Tripura

West Tripura

CC/29/2023

Sri Ajit Das - Complainant(s)

Versus

Progressive Automobiles Pvt. Ltd. Represented by its Manager. - Opp.Party(s)

Mr.S.Banik, Mr.S.Saha

02 Nov 2023

ORDER

 
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: WEST TRIPURA :  AGARTALA
 
 
CASE   NO:   CC- 29  of  2023
 
 
Sri Ajit Das,
S/O- Sri Nikunja Behari Das,
Dwarikapur, P.O.- Dwarikapur, 
Kalyanpur- 799203, P.S.- Kalyanpur, 
District- Khowai Tripura. .................Complainant.
 
 
-VERSUS-
 
 
Progressive Automobiles Pvt. Ltd.,
Represented by its Manager,
  Nagichara, By-pass Road, 
NH- 44, Agartala- 799004,
P.S. Srinagar, P.O. Nagichara,
District- West Tripura, …..............Opposite Party.
 
 
 
    __________PRESENT__________
 
 SRI GOUTAM DEBNATH
PRESIDENT,
  DISTRICT CONSUMER  
DISPUTES REDRESSAL COMMISSION,
      WEST TRIPURA, AGARTALA. 
 
DR (SMT) BINDU PAL
MEMBER,
  DISTRICT CONSUMER 
DISPUTES REDRESSAL COMMISSION, 
  WEST TRIPURA, AGARTALA.
 
SRI SAMIR GUPTA
MEMBER,
  DISTRICT CONSUMER  DISPUTES  
REDRESSAL COMMISSION,
WEST TRIPURA,  AGARTALA. 
 
 
 
C O U N S E L
 
 
For the Complainant : Sri Sagar Banik,
  Sri Saikat Saha,
  Learned Advocates. 
 
For the O.P. : Sri Subhajit Paul,
   Learned Advocate.
 
 
 
ORDER  DELIVERED  ON:          02 .11.2023.
 
F I N A L    O R D E R
1. Sri Ajit Das here-in-after called the Complainant has filed this complaint alleging that he purchased a motor vehicle bearing registration No- TR 06 A 1923 on 22.01.2022 from the O.P. with warranty for 3 years or 3,00,000 Kilometers or 3000 hours which ever is less. On 10.02.2023 suddenly the engine of the vehicle stopped functioning. The vehicle was shifted to the garage of the O.P. On 17.02.2023 the O.P. informed that the engine oil filter of the vehicle was found to be damaged due to over heating issue and such fault was attributable to the complainant hence, the O.P. denied to repair the vehicle free of cost. 
1.1 The complainant sent legal notice but to no good. Hence, this complaint.
 
2. The O.P. filed written objection mainly on the 2 grounds that the complaint is not maintainable as the complainant purchased and used the vehicle for commercial purpose and that there has been violation of warranty condition. 
 
3. Both the parties submitted evidence on affidavit with documents.
 
4. During the course of argument Learned Counsel of the complainant relied on the decision of the Hon'ble National Consumer Disputes Redressal Commission in Action Construction Equipment and Another Vs. Bablu Mridha reported in 2012 Vol. IV CPJ 245 and argued that although the vehicle was driven by a driver but it was the sole earning source of the complainant, as such he used the vehicle by way of self employment for the purpose of earning his livelihood. 
 
4.1 Per contra Learned Counsel of the O.P. argued that the vehicle was used for commercial purpose by employing a driver as such this complaint is outside the purview of the consumer dispute and also that there has been violation of warranty condition particularly condition no. 7 , 10 & 14. 
 
5. The following points are taken up for discussion and decision:-
(i) Whether under the factual circumstances the complainant is a consumer?
(ii) Whether there has been violation of warranty condition?
 
6. Both the points are taken up together.
6.1 Admitted position is that the vehicle developed disturbance during the warranty period and the complainant used o run the vehicle by employing a driver but pleaded in his complaint that this was his sole earning source. 
6.2 In Action Construction Equipment Ltd.   (Supra), Hon'ble National Commission was pleased to dismiss the Revision preferred by the Revision Petitioner  mainly on the ground that in the original complaint the complainant all  through pleaded that this was his sole earning source as he employed himself by letting out Construction Equipment with own driver to different companies. This was dydrolic mobile crane. The respondent did not file written objection before the District Forum. The District Forum ultimately allowed the complaint. The respondent preferred appeal before the Hon'ble State Commission. The Hon'ble State Commission relied on the judgment in Laxmi Engineering Works Vs. PSG Industrial Institute 1995 Vol. II CPJ 1 (SC) wherein it was held by the Hon'ble Supreme Court that if a buyer takes assistance of one or 2 persons to assist him in operating the vehicle or machineries he does not cease to be a consumer as such the appeal was dismissed. Being aggrieved the original respondent preferred revision before the Hon'ble National Commission. The Revision petition was dismissed particularly on the ground that there was concurrent finding of facts by the District Commission as well as State Commission regarding the capacity of the complainant that he was a consumer and also on that ground that the respondent was having only 2 machines and the same were used by the respondent for earning his livelihood. As such he was not engaged in commercial activities.
 
6.3 The case at hand is not guided by the Consumer Protection Act, 1986. Rather, it is under the Consumer Protection Act, 2019. The definition of Commercial purpose U/s 2(i) clause (d) explanation of 1986 Act and the definition Commercial purpose u/s 2(7) (a) the definition Commercial purpose are slightly different. Under the 2019 Act, hiring service for Commercial purpose has been excluded in the definition of Commercial purpose whereas it was there under the 1986 Act. In case of deficiency if any service is hired as per the Act even if for Commercial purpose, a complaint under the Act is maintainable. 
 
6.4 Meaning thereby, the obstruction to take recourse under the Consumer Protection Act in case of deficiency in service has been done away with/under the new Act.    
 
6.5 Now the question is whether there has been deficiency in service in the factual matrix of the present case. 
6.6 Admittedly, the vehicle developed disturbance during the warranty period. 
6.7 On perusal of the warranty condition particularly condition no. 7, 10 & 14 it appears that the disturbance of the engine was not normal wear & tear as per condition no. 7 as observed by the service engineer. The vehicle was not repaired outside to attract the condition no. 10  and condition  no. 14 is not at all applicable in the case. The O.P. maintains a printed form. The service engineer has mechanically given tick mark to item no. 6 that the engine oil filter was damaged as the vehicle met with accident. Again item no. 7 that there was operational failure due to normal wear & tear. Both this items can not stand together. Item no. 8 was given tick mark is rather ridiculous for the reason that even without filling up the blanks as to how many kms the vehicle travelled  tick mark was given in item no. 8  of the printed form. 
 
6.8 As corollary to the discussion above although we do not completely bank upon the ratio decided by the Hon'ble National Commission in Action Construction  Equipment Ltd. (Supra) for the reason that U/S 21(b) of the 1986 Act the National Commission had specific power of revision from the order of the State Commission either in a pending case or in a disposed of case, whereas under the Act of 2019 Hon'ble National Commission has appellate power but no revisional power although Hon'ble State Commission has such revisional power U/s 47(b) of the Act. 
 
6.9 As a result of the discussion above, we have no hesitation to conclude that although the vehicle was driven by a driver employed by the complainant but it was the only source of his livelihood, hence the complainant used the vehicle by way of self employment to earn his livelihood, as such it is consumer dispute and within the jurisdiction of this Commission. Further the O.P. was not justified in refusing to repair the vehicle for the reason as attributed by the O.P. as such the O.P. is guilty of deficiency in service. 
 
7. In the result, it is ordered that the O.P. shall repair the vehicle within 15 days from the date of this order and shall also pay a sum of Rs.25,000/- to the complainant as compensation which in inclusive of litigation cost. Failing which the O.P. shall be liable to pay compensation to the complainant @ Rs.1000/- per day from today till the date of actual repairing and handing over the vehicle to the complainant in running condition.   
8. The case stands disposed off.
9. Supply copy of this Final Order free of cost to the complainant and the Opposite parties.
 
Announced.
 
 
 
SRI  GOUTAM DEBNATH
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL COMMISSION,
WEST TRIPURA,  AGARTALA
 
 
 
 
DR (SMT)  BINDU  PAL
MEMBER, 
DISTRICT CONSUMER DISPUTES 
REDRESSAL COMMISSION, 
WEST TRIPURA,AGARTALA
 
 
 
SRI SAMIR  GUPTA
MEMBER,
 DISTRICT CONSUMER DISPUTES  
REDRESSAL COMMISSION,
WEST TRIPURA,AGARTALA.

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