Kerala

StateCommission

A/262/2017

KRISHNA KUMAR - Complainant(s)

Versus

TATA MOTORS - Opp.Party(s)

K.MAHADEVAN

19 Dec 2019

ORDER

 

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION  VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 262/17

    JUDGMENT DATED:19.12.2019

PRESENT : 

HON’BLE JUSTICE K. SURENDRA MOHAN          : PRESIDENT

SMT. BEENAKUMARI.A                                            : MEMBER

Krishnakumar T.R, S/o Raman Nair,

Thoppil House, Puttumanoor,

Puthencruz P.O, Ernakulam, Kochi-682 302.              : APPELLANT

 

(By Adv: Sri. K. Mahadevan & K.G. Rajesh)

 

            Vs.

 

1. The Manager,

Customer Support, Tata Motors,

Passenger Car Business Unit,

One Forbes, 5^th Floor, Dr. V.B. Gandhi Marg,

Fort, Mumbai-400 023.

                                                                                                : RESPONDENTS

2. The Regional Manager,

Concorde Motors (India) Ltd.,

Neettoor, Maradu Panchayath,

Cochin, Ernakulam, Kerala-682 304.

 

(By Adv: Sri. S. Reghukumar)

 

 

JUDGMENT

HON’BLE JUSTICE  K. SURENDRA MOHAN : PRESIDENT

The complainant is in appeal before us, aggrieved by the dismissal of his complaint by the Consumer Disputes Redressal Forum, Ernakulam (hereinafter referred to as the District Forum for short) as per order dated, 13.01.2017.   CC.448/2013 filed by the complainant has been dismissed on the finding that the appellant was not a “consumer” as defined by section 2(i)(d) of the Consumer Protection Act, 1986.  The complaint was filed in the following circumstamces:-

2.      The appellant/complainant had purchased a Tata Indica Vista car bearing registration No.KL-39B 8123.  The car had been purchased by one Sri. Pramod P. Sukumaran from the respondents herein on 10.10.2010.   At the time of purchase of the car by the complainant, it was only six months old, according to the appellant.  His case is that the car was purchased along with its warranty, extended warranty, insurance policy and other accessories.  Apart from the normal warranty period it was alleged that the vehicle was covered by an extended warranty of two years duration after purchase on payment  of an additional amount of Rs.5100/-.  It is the case of the appellant, that, the car was being serviced and maintained regularly and at timely intervals.  According to the appellant, on 14.5.2013 when he had taken the car for the 5^th service to the 2^nd opposite party there was some stiffness and sound in the steering wheel while driving.  The technician who examined the vehicle was of the opinion that there was some problem with the steering box but in view of the extended warranty the same could be replaced.  But the next day he was told that they could not service the vehicle or replace the steering box.  He was also told that his claim for the benefit of extended warranty was rejected by the 3^rd opposite party.  Though the 2^nd respondent was contacted the issue could not be resolved and finally the vehicle was taken possession of by the appellant, after paying an amount of Rs.8586/- as service charges though the vehicle had not completed 15300 Kms.  The appellant has already spent an amount of Rs.17864/-.  Therefore, the appellant sought for the issue of appropriate directions from the District Forum for having the steering box of his vehicle replaced and rectified without any charge.

3.      The complaint was contested by respondents 1 and 2 by filing separate versions.  It was contended that the allegations in the complaint were baseless.  It was also contended that the appellant was not a “consumer” as defined u/s 2(i)(d) of the Consumer Protection Act, 1986.  There was no deficiency in service on the part of the first respondent.  The first respondent has been unnecessarily made a party to the proceedings for, his extended warranty is being given by the 3^rd opposite party.  Third opposite party had rejected the claim of the appellant on the ground that he had not carried out the periodic service as prescribed by the manufacturer, regularly.  Since there was a violation of express conditions of the warranty, conduct of repairs on payment basis was offered, which was not accepted by the appellant.

4.      Second respondent filed a separate version on more or less the same lines as the first respondent.  They disputed that there was any deficiency in service on their part.  According to the 2^nd respondent also the case was only to be dismissed.  Though notice was issued to the 3^rd opposite party the same was returned unserved with the endorsement “left”.  It is revealed from the proceedings that, subsequently the 3^rd opposite party was removed from the party array by the District Forum.  Though I.A.604/15 was filed by the appellant later, to bring the 3^rd opposite party back on the party array, the said petition was dismissed on 13.1.2017, on the ground that the complaint had been dismissed on the same day.  It is seen from the proceedings sheets that, the District Forum had removed the 3^rd opposite party from the party array finding that, the reliefs claimed by the appellant could be obtained since respondents 1 and 2 were on the party array.

5.      The District Forum has proceeded to try the complaint on the above pleadings.  The appellant examined himself as PW1 and marked Exts.A1 to A5 documents on his side.  On the side of the respondent DW1 was examined and X1 series (job cards) (seen marked also as B1 series) were marked.

6.      After closure of evidence, the matter was heard and the complaint has been dismissed by the District Forum on the preliminary point, holding that the appellant was not a “consumer” coming within the purview of section 2(i)(d) of the Consumer Protection Act, 1986.  The other issues raised have not been considered.  It is aggrieved by the said order that this appeal is filed.

7.      According to the counsel for the appellant the vehicle purchased by him was almost brand new, hardly six months old.  Therefore, the vehicle was expected to be in good condition.  The previous owner had the benefit of an extended warranty which he had purchased by making an extra payment.  Therefore it was necessary for the respondents to have repaired the vehicle without any charge.  The counsel therefore seeks interference with the order appealed against.

8.      The counsel for the respondent on the other hand points out that, it was the 3^rd respondent/3^rd opposite party who was responsible for providing the extended warranty.  Since the said respondent had been removed from party array, no relief could be granted to the appellant even if he had been found to be a “consumer”.  It is further contended that the extended warranty being a separate contract, the benefit thereof was available only to Mr.Pramod Sukumaran and not to the appellant who was a subsequent purchaser.  The sale was without the permission of the 3^rd opposite party.  Apart from the above it is contended that the claim of the appellant for the benefit of extended warranty was rejected by the 3^rd opposite party for the reason that, periodic services had not been conducted by the appellant regularly and as stipulated in the Owner’s Manual.  Therefore the counsel seeks dismissal of the appeal.

9.      The first question that arises for consideration is, whether the appellant being the 2^nd purchaser of a brand new car can be held disentitled to any relief for the reason that there was no privity of contract between him and the respondent.  In the above context, an examination of the definition in section 2(i)(d) of the Consumer Protection Act, 1986 is necessary.

Section 2(i)(d) of the Act,

(d)     “Consumer” means any person who-

1. 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
2. [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 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];

[Explanation – For the purposes of  this 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;]

10.    A perusal of the above dentition shows that the same includes not only any person who buys any goods for consideration but also any user of such goods other than the person who buys those goods for consideration, when such use is made with the approval of such person.  The only exception is that a person who obtains such goods for resale or for commercial purpose would not come within the definition.  The resultant position is that the definition includes two categories of persons within its scope.  They are:

(i)      The person who buys any goods for consideration and

(ii)      any user of such goods when such use is made with the    

          approval of the person who buys the goods.

 

The second category of persons, namely, users of the goods, are not persons who have privity of contract with the seller.  Therefore the definition includes even persons who have no privity of contract with the seller.  It is sufficient that the goods are used with the approval of the buyer and that the same is not for resale.   Since the definition includes even a person who is permitted to use the vehicle by the original owner, it cannot be said that it excludes a person like the appellant who is the second purchaser of the vehicle.  The appellant’s use of the vehicle is also with the approval of the original owner.  He had not obtained the some for resale.  Therefore, he is a consumer coming within the definition.  The District Forum seriously erred in dismissing the complaint on the ground that there was no privity of contract between the appellant and the respondents. Respondents being the manufacturers and the dealer of the vehicle have a duty to ensure that the vehicle was roadworthy and free of all defects arising not due to any act on the part of the purchaser.  The question as to whether any such defect existed in the vehicle purchased by the appellant herein has not been examined by the District Forum and therefore, the said question would have been considered.

11.    The 3^rd opposite party is stated to be the one responsible for providing the extended warranty.  It is also stated by the respondent that the 3^rd opposite party had rejected the claim of the appellant stating that he had not conducted the periodic services of the vehicle regularly, as stipulated in the Owner’s Manual.  The 3^rd opposite party is not on the party array of this appeal.  The extended warranty has not been produced.  Therefore, we are not in a position to ascertain what the terms thereof were.  A perusal of the job cards does not given any indication as to the nature of the defects that the vehicle has been alleged to have.  We take note of the fact that OP3 had been removed from the party array by the District Forum and that, though a petition was later on filed by the appellant for bringing back the said party on record the same was dismissed without assigning any reason.

12.    The counsel for the respondents has placed reliance on the Order of this Commission in II (2001)CPJ 117 P.M. Subaire & Another Vs. Ashok Leyland Limited & Another, to contend that the terms of the warranty would determine whether a complainant would be entitled to the benefit thereof or not.  In the said case the terms of the warranty disentitled the second purchaser from claiming the benefit of the extended warranty, it is pointed out.  However in the present case since the extended warranty has not been produced, we are not able to ascertain whether there is any such exclusion clause in the warranty in this case.  The District Forum shall be at liberty to examine the said aspect also.

13.    Taking into account all the above aspects we are of the opinion that the matter requires to be examined by the District Forum afresh.  The order appealed against is unsustainable and is liable to be set aside for the reasons noted above.

In the result, this appeal is allowed as follows:-

1. The Order dated:13.1.2017 of the CDRF, Ernakulam in CC.448/13 is set aside.
2. The CDRF, Ernakulam shall take up CC.448/13 and shall consider the complaint afresh, after service of notice on the 3^rd opposite party and giving an opportunity to him to file version and to adduce evidence.
3. The parties shall be at liberty to adduce all evidence that they may consider necessary to prove their case.
4. Considering that the complaint is a long pending one, efforts shall be made to dispose of the same as expeditiously as possible.

 

 

JUSTICE K. SURENDRA MOHAN : PRESIDENT

 

 

BEENAKUMARI.A : MEMBER

 

 

VL.