Kerala

StateCommission

A/13/431

SHANMUGHAN - Complainant(s)

Versus

TVS SUNDRAM IYENGER AND SONS - Opp.Party(s)

28 Nov 2017

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL.NO.431/2013

 JUDGMENT DATED : 28.11.2017

(Appeal filed against the order in CC.No.153/2010 on the file of CDRF,  Kollam, order dated : 29.04.2013)

 

PRESENT

JUSTICE SHRI.S.S.SATHEESACHANDRAN          : PRESIDENT

SRI.V.V.JOSE                                                   : MEMBER

APPELLANT/COMPLAINANT

          Shanmughan, aged 67 years,

          S/o Kochaiyappan,

          Puthuval Purayidom,

          Srayikkad, Azhikkal P.O,

          Karunagapally-690547

 

          By advocate Sri.D.R.Rajmohan C.S

RESPONDENT/ OPPOSITE PARTY

The   Manager,

TVS Sundram Iyengar & Sons Ltd,

(Marine Section) Second Mile Stone,

Killikolloor, Kollam

 

By Advocate Sri.David Koshy

 

 

 

JUDGMENT

JUSTICE SHRI. S.S.SATHEESACHANDRAN: PRESIDENT

Complainant is the appellant.  Appeal is directed against the dismissal of his complaint by  the Consumer Disputes Redressal Forum, Kollam for short  “district forum”.  He filed a complaint before the forum for recovery of cost incurred for reparing an engine purchased from opposite party and fitted in his fishing boat, with compensation and costs.  According to him, the engine purchased and fitted in his fishing boat had mechanical defects and he had to incur  a sum of Rupees one lakh fifteen thousand four hundred and sixty one for purchase of spare parts, Rupees Ten thousand for labour charges and Rupees Fourteen thousand seven hundred and twenty two as workshop bill.  Complaint was filed for recovery of the above amounts with Rupees Ten thousand as compensation.

2.  Opposite party resisted the claims contending that  complainant was not a consumer, complaint was bad for non joinder of parties as the manufacturer had not been impleaded despite raising an allegation that the machine purchased had manufacturing  defects, and that warranty provided over the machine was already over and as such no claim by complainant was entertainable.

3.  On the materials placed by both sides, which consisted of PWs 1 and 2 and Exts.P1 to P3 for complainant and DWs.1 and 2 and Exts.D1 to D10, and also hearing counsel on both sides forum below upheld the contentions of opposite party that  the complainant was not a consumer and  warranty over the  machine was also over.  In that view of the matter complaint was dismissed.  Aggrieved complainant has filed this appeal.

4.  We heard counsel for the appellant and perused the records.  Complainant was eaking  out his livelihood by means of self employment as engaged in catching fish by using his fishing boat ‘Makarajyothi’, to which the engine purchased from opposite party was fitted, is the submission of counsel to contend that he comes under the explanation provided to Section 2(d) of Consumer Protection Act. After going through the complaint and also evidence of complainant examined as PW.1, we find that despite challenge from opposite party in their version disputing his status as a consumer he has not asserted nor canvassed any case under the Explanation to Section 2(d) of the Act.  What has come out in evidence is that he has employed eight workers in his boat for catching fish. When there was no case that  the business of catching fish using his boat was for purpose of earning his livelihood by means of self employment the lower forum cannot be found fault with in concluding that he was not a consumer.  Similarly Ext.D7 brochure containing guaranty applicable to the engine purchased by complainant specifically states that it is for a period of 12 months from the date of sale of engine or 1500 operational hours, whichever is earlier. Concededly  the  engine purchased by complainant  has exceeded 1500  operational hours when defects were noted.  So complainant was not entitled to get protection of warranty.  Though complainant had alleged of manufacturing defects over the engine purchased the manufacturer was not impleaded,  but only the dealer was proceeded as the opposite party.  Dismissal of complaint in such circumstances by the lower forum does not  suffer from any infirmity.

Appeal is dismissed directing both sides to suffer their costs.

 

JUSTICE S.S.SATHEESACHANDRAN:  PRESIDENT

 

 

V.V.JOSE                            :  MEMBER

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THE KERALA STATE              CONSUMER DISPUTES   REDRESSAL COMMISSIION

VAZHUTHACAUDE,

THIRUVANANTHAPURAM

 

 

 

 

 

          JUDGMENT IN  A.431/2013

         DATED:28.11.2017