The complainant has filed this complaint petition for value of vehicle Rs. 12,79,773/- economic loss of Rs. One lacs in two months, Rs. 75000/- for physical & mental agony and Rs. 50,000/ per month as economic loss.
The case of the complainant as mentioned in the complaint petition is that he purchased Tata Star Bus Model No.- LP-912 Marco Polo bearing chasis no. MAT- 454063-47624 Engine No.- 497TC92 on 30-11-2011 from ideal dealers Pvt. Ltd. Muzaffarpur for Rs. 12,89,773/- The TATA company granted guarantee for 3 lakh km . or 3 years, whichever is earlier, from the date of purchase for the whole of the vehicle whereas he also provided one year guarantee for pump etc and others parts . It is further stated that after 5 months of the purchase that is on 28-04-2012 the pump of the aforesaid vehicle was stopped and the complainant made complaint for the same to the authorized seller and service station of ideal dealers Pvt Ltd. Muzaffarpur on the same date. The further case of the complainant is that service station of o.p no.1 detached pump from the vehicle and handedover the same to the agent of the complainant with directions to produce the same before o.p no.4 Singh Bhum Diesel , authorized service station of bosh company. O.P No.4 refused to perfume his duty on the ground that the water has entered into the pump and the same has not been maintained properly., So, the complainant suffered major loss due to miss behavior of the o.ps.
Complainant has filed the following documents with the complaint petition -annexure-1- photocopy of retail invoice of ideal Dealers Pvt. Ltd. Annexure-2-Photocopy of ancillary referral form ideal dealers pvt. Ltd., annexure-3-photocopy of warranty rejection letter dated 30-04-2012, annexure-4-photocopy of carban copy of rejection of warranty, annexure-5- photocopy of investigation report annexure-6- legal notices.
O.P No. 1 & 2 appeared on 06-02-2013 and filed his w.s. with prayer to dismiss the complaint petition with exemplary cost. The o.p no. 1 & 2 has stated that the case of the complainant is not maintainable and he has no cause of action to file the case. They have further stated that there is no specific allegation of the deficiency on the part of the aforesaid o.ps and the case is suffering from non - joinder and miss-joinder of the party. They have further stated that they are not manufacturer of the parts such as tires , batteries, rubber parts, electrical equipment, and fuel-injection pump so the warranty shall not apply against them and the same will be extended by the ancillary supply as per their warranty norms. They have further stated that the whole grievance is against M/S Singh bhum diesel o.p no.4 and the aforesaid o.ps are not concerned with the FIP claim. They further mentioned that the bus is commercial vehicle and the complainant purchased the same for commercial purposes, so the complainant is not a consumer within meaning of section- 2 (1) (d) of the Consumer Protection Act . It has been further mentioned in the w.s that the to the workshop of ideal dealers Pvt. Ltd. On 12-02-2013 and the vehicle had run approximately 1,15,913 km. other allegations made in the complaint petition have been denied. The o.ps have annexed photocopy of certified copy of minutes of the meeting of the board of directors to authorized Mrs. Parth Sharthi , employee of the company as authorized signatory as annexure-A, photocopy of warranty terms and condition as annexure-B , Photocopy of service history of aforesaid bus as annexure-C, photocopy of reply of legal notice as annexure-D.
O.P No.3 appeared on 22-10-2013 and filed his w.s with prayer to dismiss the complaint petition of the complainant with exemplary cost. It has been mentioned in the w.s. that o.p no.3 is a manufacturing company of all types of commercial vehicle and passenger cars. It has been further mentioned that the complaint petition of the complainant is not maintainable and the complainant is not consumer within the meaning of the terms ‘ consumer’ as defined u/s 2 (1) (d) of consumer protection Act 1986. It has been further mentioned in the w.s that the said vehicle has extensively used by the complainant for commercial activities and as such the complainant cannot claim the status of consumer under the consumer Protection Act 1986 and he is not entitled for any relief from this forum. It has been further mentioned in the w.s that the complainant has purchased the vehicle in question from the o.p on or around 30-11-2011 and the vehicle itself is a new vehicle which required the mandatory servicing and replacement of component viz. air filter, fuel filter etc. at recommended intervals as mentioned in the operators service book given at the time of sale, for smooth running and optimum performance. It has been further mentioned that the complainant had neglected the guidelines given in the operators service book. It is also mentioned that clause-7 of the warranty does not cover normal wear and tear of the vehicle or the parts or any damage due to negligent or improper operation or storage. He has further mentioned that the o.p appeared and provided service to the aforesaid vehicle from time to time from his service centre. It has been further mentioned that the complainant purchased the said vehicle under the hypothecation and the complainant is only the beneficiary not the owner till filing of the complaint and till date of said vehicle, is under hypothecation. Hence the complainant is not the consumer and he has no locus standi to file the complaint. It has been further mentioned that the instant complaint be dismissed u/s 26 of the consumer protection act with cost for filing, frivolous, vexatious and misconceived complaint . It has been further mentioned that this forum his got no jurisdiction to entertain, try and adjudicate the present complaint. The complaint has raised issues which involves question of facts as well as law and it necessarily requires deposition of evidence and trials and can be appropriately done by a civil court. Other allegations made by the complainant has been denied. The O.P no.-3 as annexed the service history as annexure-A but the same will be read as annexure-E
O.P. No.4 appeared on 25-10-2012 but did not file any w.s. The learned lawyer for the o.ps raised issue in their arguments about maintainability of the complaint petition as the complainant doesn’t come under purview of consumer protection act 1986. The learned lawyer for the o.p no.2 & 3 has relied on decisions of Indian Oil Corporation V/s consumer protection council KERALA and another (1994) 1 SCC 397, decision of Revision Petition No.- 674,675,676 and 677/2004 of National Consumer Dispute Redressal New Delhi (Annexure-B) and Bhartni KNITTING company V/s D.H.L. world wide express courier division of Air FREIGHT Ltd. (1996) 4 SCC 704.
The learned lawyer for the complainant submits that the complainant is consumer as describe in S. 2(1) (d) of Consumer protection Act 1986 and as such he is entitled to file this complaint petition . He has further submitted that the warranty has been rejected due to water entry, and poor filtration.
The main question for determination is as to whether complainant comes within the meaning of consumer as decribed u/s 2 (1) (d) of the consumer protection Act 1986 and as such he is entitled to file this complaint petition or not? For easy reference, it is pertinent to mention the definition of consumer as mentioned in section 2 (1) (d) of the consumer protection act (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 dererred. 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 purpose for the purposes of this explanation 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;
In the case of Lakshmi Engineering works V/s P.S.G. Industrial Institute Civil Appeal No. 4193/1995 decided on 04-04-1995, the Hon’ble Supreme Court of India has been pleased to elaborate the definition of section 2(1) (d) of the consumer protection Act 1986 and the same judgment has been filed by the o.p no.3
Section 2 (d) (i) AND The EXPLANATION ADDED BY 1993 AMENDMENT ACT:-12. Now coming back to the definition of the expression ‘consumer in Section 2 (d) a consumer means in so far as in relevant for the purpose of this appeal, (1) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration (iii) but does not includes a person who buys such goods for resale or for any commercial purpose. The expression “resale” is clear enough. Controversy has, however, arisen with respect to meaning of the expression “commercial purpose.” It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. “Commercial” denotes “pertaining to commerce” (Chamber’s Twentieth Century Dictionary): it means “connected with, or engaged in commerce; mercantile; having profit as the main aim” (Collies English Dictionary) whereas the word “commerce” means “financial transactions especially buying and selling of merchandise, on a large scale” (concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit” he will not be a “consumer” within the meaning of Section 2 (d) (i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion – the expression “large-scale” is not a very precise expression – the parliament stepped in and added the explanation to Section 2 (d) (i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose” – a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others’ work for consideration or for plying the car as taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition or expression purpose” would not yet take the purchaser out of the definition of expression “consumer”. If the commercial use is by the purchase himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a “consumer”. In the illustration given above, if the purchase himself works on typerwriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not ceases to be a consumer for the purposes of the Act. The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., “uses them by himself, “exclusively for the purpose of earning his livelihood” and ‘by means of self employment” make the intention of parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasis what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions “used by him”, and “by means of self-employment” In the explanation. The ambiguity in the meaning of the words “for the purpose of earning his livelihood”, is explained and clarified by the other two sets of words.
Vehicle in question that is Star Tata bus is a commercial vehicle. The complainant has not asserted in his complaint petition that the services of the aforesaid TATA Bus was availed by him exclusively purposes of earning his livelihood by mean of self employment as described in explanation in section 2 (1) (d) of consumer protection act 1986. No evidence has been adduced by the complainant on this point either oral or documentary. The o.p no.-3 that is Tata motors has asserted in his w.s that the vehicle was run for 1,99,869 km. for short span of time on perusal of service history annexure-A of o.p No.3 Tata motors (annexure-E as observed in the order) it transpires that the vehicle in question was run of 1,99,896 km. since 28-04-2012 that is within 5 months which also goes to show that vehicle in question was used for commercial purpose. No evidence has been adduced by the complainant against this fact to show that the vehicle in question was being used his self employment and not for commercial purposes. On the basis of above discussions we are of the opinion that the complainant is not consumer within the meaning of 5. 2 (1) (d) of consumer protection Act 1986 and as such the complaint petition is not maintainable.
On the basis of above discussions we are of the opinion that the complainant is not consumer within the meaning of section 2 (1) (d) of the consumer protection act 1986 and the case is not maintainable. In the circumstances the same is dismissed without cost.
