Andhra Pradesh

Visakhapatnam-II

CC/464/2011

M/s Priyankas Primary Educational Society - Complainant(s)

Versus

VE Commerical Vehicle Limited - Opp.Party(s)

A.V.C.N. Nageswara Rao

28 May 2015

ORDER

Reg. of the Complaint: 25-11-2011

                                                                                                                                      Date of Order:28-05-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II

AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDHA RAO, M.A., L.L.B.,

       President

2.Sri C.V.RAO, M.A., B.L.,

                                             Male Member

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

                                            

 

THURSDAY, THE 28^TH DAY OF MAY, 2015

CONSUMER CASE NO.464/2011

 

BETWEEN:

M/s Priyanka’s Primary Education Society,

Rep., by its Secretary D.Prem Kumar S/o Ch.Sharma,

Hindu, aged 48 years, having its office at 30-35-9/1,

Vivekananda Colony, Visakhapatnam.

…Complainant

AND:

1.VE Commercial Vehicle Limited (A Volvo Group and Eicher

Motors Joint Venture) rep. by its Managing Director EICHER,

102 Industrial Area No.1, Pithampur-455775,

District Dher (MP), India.

 

2. Lakshmi Ganapathi Automobiles Pvt. Limited,

Rep. by its Managing Director, D-Block, 200A,

Autonagar, Gajuwaka, Visakhapatnam-12.

…Opposite Parties

This case coming on 18-05-2015 for final hearing before us in the presence of      SRI A.V.C.N.NAGESWARA RAO, Advocate for the Complainant, and of SRI A.RAJ KUMAR, Advocate for 1^st and 2^nd Opposite Parties, and having stood over till this date for consideration, this Forum made the following.

 

ORDER

 (As per SRI C.V.RAO, the Honourable Member on behalf of the Bench)                                                                              

1. The Complainant asked the forum to pass an order in its favour and against the OPs as follows;

1. To replace the School Bus Model No.1090RHDK41 with registration No.AP31TA5750;
2. To pay Rs.5,00,000/- towards damages/compensation for deficiency service;

 Or in alternative

1. To pay an amount of Rs.11,98,796/- with 18% interest from 07-07-2010;
2. To pay Rs.5,00,000/- towards damage/compensation for deficiency service;
3. For cost;
4. Such other relief or reliefs as the Forum may deem fit and proper in the settlement of the cost.

2.       The Opposite Parties 1 and 2 strongly resisted the claim of the Complainant and asked the Forum to dismiss the complaint.

3.       The case of the Complainant, as can be seen from the complaint, is that the complainant is running Educational Institutions in Visakhapatnam under the name and style of M/s Priyanka Educational Society. In providing  facilities to its students,  the complainant intended to have an own private bus to give more service to its students who are studying in the schools and colleges  and for that purpose, the complainant while searching to purchase a suitable Transport Vehicle for its children, came to know that the first OP is manufacturing Commercial Vehicles including all vehicles like Buses and Mini Buses  and other Transport Commercial Vehicles,  then the complainant diecided to purchase the Commercial Vehicle Bus from the 2^nd OP as the 1^st OP has promised to minimize environmental pollution, air pollution and other credentials of the vehicle as per the broucher. As such, the complainant purchased the school bus Model No.1090RHDK41 seated bus BSII for Rs.11,98,796/- on 07-07-2010 under inVoice No.VS/00082 with a guarantee period of 36 months from the date of purchase. The warranty shall be manufacturing defects for period of 36 months from the date of installatioin for the purpose of the aggregatges of the vehicles irrespective of kilometers covered during this period. From the date of purchase, the vehicle has suffering from manufacturing defects, but due to the urgency, the complainant used the bus with great difficulty and finally when the bus did not run on the roads, due to the manufacturing  defects, immediately the complainant  approached the 2^nd OP on 09-08-2011  and made a complaint as the 2^nd OP is the authorized service centre for the first OP. The 2^nd OP without verifying the records simply rejected the vehicle for repairs, and illegally demanded an amount of Rs.52,854/-  to carry out the repairs. Then the complainant informed that the bus is within the warranty period and the 2^nd OP is not supposed to charge for the reapirs. But the 2^nd OP without consultation of the first OP, without bothering about the warranty, demanded the amount for repairs and unless the amount is paid, the 2^nd OP refused to get it repaired. Then the complainant has no other option except to pay the amount due to the urgency and badly in need of the bus for the school children and agreed to pay the amount and the 2nd OP carried out the repairs as per the job card invoice dated 09-08-2011. The vehicle was repaired and the complainant issued a cheque for the amount of Rs.52,854/- under the Cheque No.318463 drawn on A.P.Mahesh Cooperative Bank Limited by a receipt dated 2-9-2011 passed by the 2^nd OP. The amount was charged by the 2^nd OP on the pretext that the vehicle was run in the water and because of that, the vehicle was damaged. But in the warranty it was not mentioined and it was only lame excuse and warranty does not disclose that the vehicle should not ply in the water. It is only after thought of the 2^nd OP to collect the repair charges, when the vehicle is within the warranty period, the complainant is very innocent in dealing with the warranty affairs, and then approached the Laywer for getting advice. When the complainant was advised not to pay any amount  as the vehicle was within the warranty period. Then the complainant got issued a Legal Notice to the 2^nd OP on 5-9-2011 requesting not to present the cheque for realization as the vehicle was within the warranty period of 36 months.The complainant also gave stop payment, if presented by the 2^nd OP. The 2^nd OP intentionally presented the cheque to put the  complainant (sic) the 2^nd Opposite Party got issued a Reply on 17-09-2011 throwing the burden on the first OP that the compalinant has to pay money for the repairs,  through the 2^nd OP for repairs even though the vehicle was within the guarantee period and in the said reply notice there are some false allegations  and demanded the cheque amount from the complainant. The complainant stated that when the 2^nd OP not positively responded for the notice issued by the complainant throwing burden on the complainant  and demanded the amount under the guise  of the repairs, then the complainant again got issued a notice on 21-10-2011 to the manufactuer as well as the service provider who are the OPs with demand to replace the bus with a new one or in alternative to pay amount of Rs.11,98,796/-  with 18% p.a., interest with damages/compensation. The said notice was received by the OPs and the OPs have not taken much interest in replacing or refund the amount. Hence, this complaint.

4.       The complainant filed an Evidence Affidavit besides Written Arguments to support his claim. Exhibits A1 to A10 are marked for the complainant.

5.       On the other hand, the Opposite Parties 1 and 2 resisted the calim of the complainant by contending, as can be seen from their counter,  that the complainant purchased Bus Model No.1090RHDK41  seated Bus BSII Model for Rs.7,98,796/- on 7-7-2010 for their Commercial purpose and at the time of purchase,  the 1^st OP issued a warranty for 36 months from the date of purchase to the manufacturing defects. The said vehicle was not having any manufacturing defect as alleged by the complainant. It is false to state that due to the manufacturing defect with great difficulty, they run the bus till 09-08-2011. Infact the complainant requested the 2^nd Opposite party to bring the vehicle from as it was stationed since the Engine of the vehicle was ceized (sic) due to the rash and negligent driving of the driver in the water. Due to the rash and negligent driving of the vehicle in water the succession pipe of the Turbo engine sucked the water through the pipe into the AIR Filters from there it entered into the engine and when the driver did not observe the same, the engine was seized. When the defect was verified and detected by the 2^nd Opposite Parties on the request of the complainant,  informed the same to the 1^st OP on 9-8-2011 for application of warranty. As per the investigation done by the 2^nd Opposite party the engine was seized due to the rash and negligent driving of the driver that water was sucked by the suction pipe and the engine  was seized and the 1^st Opposite party refused warranty to apply the above problem, since it is not covered under warranty conditions. Immediately, the same was informed to the complainant by the 2^nd Opposite party. The complainant agreed for paid service to the vehicle and requested us to do the servicing and rectify the defect to the bus and  after completion  of servicing and rectification of the defect in the engine, the 2^nd Opposite party raised a bill for Rs.52,853.80ps on 2-9-2011 and the complainant issued a cheque in favour of the Ops on 2-9-2011 for Rs.52,854/- drawn on the A.P.Mahesh Cooperative Urban Bank Limited, Visakhapantam through cheque bearing No.318463. the 2^nd Opposite Party delivered the vehicle after receipt of the cheque from the complaiant. But when the 2^nd Opposite party presented the cheque for collection, the complainant instructed his Banker to stop payment. When the 2^nd Opposite party questioned about high handed activity of the complainant, the complainant got issued notice through its counsel as if the defect is manufacturing one. But in fact the defect which is mentioned by the complainant does not come under the purview of manufacturing defect, hence, the warranty shall not be extended in rectifying the defect. Hence, the Opposite parties are not responsible for the same. The complainant society is still running the bus for the school children and they are using the same for the commercial purpose and the bus is not kept idle as a monument as stated by the complainant . The complainant is getting fitness certificate year after year from the Road Transporting Authorities and the RTO issued fitness certificate to play the vehicle as a School Bus for the year 2013 also and the complainant with a view to avoid his liability to pay mending charges to us made all false allegations without any tenable ground.

6.       OPs filed an evidence affidavit and also written arguments to buttres their contentions. Exhibits B1 to B4 were marked for the OPs.

7.       The matter has been heard on behalf of the comlanant as well as the Opposite Parties.

8.       After careful perusal of the case record, this Forum finds that the Complainant M/s Priyanka Education Society is a Commercial Establishment – an Educational Institution in Visakhapatnam  had purchased  a Commercial Vehicle i.e., a School Bus from the OPs who are manufacturing and selling commercial vehicles and the complainant used the Bus to transport its studuents from the school by charging necessary fee. It can be clearly seen that  the complainant is a commercial establishment using the purchased vehicle in question for a commercial purpose. As such, the complainant does not come under category of “consumer”  as per Section 2 (1) (d) of the Consumer Protection Act, 1986. Therefore, this Forum has no jurisidiction to entertain this complaint filed by a non consumer like the complainant herein. As such, this complaint is liable to be dismissed.

9.       In the result, this Complaint is dismissed. No costs.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 28^th day of May, 2015.

   Sd/-                                          Sd/-                                                Sd/-

LADY MEMBER                                 PRESIDENT                                                  M.MEMBER

 

 

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainants:

Exhibits	Date	Description	Remarks
A-1	06-12-2004	Certificate of Forum Registration	Photocopy
A-2	06-12-2004	By-laws Memorandum of Association	Photocopy
A-3	07-07-2010	Invoice for Rs.11,98,796/- under invoice No.VS/00082	Photocopy
A-4	09-08-2011	Job Card in Voice	Photocopy
A-5	02-09-2011	Receipt issued by the 2nd OP	Photocopy
A-6	05-09-2011	Notice issued by the complainant to the 2nd OP	Photocopy
A-7	17-09-2011	Reply from the 2nd OP for the Notice	Photocopy
A-8	24-10-2011	Notice issued by the Complainant to OP	Photocopy
A-9	24-10-2011	Reply Notice from the 2nd OP	Original
A-10		Warranty Card	Photocopy

 

Exhibits Marked for the OPs     

Exhibits	Date	Description	Remarks
B-1	09-08-2011	Job Card	Photocopy
B-2	30-08-2011	Gate Pass	Photocopy
B-3	02-09-2011	Credit Bill	Photocopy
B-4	11-08-2011	Letter from 1st OP	Photocopy

 

   Sd/-                                          Sd/-                                                Sd/-

LADY MEMBER                                 PRESIDENT                                                  M.MEMBER