BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 22^ND DAY OF NOVEMBER 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Replacement of all the six vehicles with brand new, undamaged vehicles of the same description, with damages towards the loss of goodwill, physical efforts and mental trauma and agony, caused due to the negligence of the OPs, amounting to Rs.25,00,000/-.

Or

2. (i) Payment of the costs of all the six vehicles including sale price amounting to Rs.18,47,696/- and repair charges of Rs.24,250/- and miscellaneous expenses of diesel, transport and food for the staff going to and fro for the said repairs of the vehicles, multiple times till date, amounting to approximately Rs.20,000/-.

2. Payment of damages amounting to Rs.25,00,000/- towards the physical efforts, financial loss, mental agony and loss of goodwill caused to the complainant.

3. Any other reliefs that this Hon’ble commission may deem fit in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-

The complainant is a proprietary firm and it is duly represented by its MD M/s Kapila Kumari. She is the authorized dealer for Hindustan Petroleum Corporation Limited, running a distributorship in the name of Kapila Enterprises, having its office at Hassan-Mysore Road, Holenarasipura, Hassan District.  The complainant deals with domestic and commercial LPG cylinder which is covered under the term essential commodity.  The main grievance of the complainant is that she has purchased commercial vehicle to carry the cylinders to various places for distribution to its customers.  The OP1 is the authorized dealer and service provider for the Piaggo Ape services of commercial vehicles and the OP2 is the manufacturer of the said vehicle.

3. The complainant required six vehicles for its business purpose and she has purchased six vehicle from OP1 by paying an amount of Rs.18,47,696/- with all surcharges, extra fittings, body building charges etc.  All the vehicles were registered at Bangalore and delivered to Hassan for body building and they became operational from fourth day of January 2023.
4. The main grievance of the complainant is that all the six vehicles purchased by the complainant have undergone repair having developed technical issues and the same was informed to OP1 and 2 by sending emails. The OP1 replied by way of email.  The invoices for the repair undertaken are also sent in addition to the mails.  The vehicles still under the warranty and being brand new vehicles have developed technical snags within a period of one month.  In view of this the complainant has to leave the vehicles for repair and it takes more than 10 to 15 days for repair. During that time the complainant could not manage the demands of the customers for the supply of the gas cylinders.  In view of this the complainant has suffered loss in her business and also last her name in the said business.  Under these circumstances, the complainant has requested the OPs for the replacement of the vehicles or to refund the amount. She also got issued legal notice. Inspite of receipt of notice the OP1 and 2 have not at all complied with the request of the complainant and they have not given any response.  The vehicles supplied by the OPs are defective vehicles and hence the vehicles have developed technical problem within a month from the date of purchase and delivery of the vehicle.  Hence the complainant has filed this complaint claiming the relief.
5. In response to the notice, OPs appear and files version. The OP1 submits that it is a partnership firm represented by their partners namely Sri.Rohith S Kumar and Sri.Bharath S Kumar.  This OP have sold 412 vehicles since 2021 and LDX +BS6 vehicle are manufactured since October 2019 and none of the customers have reported any issue.
6. The main objection raised by the OP1 is that the complaint is not maintainable and the complainant is not a customer under the C.P.Act.  She has purchased six APELDX + BS6 model vehicles for her commercial use. Though the expression commercial purpose has been defined under the statute the complainant have been in business for more than three decades which clearly states that the present vehicles purchased were exclusively for business purpose and generating revenue more than needed for a livelihood of the consumers.  
7. It is further case of the OP1 that at present six vehicles purchased by the complainant are running under warranty  the complainant could have notified to the manufacturer and OP2 of any latent or obvious defect in the product.  This OP1 has also attended all the repairs whenever the vehicles were brought for attending the repairs.  This OP1 is nothing to do or connected with the manufacturing of the vehicles but facilitates the intending purchasers.
8. It is further case of the OP1 that this complainant has taken the vehicles for repair to third party workshop without the knowledge of this OP1, while all the vehicles are under warranty and she cannot put burden for refund of the same from this OP.
9. This OP1 has travelled to Hassan for conducting the repairs of the vehicles.  When the vehicles are under good condition the alleged issues raised by the complainant has occurred after driving the vehicles recklessly and loading more than the recommended wait. Hence the OP1 prayed for dismissal of the complaint.
10. The OP2 has also filed version taken the contention regarding the maintainability of the complaint. The complaint does not fall within the definition of consumer dispute.  The complainant has running the gas agency and purchased six commercial vehicles as clearly admitted by her in para 3 and 4 of the complaint.  Hence the complainant cannot be terms as consumer as defined under sec 2(7) of C.P.Act 2019.  
11. The vehicle purchased by the complainant is a well established product in the market and over a period of years the consumers are using the product.  The complainant has purchased the vehicle after being satisfied with the condition of the vehicle and its performance.  The vehicles manufactured by this OP2 are marketed only after the prototype of the vehicle being approved by the Automotive Research Association of India.
12. The allegations made by the complainant that the vehicles are defective, baseless in the absence of production of any expert opinion in the form of evidence from a notified laboratory as required u/s 38(2)(c) of the C.P.Act 2019.   The complaint is liable to be dismissed as the complainant failed to establish that the vehicles are having manufacturing defect and also failed to establish the deficiency of service on the part of this OP. Hence OP2 prayed for dismissal of the complaint.
13. The complainant has filed his affidavit evidence and relies on 62 documents.  None represented on behalf of OP1, hence affidavit evidence of OP1 is taken as nil. Affidavit evidence of official of OP2 has been filed and OP relies on 1 documents.
14. Heard the arguments of advocate for the complainant and counsel for OP2 and perused the written arguments of the complainant and OP2. In view of the serious contention taken by the OPs regarding maintainability of the complaint, this commission has raised this issue regarding maintainability apart from passing the order on merits of the complaint.
15. The following points arise for our consideration as are:-

1. Whether the complaint is maintainable before this Commission?
2. Whether the complainant proves deficiency of service on the part of OP?
3. Whether the complainant is entitled to relief mentioned in the complaint?
4. What order?

16. Our answers to the above points are as under:

Point No.1          :  Negative

Point No.2 & 3: Do not survive for consideration in view of the finding on point No.1.

Point No.4          : As per final orders

REASONS

17. Point No.1 to 3: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence of both the parties, written arguments and documents.

18. The complainant is a proprietary firm and she is the Managing Partner has filed this complaint claiming the relief. It is undisputed fact that the complainant running a distributorship in the name of Kapila Enterprises and she is the authorized dealer of Hindustan Petroleum Corporation Limited and having the office at Holenarasipura Hassan District.  The complainant deals with domestic and commercial LPG cylinders. The complainant has purchased the six commercial vehicles to carry the cylinders to various places for distribution of its customers.  The complainant purchased the vehicle from OP1 who is the authorized dealer and the vehicles are manufactured by OP2 company. 

19. The complainant is claiming the relief on the ground that the OP1 have sold defective vehicles to her and the vehicles started technical problems within one month from the date of purchase of the vehicle and in view of this she has sustained loss in her business and also lost her name in the business.

20. The main objection raised by the OPs is that the complaint is not at all maintainable since the complainant has purchased the vehicles for commercial purpose for running the business.  Hence the complainant is not a consumer as per sec 2(7) of the C.P.Act. Hence the complaint is not maintainable.

21. On this back ground we have gone through sec 2(7)(ii)(a) of the C.P.Act which states as follows;

Explanation – For the purposes of this clause-

1. The expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.

22. The complainant has clearly admitted and stated in the complaint that she has purchased the vehicle for commercial purpose for supplying the gas cylinders and she is using multiple vehicles for distribution of the gas cylinder. Under these circumstances the vehicle usage is not at all for self employment of the complainant and the complainant is not falling under the exclusion of commercial purpose. Hence the complainant is not a consumer and the complaint is not maintainable. Therefore we answer the above point No.1 in the Negative. In view of finding on point No.1 the Point No. 2and 3 do not survive for consideration.

23. Point No.4:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is Dismissed as not maintainable. No costs.
2. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 22^ND day of NOVEMBER 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party2 – R.W.1;