [1] [d] defines consumers as follows: “Consumer” means any person who – [i] 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 or [ii] [hires or avails of]any services 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 beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose. [Explanation: for the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self employment]<br /> <br /> <br /> Explanation to section 2[1] [d] includes persons using the vehicle though for commercial purpose for the purpose of earning his livelihood by means of self employment in the definition of consumer. But the complainant failed to establish that he comes within the explanation by producing his driving license and badge and the only inference that can be drawn under such circumstances is that he has no driving license or badge which in turn would mean that he is not driving the vehicle for the purpose of earning his livelihood. It is also worth pointing out that the opp.parties raised a contention that he is operating the vehicle as taxi engaging paid drivers in the version itself. In spite of it he did not produce his driving license or badge. In cross examination it was suggested that the complainant has not denied the averment in the version that he purchased the vehicle for operating it as a taxi engaging paid drivers. He has answered that he has not denied the same. The further suggestion that he has other vehicles is also not denied by the complainant. When the opp.parties raised a contention that the complainant is not a consumer in their version itself the burden is heavily upon the complainant to establish that though the vehicle was purchased for using for commercial purpose, he himself is driving the vehicle for the purpose of earning a livelihood by way of self employment and as such he is a consumer which the complainant failed to discharge. In these circumstances it cannot be said that the complainant is a consumer coming within the meaning of section 2[1][d] of the Consumer Protection Act 1986. Point found accordingly. <br /> <br /> Point 2 and 3<br /> <br /> The contention of the opp.parties is that the complainant failed to establish that there is any deficiency in service on the side of the opp.parties. The contention of the complainant is that his vehicle is being serviced by the 3rd opp.party and while so he noticed rusting of the body of the vehicle which he had bought to the notice of the 3rd opp.party and requested to replace the body but the 3rd opp.parties did not comply with his request which amounts to deficiency in service on the part of the opp.parties. According to the opp.parties the 3rd opp.party is only an authorized servicing centre and the warranty claims can be entertained only at a dealer point which is specifically mentioned in the warranty conditions and this aspect was brought to the notice of the complainant by the 3rd opp.party and asked him to take the vehicle to the 2nd opp.party who is the dealer but the complainant failed to take the vehicle to the 2nd opp.party. Though the complainant would contend that he was not told to take the vehicle to the 2nd opp.party, that contention is belied by Ext.P9 reply notice produced by the complainant himself which shows that such a direction was given to the complainant prior to the filing of this complaint. Therefore, as argued by the opp.party the complainant failed to comply with the warranty conditions. There is force in the contention of the opp.parties. When there is violation of the conditions of warranty, the complainant is not entitled to get the benefits of warranty and reliance can be drawn from the decision of Kerala State Consumer Disputes Redressal Commission reported in II 2001 CPJ 117 wherein it has been held that when there is breach of warranty conditions a complainant is not entitled to claim on the basis of that warranty. No reason, what so ever, is forthcoming for the non-production of vehicle before the 2nd opp.party. In these circumstances it cannot be said that there is any deficiency in service on the part of the opp.parties.<br /> <br /> The complainant has obtained a report by an expert with regard to the damages sustained to the vehicle. The report is seriously assailed by the opp.parties on the ground that it was not prepared adopting scientific methods. It is argued that the expert has stated that he has not used any magnifying glass for identifying the damages even though he would admit that the rusting in the vehicle is on account of galvanic corrosion which can be detected only with the help of a magnifying glass. The learned counsel for the opp.party would submit that a report prepared without resorting to scientific study cannot be treated as an expert report and in support of that contention he has relied on the decision of the Apex Court reported in AIR 1999 SC 3318. In the above decision the apex court has held that an expert is expected to base his findings on the basis of scientific materials and tests conducted by him. In the absence of the same, such a report cannot be treated as a report of an expert. So no value can be attributed to the report to come to a conclusion that the vehicle sustained damages as alleged by the complainant. <br /> <br /> As argued by the opp.party the complainant failed to take the vehicle to the dealer or manufacturer during the warranty period even after gettng Ext.P9. So we are of the view that no deficiency in service can be attributed on the opp.party. It is well settled that only when deficiency in service is established a complainant is entitled to get any relief . For all that has been discussed above ,we find that the complainant failed to establish any deficiency in service on the part of the opp.party.<br /> <br /> In the result the complaint fails and the same is here by dismissed. No costs.<br /> <br /> Dated this the 21st day of October, 2008.<br /> <br /> .<br /> <br /> I N D E X<br /> List of witnesses for the complainant<br /> PW.1. – Sajeev<br /> PW.2. – Sasidharan Pillai<br /> List of documents for the Complainant<br /> P1. – Photocopy of invoice cum delivering receipt from Koyenco Motors dt. 12.8.2003<br /> P2. – Owner’s Manual and Service Book<br /> P3. – Quotation from Benz Automobile<br /> P4. – Estimate for repair from Benz motors<br /> P5. – Advocate notice<br /> P6. – Postal receipt<br /> P7. – Photocopy of Acknowledgement card<br /> P8. – Reply notice from Koyenco Autos Pvt. Ltd.<br /> P9. – Reply notice dt. 6.12.2004 from the Benz Motors.<br /> List of witnesses for the opp.parties<br /> DW.1. – V. Abdurahiman<br /> DW.2. – Moncy George<br /> <br />