Andhra Pradesh

Chittoor-II at triputi

CC/11/2018

K.Reddy Bhaskar, S/o Venkataramana - Complainant(s)

Versus

M/s Eicher Trucks and Busses, LVE Commercial Vehicles, VP, Rep. by its authorized signatory - Opp.Party(s)

A.Sudarsana Babu

26 Oct 2018

ORDER

Filing Date: 07.02.2018

Order Date:26.10.2018

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.T.Anand, President (FAC)

               Smt. T.Anitha, Member

 

 

 

FRIDAY THE TWENTY SIXTH DAY OF OCTOBER, TWO THOUSAND AND EIGHTEEN

 

 

 

C.C.No.11/2018

 

 

Between

 

 

K.Reddy Bhaskar,

S/o. Venkataramana,

Hindu, aged about 49 years,

D.No.12-234, Mudimadugu village,

V.Kota Post and Mandal,

Chittoor District.                                                                              … Complainant.

 

And

 

 

1.         M/s. Eicher Trucks and Busses,

            LVE Commercial Vehicles, VP

            Rep. by its authorized signatory,

            Having its Corporate office at

            No.96, Institutional Area, 3^rd Floor,

            Sector-32,

            Gurgaon – 122 001,

            Haryana State.

 

2.         M/s. Eicher Trucks and Busses,

            LVE Commercial Vehicles, VP

            Rep. by its authorized signatory,

            Having its registered office at

            3^rd Floor, Select City Walk,

            A3 Saketh,

            New Delhi – 110 017.

 

3.         Hitech Motors,

            Rep. by its authorized signatory,

            Having its office near Auto Nagar,

            Renigunta Road,

            Tirupati – 517 506.                                                              …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 10.10.18 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.A.Sudarsana Babu, counsel for complainant, and Sri.K.V.Bhaskar, counsel for opposite parties 1 and 2, and opposite party No.3 remained ex-parte, and having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section –12(1) of C.P.Act 1986, praying for direction to the opposite parties to pay Rs.2,35,360/- along with interest at 24% p.a. right from the day of its payment i.e. 23.05.2016 till the date of realization, to pay compensation of Rs.50,000/- towards damages for undergoing mental agony due to deficiency in service on their part and to pay costs of the complaint.

            2.  The complaint allegations are as follows:-  The complainant in order to eke-out his livelihood under self-employment purchased one Eicher PRO, 1110H cab and FSD/DSD-BSIII model vehicle of golden brown colour, which is the product of opposite parties 1 and 2, with opposite party No.3, under hypothecation to Indus Ind Bank Ltd., vide invoice No.VS/00364 dt:20.10.2014 for Rs.12,76,741/-. Opposite party No.3 has provided a service offer letter dt:21.12.2014 with offer start date as 30.12.2014 and with offer expiry date as 29.12.2016. As per the service offer letter, service can be availed at any service centre i.e. authorized service centre of VECVL. The vehicle was duly registered vide registration certificate dt:06.11.2014 and its registration No.AP-03-PC-8899 with validity period from 06.11.2014 to 05.11.2016 and the vehicle was also insured with Chola MS vide policy No.3379/01098160/000/01 with validity period commencing from 20.10.2015 to midnight 19.10.2016.

            3.  It is submitted that while the vehicle was proceeding from Chittoor to Salem on 16.05.2016 at Thopur ghat, it brokedown. When the field officer Jagadeesh at Madanapalle was contacted to inform about the incident, he advised to contact opposite party No.3. When opposite party No.3 was contacted over phone from the place where the vehicle was brokedown, they intimated him to approach nearby authorized centre by name Jailaxmi Auto Works and Agencies Pvt. Ltd., Attur Salem, bye-pass road, Pinangukarar Thottam, seelanaikenpatti (PO), Salem. When the complainant contacted the said Jailaxmi Auto Works, they responded immediately and get repaired the vehicle by charging Rs.2,35,360/- under various heads vide invoice No.15JC00032 dt:23.05.2016, vide job card No.1504R00233 dt:18.05.2016. Though the said Jailaxmi Auto Works was informed about the purchase of the vehicle with Eicher authorized store and showed service letter which covers the repairs, it refused for free service stating that the vehicle was purchased in Andhra Pradesh and as such they cannot provide free service and as such the complainant was forced to pay the amount. Opposite party No.3 told the complainant to produce the original bills to claim the amount. When the original bills were submitted to opposite party No.3 for claim, they have not chosen to settle the claim on untenable grounds. A legal notice dt:17.01.2017 was caused to the opposite parties, for which opposite party No.3 issued reply dt:22.01.2017 stating that payment made at one workshop and expecting reimbursement in another workshop is not part of their system and they cannot entertain such claims and further stated that if at all any amount is payable, it is Jailaxmi Auto Works and Agencies only as the vehicle was got repaired at that workshop. The complainant is a consumer and there is negligence and deficiency in service on the part of opposite parties, as such he preferred this complaint.

            4.  Opposite party No.3 remained exparte. Opposite parties 1 and 2 filed common written version contending as follows – At the outset, complaint allegations are denied. It is specifically contended that complainant is not a consumer and as such complaint is not maintainable. The averments in para.3 of the complaint that in order to eke-out his livelihood as self-employment purchased Eicher vehicle, which is the product of opposite parties 1 and 2 with opposite party No.3 under hypothecation to Indus Ind Bank is denied. The averment that opposite party No.3 has provided a service offer letter dt:21.12.2014 with the offer start date as 30.12.2014 and offer expiry date as 29.12.2016 and as per the service offer letter, service can be availed at any of the service center i.e. authorized service center of VECVL is false. The registration and insurance coverage of the vehicle as stated in para.5 of the complaint is also denied. Similarly, the allegations in para.6 of the complaint that the vehicle broke down at Thopur ghat near Salem and that the same was informed to opposite party No.3 over phone and that they advised him to approach nearby authorized centre by name Jailaxmi Auto Works and Agencies Pvt. Ltd., Attur Salem Bye pass road, Salem, that the vehicle was repaired and Rs.2,35,360/- was charged by the said  Jailaxmi Auto Works and Agencies Pvt. Ltd., under various heads vide invoice No.15JC00032 dt:23.05.2016, vide job card No.1504R0023 dt:18.05.2016 and that they refused to do free service to the vehicle as per service letter and that the same was informed to opposite party No.3, who advised the complainant to produce original bills for making claim are all false. It is further denied that when the original bills were submitted to opposite party No.3 for claim they have not chosen to settle the claim on untenable grounds. It is also denied that a legal notice was issued to opposite parties and opposite party No.3 caused reply stating that payment made at one workshop expecting reimbursement at another workshop is not a part of their system and they cannot entertain the false claim, and if at all any amount is payable it is  Jailaxmi Auto Works and Agencies Pvt. Ltd. only. It is denied that at the instance of opposite party No.3, the vehicle got repaired in Jailaxmi Auto Works and Agencies Pvt. Ltd., which is also Eicher authorized point. The complainant assuming that he is a consumer filed this false complaint. Infact he has purchased the vehicle for commercial purpose and getting profits out of it, and so he cannot be considered as a consumer. Infact he also purchased another vehicle bearing No.AP-03-TC-7288 with opposite party No.3. When the complainant had purchased two vehicles and doing transport business, he cannot be called as a consumer. He has not filed any document to show that he has purchased the vehicle under self-employment scheme. The complainant is therefore not a consumer within the meaning of the term consumer as defined under Section-2(1)(d) of C.P.Act. The opposite parties relied on a decision rendered by Hon’ble Supreme Court in the case of Laxmi Engineering Works vs. PSG Industries Institute [1995 II CPJ I (SC)] in support of their case that the complainant is not a consumer. The said Jailaxmi Auto Works and Agencies Pvt. Ltd. being necessary party was not made a party in the complaint. The complaint therefore is liable to be dismissed for non joinder of necessary parties. It is therefore prayed to dismiss the complaint.

            5.  The complainant filed evidence affidavit and got marked Exs.A1 to A6. One Laxman Singh Raghuvanshi, Legal Officer of Eicher Company, filed evidence affidavit on behalf of the company and got marked Exs.B1 to B3.

            6.  The points for consideration are:-

            (i).  Whether the complainant is a consumer within the meaning of Section-

                  2(i)(d) of C.P.Act? If not, the complaint is liable to be dismissed?                          

            (ii). Whether there is deficiency in service on the part of opposite parties? If so,

       to what extent the complainant is entitled for the reliefs sought?

7.  Points (i) and (ii):-  The contention of the counsel for complainant is that  complainant (P.W.1) purchased the subject vehicle for Rs.12,76,741/- from Hitech Motors, Tirupati, vide Ex.A1, and running the same for his livelihood, and as such P.W.1 comes under the definition of Section-2(i)(d),  C.P.Act. Whereas the contention of opposite parties is that, as per the evidence affidavit filed by R.W.1, that the subject vehicle is purchased by P.W.1, is meant for commercial purpose and as such P.W.1 cannot be termed as consumer in view of Section-2(i)(d) of C.P.Act, which excludes from its purview a person who obtains such goods for commercial purpose.

8.  The counsel for opposite parties placed reliance on the decision reported in 1995 II CPJ 1 (SC) between Laxmi Engineering Works vs. P.S.G. Industrial Institute, wherein the Hon’ble Apex Court discussed the meaning of ‘commercial purpose’ mentioned in Section-2(d) of C.P.Act. In the said decision the Hon’ble Apex Court held that a person who buys goods and use them himself, exclusively for the purpose of earning his livelihood, by means of self employment is within the definition of the expression ‘consumer’ and as per facts of the case referred in the decision, the Hon’ble Apex Court held that “having regard to the nature and character of the machine and the material on record that it is not goods which the appellant purchased for use by himself exclusively for the purpose of earning his livelihood by means of self employment as explained herein above”. This citation was pressed into service by the counsel for opposite parties in order to contend that in the instant case on hand P.W.1 not only is having the subject vehicle, but he is also having another vehicle which is being run for commercial use and as such P.W.1 cannot take shelter under Section-2(d) of C.P.Act. Ex.B2 pertains to vehicles registrations in respect of vehicle bearing No.AP-03-TC-7288 and AP-03-TE-6288 standing in the name of P.W.1 and the vehicle class is described as Contract Carriage. Ex.B1 is the Sale Certificate showing that the Omni bus was delivered to P.W.1 by Hitech Motors Pvt. Ltd., Renigunta Road, Tirupati. The said vehicle is described as Omnibus having seating capacity of 26 including the driver. The contention of complainant is that the vehicle is purchased for his livelihood. The opposite parties relied on another decision reported in 1997(1) SCC 137 between M/s.Cheema Engineering Services vs. Rajan Singh, wherein it is held that “whether the respondent has been using the aforesaid machine for self-employment is matter of evidence. Unless there is evidence and on consideration thereof it is included that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks in a commercial way may also be to earn livelihood, but merely earning livelihood in commercial business does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. The burden is on the respondent to prove them. Therefore, the tribunals were not right in concluding that the respondent is using the machine only for self-employment and that, therefore, it is not a commercial purpose. The orders of all the tribunals stand set aside. The matter is remitted to the District Forum. The District Forum is directed to record evidence of  the parties and dispose it of in accordance with law”.  In the instant case on hand, the complainant’s case is that the subject vehicle is run for his livelihood. When two vehicles are in the name of P.W.1 and one is Omnibus having 26 seating capacity, it is for him to explain and discharge the burden by showing that the two vehicles are being run for his livelihood and not for any profits. In the absence of that piece of evidence, it cannot be said that P.W.1 is a consumer within the definition of Section-2(i)(d) of C.P.Act.

9.  Even assuming that complainant is a consumer for argument sake, still P.W.1 cannot succeed in this case for the reason that he failed to add Jailaxmi Auto Works and Agencies Pvt. Ltd. as a party to the complaint. The case of the complainant is that the subject vehicle broke down near Salem and when he contacted opposite party No.3 for advise, they inturn advised to contact Jailaxmi Auto Works and Agencies Pvt. Ltd., which is situated nearer to the place where the vehicle broke down and asked the complainant to take the vehicle to the said workshop for repairs and service, and as per the advise of opposite party No.3, the vehicle was taken to Jailaxmi Auto Works and Agencies Pvt. Ltd., but instead of doing free service, they charged Rs.2,35,360/- as per Ex.A3. No doubt opposite parties have admitted that Jailaxmi Auto Works and Agencies Pvt. Ltd., is the authorized workshop of VECVL. But the opposite parties contended that expecting reimbursement in another workshop and paying amount at one workshop is not part of their system and such claims cannot be entertained. As per Ex.A2 Service Offer, in Annexure-(1) it is stated that the subject vehicle is covered from offer start date 30.12.2014 to offer expiry date 29.12.2016. There is mention of annual kms.80000 and the start km is recorded as 8200, and end km of the engine is mentioned as 1,68,200 (80000x2years). As per Ex.A3, job type is shown as paid service by Jailaxmi Auto Works and Agencies (P) Ltd. No doubt breaking down of the vehicle occurred in the period mentioned in Ex.A2 service offer letter, but under what circumstances Jailaxmi Auto Works and Agencies (P) Ltd., charged the amount instead of doing free service has to be explained and the best person to explain the reasons for charging the amount instead of doing free service is Jailaxmi Auto Works and Agencies (P) Ltd. The complainant did not make them as party in the case. The counsel for complainant argued that admittedly Jailaxmi Auto Works and Agencies (P) Ltd. is the authorized workshop of  VECVL and therefore there is no need to implead them. Even as per Ex.A2 there are certain obligations, which have to be fulfilled by the customer. As already stated by us, the proper person is Jailaxmi Auto Works and Agencies (P) Ltd., who can explain the reasons for charging the amount from the complainant. So, viewed from any angle, we are of the view that the complainant is not entitled for any relief sought in the complaint.

10.  In the result, complaint is dismissed. No costs.

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 26^th day of October, 2018.

 

       Sd/-                                                                                                                      Sd/-                                           

Lady Member                                                                                               President (FAC)

 

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: K. Reddy Bhaskar (Evidence Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: Laxman Singh Raghuvanshi (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Self attested photo copy of the Vat Invoice given by  HITECH MOTORS, Renigunta Road, Tirupati. Dt: 20.10.2014.
	Service Offer Letter given by Authorized Signatory, VE Commercial Vehicles Limited in Original. Dt: 21.12.2014.
	Self attested photo copy of Vat Invoice given by the Authorized Signatory, Jailaxmi Auto Works & Agencies (P) Ltd., Salem, Tamil Nadu. Dt: 23.05.2016.
	Office copy of Legal Notice. Dt: 17.01.2017.
	Acknowledgement Card in Original.
	Reply given to Legal Notice Dated 17.01.2017. Dt: 22.01.2017.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Photo copy of Sale Certificates (1. Class of Vehicle: OMINIBUS Dt: 03.01.2017, 2. Class of Vehicle: OMINIBUS, Dt: 12.05.2014, 3. Class of Vehicle: Goods Carriage, Dt: 20.10.2014) given by the Authorized Signatory, CJN HITECH MOTORS PRIVATE LIMITED, Renigunta Road, Tirupati Rural, Chittoor District.
	Photo copy of Vehicle Registration search from the A.P. Transport Department Online Services Site (Net downloaded copies of the 3 vehicles) in the name of the Complainant.
	Photo copy of Power of Attorney (In the name of O.P.1). Certificate issued Dt: 12.01.2018.

 

 

 

                                                                                                                        Sd/- 

                                                                                                                President (FAC)

    

     // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

       Dist. Consumer Forum-II, Tirupati.

 

         

    

   Copies to:- 1.  The complainant.

                        2.  The opposite parties.