Punjab

StateCommission

A/1165/2015

Kwality Pharmaceutical Pvt. Ltd. - Complainant(s)

Versus

Chevrolet Sales India Pvt. Ltd. - Opp.Party(s)

Manu Jindal

07 Dec 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1165 of 2015

 

                                                Date of Institution: 28.10.2015

                                                Date of Decision:  07.12.2015

 

Kwality Pharmaceutical (P) Ltd, 6th Mile Stone, Village Nag Kalan, Majitha Road, Amritsar 143601, Punjab India through its authorized signatory & its Managing Director, Ramesh Arora.

 

 

                                                                                                                  …Appellant/Complainant    

                             Versus

 

1.      Chevrolet Sales India Pvt. Ltd., Block-B, Chandrapura    Industrial Estate, Halol 389351, District Panchmahals, Gujarat,          India          through its Principle Officer.

 

2.      S.V Motors (Authorized dealer and Service agent of Chevrole  Sales India Pvt. Ltd).

 

          a.      G.T Road, near New Amritsar Opposite ITB Police,    Amritsar.

 

          b       16-A, Court Road, Near Ravi Gas Agency, Amritsar    143001.

 

                                                          ..Respondents/Opposite Parties                                                  

 

First Appeal against order dated 11.09.2015 passed by the District Consumer Disputes Redressal Forum,  Amritsar

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

            Shri. H.S. Guram, Member

 

 

Present:-

 

          For the appellant                             : Sh. Mandeep Singh, Advocate

         

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

          J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 11.09.2015 of District Consumer Disputes Redressal Forum Amritsar, dismissing the complaint of the complainant. The complainant now appellant has carried this appeal against the same. 2.  The complainant has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that it is a company registered and incorporated under the provisions of Companies Act, 1956, having its registered office at 6th Mile Stone Village Nag Kalan Majitha Road Amritsar. Ramesh Arora its Managing Director, has filed file the complaint, vide its resolution dated 15.03.2014. The complainant purchased one Chevrolet Cruze VCDi 'LTZ' BS4 bearing registration no.PB02-BJ-6897, vide invoice no.SVM/0096/2010-2011 dated 30.06.2010 for Rs.13,31,384/- from OPs. OP No.1 is authorized Sales and Service Dealer of OP No.2. After purchase of the car, it was got serviced from time to time. On 30.04.2014, when Managing Director of complainant/company Ramesh Arora was driving it from Amritsar to Jammu, there was blast in the car on the way and its brakes did not work and he found the car in a tottering condition. He was saved with help of persons of nearby Tyre Shop. Daily Dairy Report no.13 dated 30.4.2014 at police station Hira Nagar J & K was lodged by Ramesh Arora Managing Director of the complainant/company. The above-said car was completely burnt, due to manufacturing defect; which developed in the running of the vehicle. The complainant requested the OPs to check the car and to disclose the cause of fire erupted in the car, but it went in vain unnecessarily for five months. The OPs rather charged Rs.10,000/- from the complainant, when it was taken to their service station without any invoice. The complainant further suffered loss of vehicle to the tune of Rs.13,31,384/- and prayed for refund of the above amount with interest @ 12% p.a, besides compensation for Rs.3 lac for mental harassment along with costs of litigation of Rs.20,000/-.

3.      Upon notice, OP no.1 appeared and filed its separate written reply and contested the complaint of the complainant, on the ground that the complainant has concealed the material facts because the vehicle is not covered under the warranty. The complainant purchased the vehicle on 30.06.2010, whereas the complaint was filed on 09.09.2014 after expiry of four years and three months, when its warranty for a period of three years had come to an end. The present vehicle met with two major accidents; first was on 08.11.2010, when the vehicle in question ran 1582 km; and second on 10.10.2012, when the car ran 13493 km. Any manufacturing defect was totally denied. It was averred that liability of the manufacturer has come to an end. It was further pleaded that manufacturer General Motors India Pvt. Ltd had not been impleaded as a party in this case. There was no expert evidence on the record adduced by the complainant to prove any manufacturing defect in the vehicle, in question. The complainant has not impleaded the Insurance Company knowingly in this case. The OP No.1 controverted the averments of the complainant and prayed for dismissal.

4.      OP No.2 appeared and filed its separate written reply and contested the complaint of the complainant, on the ground that complainant has purchased the vehicle in question on 30.6.2010 with three years warranty and complainant has filed the complaint on 09.09.2014 i.e. after the expiry of warranty period. It was pleaded by answering OP that since the purchase of the car, it met with two major accidents, due to negligent driving of the driver of the car, in question. It was further averred that vehicle was insured with "Tata AIG General Insurance Company" for the period from 07.07.2013 to 06.07.2014 and information of the alleged accident was given to the Insurance Company. Net assessed loss of the car came to Rs.26,71,124.50 and net salvage from total loss basis came to Rs.8,23,500/-, which the complainant agreed to accept from the insurance company. The insurance company had already paid the insured/loss amount to the complainant in the month of July 2014. Rest of the averments of the complainant were controverted and OP prayed for dismissal of the complaint.

5.       The complainant tendered in evidence, his affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-8.  As against it; OP no.1 tendered in evidence affidavit of Sh. Vivek Singh Regional Manager of Chevrolet Sales India Pvt. Ltd Ex.OP-1/1 along with copies of documents Ex.OP-1/2 to Ex.OP-1/4. OP No.2 tendered in evidence affidavit of Sh. Rajesh Kakaria Account Manager/Attorney Holder of S.V Motors along with copies of documents Ex.OP-2/2 to Ex.OP-2/11. On conclusion of evidence and arguments, the District Forum Amritsar, dismissed the complaint of the complainant by virtue of order of District Forum Amritsar dated 11.09.2015. Dissatisfied with the order of the District Forum Amritsar dated 11.09.2015, the complainant now appellant has preferred this appeal against the same.

6.      We have heard learned counsel for the appellant at admission stage of the appeal and have also gone examined the record of the case.

7.      The relevant evidence on the record has been considered by us in this case. The complainant/company is registered and incorporated under the Companies Act and the car was purchased in the name of the company and its Managing Director Ramesh Arroa drove it at the time of accident. The invoice Ex.C-3 is in the name of the complainant/company. Ex.C-4 is the service record of the car. Ex.C-5 is translation of the document. Ex.C-7 is intimation from complainant regarding not receiving the response. Similarly, we have examined the correspondence Ex.C-8 on the record. The OP no.1 tendered in evidence affidavit of Vivek Singh, Regional Manager, of Chevrolet Sales India Pvt. Ltd Ex.OP-1/. Ex.OP-1/3 is "Owner's Manual". It has proved that warranty is for three years from the date of delivery of the car, in question. Ex.OP-1/4 is "Retail Sale and Service Agreement" on the record. OP No.2 tendered in evidence affidavit of Rajesh Kakaria Account Manager/Attorney Holder of S.V Motors Ex.OP-2/1, Ex.OP-2/2 is general power of attorney, Ex.OP-2/3 is vehicle repair record. Ex.OP-2/4 to Ex.OP-2/11 are copies of job cards. We further find, vide document Ex.OP-2/14 that surveyor was appointed in this case.

8.      We find that the warranty period of the car was three years from the date of its delivery. As per the invoice Ex.C-3, the car was purchased by the complainant on 30.06.2010 and period of warranty of three years ended on 29.06.2013. The car of the complainant caught fire on 03.04.2014 and its warranty period had already covered three years period. After, the warranty period is over, as such, no liability can be fastened upon OPs.

9.      Even otherwise, we find that complainant would not be a "consumer", as defined by Section 2(1)(d) of the Act, which is reproduced as under:-

          (d)     "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 payment, 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 purposes;

Explanation.— For the purposes 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 purposes of earning his livelihood by means of self-employment; 

The complainant is a company registered and incorporated under the Companies Act. The car in question was purchased in the name of the company and obliviously, it was used for the business of the company. The company always deals in earning profits and the business of the company is commercial and as per explanation of Section 2(1)(d) of the Consumer Protection Act, 1986, "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. There is no question of self-employment by the company; which consists of so many Directors inclusive its M.D. The complainant, thus, purchased the car for commercial purposes and it is not a 'consumer', as defined in Section 2(1)(d) of the Act and complaint is, thus, not maintainable on this point.

10.    Even vide Ex.OP-2/12, insurance claim was submitted in this case and report of Vinay Sarswat Surveyor is Ex.OP-2/13 regarding assessment of the loss. The District Forum recorded finding in the order that complainant has received total Insured Declared Value (IDV) i.e. Rs.8,30,000/- from the insurance company  towards full and final settlement of the claim on 03.07.2014 and the instant complaint was filed on 09.09.2014. There is no question of undue enrichment in this case to complainant. Sh. Vinay Sarswat, Surveyor and Loss Assessor has proved that complainant has received Insured Declared Value of Rs.8,30,000/- from the said insurance company, as full and final settlement, on 03.07.2014. Even otherwise, the incident of fire of the car took place on 03.04.2014 after expiry of warranty period.

11.    As a result of our above discussion, complainant is not proved to be a consumer and hence complaint is not maintainable. Even assuming the complainant to be "consumer" for the sake of arguments only, the complaint has been rightly dismissed by the District Forum. We find no ground to admit the appeal, as there is no force in this appeal. Consequently, appeal is dismissed in limine.

12.    Arguments in this appeal were heard on 03.12.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

13.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                                           (H.S.GURAM)

                                                                              MEMBER

 

December 7,  2015                                                             

(ravi)