KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
C.C. No. 92/2019
JUDGMENT DATED: 24.08.2023
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SMT. BEENA KUMARY. A : MEMBER
COMPLAINANT:
Maneesh Sasidharan, Managing Partner, M/s Salabham Travels, 2/382, Kunnumpurath Buildings, Thiruvankulam P.O., Ernakulam.
(By Adv. T.M. Abdul Latiff)
Vs.
OPPOSITE PARTY :
Autobahn Trucking Corporation Pvt. Ltd., Bharat Benz & Mercedes Benz Buses Authorized Dealer, Nedumbassery P.O., Ernakulam.
(By Advs. Jagan Abraham M. George & Jaison Antony)
JUDGMENT
SMT. BEENAKUMARY A. : MEMBER
Brief facts of the complaint are as follows: The complainant purchased two buses from the opposite parties to be used as contract carriage and to be plied between Ernakulam and Hyderabad. In the case of contract carriages, normally the buses are used to run from Cochin to Chennai and Bangalore, but as there was rush of passengers to Hyderabad and also trips required use of new vehicles with all facilities of a luxury coach, the body building of the buses are also undertaken by the opposite parties. Accordingly hire purchase facility was also arranged by the manufacturer of the buses. The complainant had paid Rs. 6,50,000/- for each vehicle as initial payment. The buses are to be taken from the body building yard to the place of the complainant at Kochi by arranging drivers, staff and his manager etc. The vehicles were taken for registration from the body builders at Belgaum to Pondicherry on 11.12.2018. One of the buses when reached a spot called Narippallam (Dharmapuri), Salem NH at 3 p.m it was noticed that smoke and fire was coming out from the rear side of the bus and suddenly the vehicle stopped. At that time driver Meenakshi Sundram, the complainant’s friend Laiju Jose and Maneesh were present in the bus. Though the fire extinguisher provided in the bus was used to control the fire, as the engine was at the rear side, the bus was engulfed in fire suddenly and the fire was not controllable. The Police was informed and the Fire Force reached the spot after about 20 minutes and controlled the fire. But some portions of the vehicle were fully burned in the rear and inside. The Police was also informed and thereafter the manufacturing company and the 1st opposite party was informed about the same and in fact though the complainant tried to get the reason for the fire till this date it was not informed to him. So it was a clear case of manufacturing defect and opposite parties have accepted the same and has now replaced the said vehicle with a new one. The finance was also provided to the said vehicle as the complainant had purchased two vehicles and one of them has caused the fire due to manufacturing defect and reason for the catching of fire was not informed, in which case the complainant can take some remedial measures to see that the other vehicle also purchased on the very same date undergo of such fire. The complainant waited for three months without using the said vehicle and it was due to fear also the same could not be used and as a result of the same there was a total non-use of both the vehicles for a period of three months. Normally the income which would fetch for each vehicle is at Rs. 1.5 lakhs daily and accordingly there is a total loss of Rs. 45 lakhs per month in respect of the said two vehicles. In view of the fact that the loss accrued due to the manufacturing defect where the other vehicle was provided some allowances were allowed by which the moratorium was provided for a period of four months. The complainant stated that all the belongings kept into the vehicle was also destroyed due to the fire worth Rs. 2,00,000/-. Due to the incident the complainant and his staff suffered too much mental agony and hardships for that the complainant claims Rs. 2,00,000/- as compensation. Due to the accident, he was forced to stay at a hotel and incurred the expenses of his staff and friends thus he had spent more than Rs. 50,000/-. Though the manufacturer provided new bus to the complainant he had to pay tax, insurance etc. for the new bus amounting to Rs. 12,000,000/-. The complainant further claims Rs. 4,00,000/- which was paid as advance payment of the bus. The opposite party agreed to compensate all the losses to the complainant but he is not willing to meet the same. For that he has filed this complaint. The complainant further claims Rs. 2,00,000/- as compensation for the unfair trade practice of the opposite party. Thus, he totally claims Rs. 67,50,000/-.
2. The opposite party filed version denying the entire allegations raised by the complainant. In the version the opposite party submitted that the complainant is not a consumer as defined under Sec. 2(d) of the Consumer Protection Act. So also as per the Amended Act Sec. 2(1)(d)(ii) it was amended by adding the words ‘but does not include a person who avails of such service for any commercial purpose’. The vehicle sold by the opposite party to the complainant amounted to ‘goods’ and such goods were purchased for commercial purpose for earning more profits. There are so many decisions supporting that this Commission does not have the power to entertain such complaints. Hence the opposite party stated that the complaint is not maintainable firstly on the ground that under Sec. 2(1)(d)(ii) the goods had been purchased for commercial purpose and secondly on the ground that the services were hired or availed of for commercial purpose. Thus the complainant does not have locus standi to file the complaint as he does not fall within the ambit of the term ‘consumer’ as the vehicles were purchased admittedly for commercial purpose and the complainant is a businessman engaged in various businesses including running of tourist carriage operations and other businesses.
3. The opposite party denied all the allegations in the complaint. The opposite party never replaced another vehicle or they never agreed to pay any amount to the complainant. They arranged another loan to purchase a new vehicle. There is no deficiency in service or unfair trade practice occurred from their side. The complainant filed the complaint on an experimental basis for gaining illegal benefits. Hence, the opposite party prayed for the dismissal of the complaint.
4. In this case the complainant did not file proof affidavit and there was no representation from his side. So many opportunities have been given for his evidence. But the complainant was not present. The opposite party filed proof affidavit and produced 4 documents. Ext. B1 is the original of extract of the Board Resolution dated 02.03.2020 authorizing opposite party’s Area Head to conduct the case. Exts. B2 to B4 are Form 22 of the bus, copy of certificate issued by ARAI and copy of temporary certificate of registration.
5. Points to be ascertained are:
- Whether the complaint is maintainable?
- If so, reliefs and costs.
In this case the complainant did not turn up for conducting the case. He has not filed proof affidavit and not turned up to cross examine the opposite party. The affidavit filed by the opposite party is unchallenged.
6. Points (i) & (ii):-In this case the complainant himself admitted that his monthly income from the bus service is Rs. 45 lakhs. In the complaint the complainant himself stated that “normally the income which would fetch for each vehicle is at Rs. 1.5 lakhs daily and accordingly there is a total loss of Rs. 45 lakhs per month in respect of the said two vehicles”. He is the Managing Partner of M/s Salabham Travels. The complainant purchased the buses for his business purpose. There is no case that this is for his livelihood.
As per Sec. 2(7) (i) of the Consumer Protection Act 2019, 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”.
7. The complainant purchased the bus for commercial purpose. He has no case that the business is for his livelihood. He has so many staff and his monthly income from the business is more than Rs. 40,00,000/-. Therefore, the complainant purchased the bus for commercial purpose and he does not come under the definition of the consumer as per the Consumer Protection Act, 1986 and the Amended Act 2019. Hence the complaint is not maintainable before this Commission. Therefore, we dismiss the complaint.
In the result, the complaint is dismissed. No order of costs.
JUSTICE K. SURENDRA MOHAN : PRESIDENT
BEENA KUMARY. A : MEMBER
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