Order-17.
Date-27/02/2017.
Smt. Sangita Paul, Member.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case in brief is that complainant purchased one Chevrolet Enjoy Diesel Car on 29/09/2014 having Chassis No.10CL2Z141 and Registration No.WB 02 AF 9863 from O.P.-2, Dulichand Motors Pvt. Ltd. at a total consideration of Rs.07,64,992/-, besides road tax, registration and insurance. That from the very first day of the purchase of the Car it started giving trouble. During the free service period spare parts had to be replaced. There were problem of brake accelerator, centre locking, gear and alignment of wheels. Due to problem of engine along with other problems, the car was repaired on several dates for covering the warranty period. After every repair of the defects the service department of Chevrolet Sales assured of trouble free service. The car was also detained in the service center for a long period. Complainant requested the O.P. to replace the defective carby a new one but O.P. did not pay heed. The spare parts are also substandard. The car suffers the following defects- a) Central Lock Problem, b) speed problem, c) brake failure, d) clutch problem, e) gear problem / jamming of shift handle, f) defective alignment of wheels, g) horn problem, h) problem of signal, i) other defects.
Complainant told the O.P. -2 to inspect the problems within warranty period but complainant did not get positive response from O.P.-2. O.P.-2 tried to cross the warranty period so that the complainant has to pay the cost of repair. Till date complainant has incurred an expense of Rs.63,789/- towards cost of repair. Complainant is to recover such expenses from O.Ps. O.Ps. did not repair the recurring problems of the car. All those defects are inherent in manufacturing defects. Complainant prays for replacement of the defective car with a new one or to repair the car by good quality parts so that the car would be defect free at least for six months, for payment of repairing cost of Rs.63,789/-, compensation for Rs.2,00,000/- and cost of Rs.25,000/-.
O.P.-1 contested the case by filing W.V. challenging the maintainability of the present complaint stating that complainant is a corporate body engaged in commercial function and in citing the observation of Hon’ble NCDRC also stated that as the said car is owned by a corporate body it is deemed to be in service of commercial functions. If it was bought for personal usefor an official it is also deemed to be commercial use. So it does not come in the purview of the C. P. Act,1986. O.P.-1 also stated that General Motors India Pvt. Ltd. should have been made a party in this case, because they are the manufacturer of the said car. O.P.-1 is not the manufacturer. It is also stated that the vehicle was purchased on 29/09/2014. The car got its first service after it covered 13000 kms. Whereas it was critically require in the interest of maintenance to have had two servicing by an aggregate of 10,000 kms. It is a gross negligence on the part of the complainant. The vehicle was maintained carelessly, so no question of fault or deficiency on the part of this O.P. arises. Two services were provided on 23/11/2015 and on 04/02/2016, even though the customer was not entitled for the same. Clutch pedal, brakes were checked on 04/02/2016 and was found functionable. After servicing no gear problem or electrical problem regarding horn was found. O.P.-1 refutes all the allegations levelled against him. It stated that there is no manufacturing defect whatsoever in the vehicle. This prayed for dismissal of the case.
O.P.-2 Dulichand Motors Pvt. Ltd. did not file any W.V. and no step is taken by O.P.-2. So the case against O.P.-2 is heard ex-parte.
Points for decision
- Is the case maintainable in the purview of C. P. Act, 1986 ?
- Whether the complainant is entitled to get the decree as claimed ?
Decision with Reasons
Upon travelling over the document on record i.e. complaint petition, Written Version, E/Chief, Questionnaire, Replies and other documents filed by the parties it is revealed that complainant purchased one Chevrolet Enjoy Diesel Car on 29/09/2014 from O.P.-2 Dulichand Motors Pvt. Ltd. at a total consideration of Rs.07,64,992/-. In paragraph-1 complainant has stated that the complainant is a private limited company registered under the Companies Act,1956. Therefore admittedly complainant is a juristic person and not a natural person. In the absence of any averment in the pleadings that the vehicle is being used substantially for the personal use of the directors or employees being beneficiaries and necessary proof and evidence in support of the same, the natural implication and common sense ruling follows that the vehicle is owned by a company and is being used by the company and such use is for the purpose of the business of the company and in that case the complaint petition is maintainable under the Consumer Protection Act, 1986 as per ruling of Hon’ble National Commission in Crompton Grieves Ltd. & Others Vs. Daimler Chrystler India Pvt. Ltd. & Others (Decided on July-2016) where the vehicle is purchased by a company and is used for the purpose of company, then in that case, the vehicle should be deemed to be for commercial purpose. Complainant has failed to show a single scrap of paper which specifies that the vehicle was meant for personal use of directors or employees of the company. So we find that complainant was using the car for commercial purpose. Complainant purchased the car for trade and commerce.
The definition of consumer as enshrined u/s 2(1)(d) of C. P. Act,1986 and on plain reading of the aforesaid definition it would be seen that the definition itself craves out an inbuilt explanation to the effect that if the services of the O.Ps. are hired or availed for commercial purpose, then the hirer of the service would not fall within the definition of service.
Considering the averment in the petition of complaint it can clearly be concluded that complainant is not a consumer within the meaning of Section 2(1)(d) or complainant within the meaning of 2(b) of C. P. Act,1986.
Accordingly to Section 2(1)(m) of C. P. Act,1986 person includes i) a firm, ii) a Hindu Undivided Family, iii) A Co-operative Society, iv) Every other Association of persons, whether registered under the Society Registration Act, 1860 (21 of 1860) or not.
A plain reading of the aforesaid definition of consumer or person makes no bone contention of the fact that apart from an individual human being, only the abovementioned categories have been brought under the fold of the 1986 Act, other not.
It appears from the cause title of complaint that complainant happens to be a company registered under Companies Act,1956. Private Ltd. companies are run by Board of Directors of the company. The directors of such company enjoy distinct entity. More so, the same does not fall amongst the abovementioned categories of organizations. We are afraid that the complainant cannot be treated as a consumer.
We think that the complaint as such is not maintainable and is liable to be dismissed.
Consequently the case merits no success.
Hence,
Ordered
That the complaint be and the same is dismissed on contest against O.P.-1 and ex-parte against O.P.-2 being not maintainable in C. P. Act,1986 as amended.
