BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

C.C.No.150/2011     Filed on 09.05.2011

ORDER DATED: 16.03.2021

Complainant:

(by Adv. Pachalloor P. Mohanan)

Opposite parties:

(by Adv. S. Reghukumar)

(by Adv. Prabhu Vijayakumar)

The order delivered on 16.03.2021

ORDER

SRI. VIJU  V.R.,  MEMBER:

The complainant has presented this complaint before this forum under section 12 of the Consumer Protection Act, 1986. The complainant is the owner of a TATA INDICA car bearing chasis No.MAT 6001429PN97052 and engine No.475D1D105NQZP88672.  The vehicle has been plying as taxi.  The 1^st opposite party is the manufacturer of TATA cars, the 2^nd opposite party is the division of the 1^st opposite party dealing with the passenger cars, the 3^rd and 4^th opposite parties are the authorised service centres of the 1^st opposite party.   The complainant purchased the car on 11.12.2009 from the authorised dealer of the 1^st opposite party, R.F. Motors, Kochi.  Thereafter the vehicle has been duly serviced from the authorised service centres of the 1^st opposite party as per its guidelines.   On 12.12.2010 the vehicle was taken to the service centre of 3rd opposite party because the vehicle has been showing some problems in the 4^th and 5^th gear shifting.  The vehicle was having warranty coverage at that time. The 3^rd opposite party told that the gear box has to be replaced to solve the complaint.  So the vehicle was kept in the yard of the 3^rd opposite party for two weeks saying that  communication has to come from the head office (the 1^st opposite party) to replace the gear box.  After the lapse of two weeks at the instance of the 3^rd opposite party the vehicle was towed to the yard of the 4^th opposite party, Vazhayila, Thiruvananthapuram saying that the facilities to repair the complaints of the nature of the complainant’s car is available only in the workshop of the 4^th opposite party.  On 4^th February, the vehicle was returned after the repair work.  They replaced the wheel of the 4^th and 5^th gear only and the complainant was made to pay Rs.1,672/-.  The vehicle was kept there all these period saying that communication and confirmation to do the work had to come from the head office, since the vehicle is in the warranty coverage period.  After one week from the first repair work the vehicle showed the same complaint in the shifting of 4^th and 5^th gear.  So, again the vehicle was taken to the 4^th opposite party and returned after the repair work on 01.03.2011.  Unfortunately the complaint in the gear shifting was persisting even after the second repair work.  Therefore on 08.03.2011 the vehicle was again taken to the 4^th opposite party and did the repair works in the gear box.  The problem in the gear box persists even after the third repair in the authorised service centres of the 1^st opposite party.  The complainant got reliable technical advice that the complaint in the gear box is not because of any other reason but due to manufacturing defect.  It was informed that changing of wheels of the 4^th and 5^th gear will not solve the present complaint.  The new wheels will not synchronise with the other wheels which are not new.  So the only remedy is to replace the gear box.  From 08.03.2011 the vehicle has been kept in the service centre of the 4^th opposite party.  While keeping there the front left side door glass was broken.  That was broken when the vehicle was in the custody of the 4^th opposite party.  So the 4^th opposite party disowned the liability and asked the complainant to replace the glass at her own expense.   The complainant send a legal notice to the opposite parties regarding the deficiency of service from the part opposite parties.   Only 1^st opposite party has send reply to this notice.   It is further submitted by the complainant that there is deficiency of service from the opposite parties as the manufacturer and authorised service centres of the manufacturer.  It is because of the deficiency of the service from the opposite parties the complainant was forced to keep the vehicle in the service centres for three months.  In that account he was forced to suffer loss of three months income from the car, and loss of proportionate share of insurance premium, tax and permit charges which will come to Rs.49,000/-.. The act of opposite parties amounts to deficiency in service and also there is manufacturing defect of the gear box, for that effect she had filed this complaint.

            The opposite parties 1 to 4 entered appearance and filed version. The 1^st and 2^nd opposite parties averred that the complainant is not maintainable as the complainant is plying the vehicle as a taxi engaging paid drivers so that she is not a consumer under section 2(1)(d) of Consumer Protection Act.   The TATA Indica car purchased by the complainant, is of the highest quality and the complainant has taken delivery of the same, after being satisfied with the condition of the vehicle and its performance.  It is submitted that the said vehicle was delivered after carrying out the Pre-delivery Inspection (PDI) of the vehicle.  The Automobile Research Association of India (in short ARAI), Pune is the only approved research institution for the automobiles under the Ministry of Industries, Government of India.  ARAI issues certificates to all vehicles manufactured in India, after thorough tests and reliability for commercial production.  The complainant has filed this baseless complaint alleging problems in the vehicle without having produced any expert opinion/documentary proof in the form of evidence to prove that the same suffers from the problems as alleged, or to establish any manufacturing defect in the vehicle.    As per the records available with the opposite parties 1 and 2 it is submitted that the vehicle of the complainant had reported to the workshop of the 3^rd opposite party on 13.12.2010 with a complaint in the gearbox of the vehicle.  The 3^rd opposite party having noticed that the entire services had been carried out at the workshop of the 4^th opposite party and as the warranty of the vehicle had not expired sought appropriate instructions from the opposite parties 1 and 2 as to the course of action to be adopted.  As per the advice of the opposite parties 1 and 2, the vehicle of the complainant was taken by the 4^th opposite party to its workshop on 30.12.2010 and they had carried out the necessary repairs under warranty.  The complainant had thereupon taken delivery of the vehicle and expressing in writing that she was satisfied with the repairs carried out on the vehicle.  It is further pertinent to state that the complainant had thereupon taken the vehicle to the workshop of the 4^th opposite party on 22.07.2011 after the vehicle had covered 36854kms.  On the said day the complainant had no grievance with the gearbox of the vehicle.  It is therefore submitted by the opposite parties 1 and 2 that the gearbox of the vehicle of the complainant does not suffer from any defect, much less in manufacturing defect as alleged.  There has been no deficiency in service or unfair trade practice on the part of the opposite parties 1 and 2 and hence the opposite parties 1 and 2 are in no way liable or responsible to compensate the complainant.   Hence the complaint may be dismissed with costs.

            The 3^rd opposite party has taken the contention that the complainant is operating the vehicle as a taxi engaging paid drivers.  The complainant hence cannot be treated as a consumer as defined under section 2(1)(d) of the Act.   The complainant was not regularly servicing the vehicle from the authorized service centre of 1^st opposite party.  The complainant had brought her vehicle on 13.12.2010 to the workshop of 3^rd opposite party with a complaint that there was abnormal noise from the gear box.  It was noticed that all the previous services of the vehicle had been carried out at the workshop of the 4^th opposite party and that the warranty period of the vehicle had also not got over.  Hence 3^rd opposite party had informed the office of the 1^st opposite party at Kochi of this fact.  The 1^st opposite party had instructed the 3^rd opposite party to hand over the vehicle of the complainant to the 4^th opposite party for attending to the necessary repairs.  It is also submitted that the complainant had been informed of this fact and with her approval and permission; the 4^th opposite party on 30.12.2010 removed the vehicle from the workshop of 3^rd opposite party.   It is further submitted by the 3^rd opposite party that after 30.12.2010 they have no information regarding the manner in which the vehicle of the complainant was attended by the 4^th opposite party.   The 3^rd opposite party has replied to the legal notice send by the complainant.   There is no deficiency in service from the part of 3^rd opposite party; hence the complaint may be dismissed with costs to the 3^rd opposite party.

The 4^th opposite party in their version stated that the complainant’s vehicle was towed in for service and repair of the gear box.    The vehicle was towed in to the 4^th opposite party’s service centre from the service centre of the 3^rd opposite party.  When the vehicle was brought in, the gear box was in a dismantled state and fully split up.  The service personnel’s attached to 4^th opposite party’s workshop had requested the manufacturer for replacement of the gear box due to the insistence and demand from the complainant even though only few internal parts needed replacement.  The manufacturer had only approved the replacement of child parts in the gear box.  Since any warranty work and replacement can be done only after the approval and go ahead from the manufacturer, 4^th opposite party had replaced the child parts inside the gear box.  The vehicle was taken delivery by the complainant but he again brought back the vehicle for service since he was not satisfied.  The 4^th opposite party had again re-checked and serviced the vehicle and the complainant took delivery of the vehicle in full satisfaction.  The gear box of the vehicle has been completely serviced and is in ship shape.  It is pertinent that the complainant’s vehicle is plying as taxi.  There is no complaint in the gear box of the vehicle after service by the 4^th opposite party and any allegation to the contrary has been done only to create a cause of action.  The vehicle was serviced and the aforesaid repairs to the gear box was done at 27950kms and the last service of the vehicle done at R.F. Motors after the said repair was at 36854kms, and this disproves the allegation of the complainant that the vehicle is still having problems with the gear box.  The charge of Rs.1,672/- allegedly charged from the complainant is towards consumables and no other charge was taken from the complainant.  Regarding the allegation of non-replacing of side door glass, 4^th opposite party had replaced the same even though the breaking of the window glass had occurred due to misaligned and badly repaired door after an accident repair in an unauthorised workshop by the complainant.  But still since the incident of breakage of glass happened while the vehicle was kept in 4^th opposite party’s workshop they had replaced the same.  Any warranty repair work or replacement of parts under warranty can only be done after previous sanction and approval by the manufacturer, the 1^st opposite party.  So if any delay has occurred the same has happened only due to the aforesaid reason.  The 4^th opposite party had rectified the problem and complaint of gear box of the complainant’s vehicle to his full satisfaction and there is no deficiency in service or unfair trade practice on the part of 4^th opposite party.   Hence the complaint may be dismissed with compensatory costs to 4^th opposite party.

Issues to be ascertained:

1. Whether the complaint is maintainable?
2. Whether there is deficiency in service or manufacturing defects from the side of opposite parties?
3. Whether the complainant is entitled to get the reliefs?

Issues (i) : 

The main contention raised by opposite parties 1 to 4 is that the complainant is not a consumer under section 2(1)(d) of Consumer Protection Act. Section 2(1)(d) reads as under:

   “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 deferred 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];

            Any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self employment, such purchase of goods is not a commercial purpose.  So there should be evidence to show that the complainant has purchased the vehicle for her livelihood.   But the complainant has not produced any evidence to show that she had purchased the taxi for her livelihood. The complainant had not even mentioned anything about her livelihood in the complaint or in the affidavit which was filed in-lieu of chief examination by her husband. In the deposition of PW1, during cross-examination he has deposed that taxi Bbn HmSn-¡p-¶-Xn-\tà h­n hm§n-bXv (Q) D]-Po-h-\-¯n\p th­n (A) `mcybv¡v license Dt­m (Q) Cà (A) Rm³ driver BWv.  F\n¡v license D­v (A) taxi HmSn-¡p-¶-Xnsâ badgeþpw D­v.  Cu h­n Xm¦-fmWv HmSn-¡p-¶Xv F¶v ]cm-Xn-bntem affidavit-tem ]d-ªn-«nà F¶p ]d-bp¶p (Q) ]d-ªn-«p­v (A) A{]-Imcw ]d-ªn-«p­v F¶v If-hmbn ]d-bp-I-bmWv F¶p ]d-bp-¶p (Q) icn-bà (A) . Eventhough he had deposed that he has got licence and badge to drive the taxi; he has not produced anything before this commission to prove the same. In the complaint or in the affidavit there is no contention regarding that the vehicle was plied by the complainant’s husband for their livelihood.   The burden is on the complainant to prove that the vehicle is used for their livelihood.   Hence the complaint is not maintainable before this commission.   Since the 1^st issue is found against the complaint we are not going to the merit of the case.

In the result, the complaint stands dismissed. There shall be no order as to cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 16^th day of March, 2021.

SL

C.C.No.150/2011

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

5. COURT EXHIBITS

                                   Sd/-

PRESIDENT