State Consumer Disputes Redressal Commission
Raj Agrawal vs G.M. V.E. Commerical Vehicle Pvt.Ltd on 30 April, 2011
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G)
Complaint Case No.23/2009
Instituted on : 11/12/2009
Raj Agrawal, S/o Shri Niranjan Lal Agrawal,
Proprietor. Raj Agrawal & Company,
Plot No.145, T.P. Nagar, Korba,
Tehsil & District Korba (C.G.) ...... Complainant
Vs.
1. General Manager,
M/s V.E. Commercial Vehicle Pvt. Ltd.
Regd. Office - Yalachahallky Village,
Post :- Tavarekere, Hoskote Taluk,
Bangalore - 562 122
2. Head Officer Market,
M/s V.E. Commercial Vehicle Pvt. Ltd.
Regd. Office - Yalachahallky Village,
Post :- Tavarekere, Hoskote Taluk,
Bangalore - 562 122
3. Regional Manager,
V.E. Commercial Vehicle Pvt. Ltd.
Through : Field Spares & Services Pvt. Ltd.
17A/17B, Sirgitti, Tifra,
Bilaspur (C.G.)
4. Hitanand Agrawal, Shri Petroleum,
Post : Urga, (Korba-Champa Road),
District : Korba (C.G.) ...... Opposite Parties
Complaint Case No.24/2009
Instituted on : 11/12/2009
Raj Agrawal, S/o Shri Niranjan Lal Agrawal,
Proprietor. Raj Agrawal & Company,
Plot No.145, T.P. Nagar, Korba,
Tehsil & District Korba (C.G.) ...... Complainant
Vs.
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1. General Manager,
M/s V.E. Commercial Vehicle Pvt. Ltd.
Regd. Office - Yalachahallky Village,
Post :- Tavarekere, Hoskote Taluk,
Bangalore - 562 122
2. Head Officer Market,
M/s V.E. Commercial Vehicle Pvt. Ltd.
Regd. Office - Yalachahallky Village,
Post :- Tavarekere, Hoskote Taluk,
Bangalore - 562 122
3. Regional Manager,
V.E. Commercial Vehicle Pvt. Ltd.
Through : Field Spares & Services Pvt. Ltd.
17A/17B, Sirgitti, Tifra,
Bilaspur (C.G.)
4. Hitanand Agrawal, Shri Petroleum,
Post : Urga, (Korba-Champa Road),
District : Korba (C.G.) ...... Opposite Parties
Complaint Case No.25/2009
Instituted on : 11/12/2009
Raj Agrawal, S/o Shri Niranjan Lal Agrawal,
Proprietor. Raj Agrawal & Company,
Plot No.145, T.P. Nagar, Korba,
Tehsil & District Korba (C.G.) ...... Complainant
Vs.
1. General Manager,
M/s V.E. Commercial Vehicle Pvt. Ltd.
Regd. Office - Yalachahallky Village,
Post :- Tavarekere, Hoskote Taluk,
Bangalore - 562 122
2. Head Officer Market,
M/s V.E. Commercial Vehicle Pvt. Ltd.
Regd. Office - Yalachahallky Village,
Post :- Tavarekere, Hoskote Taluk,
Bangalore - 562 122
// 3 //
3. Regional Manager,
V.E. Commercial Vehicle Pvt. Ltd.
Through : Field Spares & Services Pvt. Ltd.
17A/17B, Sirgitti, Tifra,
Bilaspur (C.G.)
4. Hitanand Agrawal, Shri Petroleum,
Post : Urga, (Korba-Champa Road),
District : Korba (C.G.) ...... Opposite Parties
Complaint Case No.26/2009
Instituted on : 11/12/2009
Raj Agrawal, S/o Shri Niranjan Lal Agrawal,
Proprietor. Raj Agrawal & Company,
Plot No.145, T.P. Nagar, Korba,
Tehsil & District Korba (C.G.) ...... Complainant
Vs.
1. General Manager,
M/s V.E. Commercial Vehicle Pvt. Ltd.
Regd. Office - Yalachahallky Village,
Post :- Tavarekere, Hoskote Taluk,
Bangalore - 562 122
2. Head Officer Market,
M/s V.E. Commercial Vehicle Pvt. Ltd.
Regd. Office - Yalachahallky Village,
Post :- Tavarekere, Hoskote Taluk,
Bangalore - 562 122
3. Regional Manager,
V.E. Commercial Vehicle Pvt. Ltd.
Through : Field Spares & Services Pvt. Ltd.
17A/17B, Sirgitti, Tifra,
Bilaspur (C.G.)
4. Hitanand Agrawal, Shri Petroleum,
Post : Urga, (Korba-Champa Road),
District : Korba (C.G.) ...... Opposite Parties
PRESENT :
HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
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COUNSEL FOR THE PARTIES :
Shri Vikrant Singh, for complainant.
Shri R.K. Bhawnani, for O.P.Nos.1 to 3.
Shri Shaukat Ali, for O.P.No.4.
ORDER
DATED : 30/04/2011 PER :- HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT All aforesaid four Complaint Case Nos.23/2009, 24/2009, 25/2009 and 26/2009, have been filed u/s 17 of the Consumer Protection Act, 1986 by the same complainant against same OPs on the basis of similar facts involving same question of law, therefore, these Complaint Cases, are being decided by this common order. For the purpose of convenience, the facts of Complaint Case No.23/2009, are taken into consideration in this order. Original order be retained in record of Complaint Case No.23/2009, and a copy thereof be placed in the record of Complaint Case Nos.24/2009, 25/2009 and 26/2009.
2. It is not in dispute between the parties that complainant herein, had purchased four Volvo Multi Excel Trailer from O.P.No.1 bearing Nos.C.G.04.-JA/4850, C.G.04.-JA/5128, C.G.04-JA/4502 & C.G.04- JA/4503. The vehicles bearing Nos.C.G.04.-JA/4850 and C.G.04.- JA/5128, were purchased by the complainant on 11.09.2007 & 14.09.2007 respectively, whereas vehicles bearing Nos. C.G.04-JA/4502 & C.G.04-JA/4503, were purchased by the complainant on 31.07.2007. The cost of each vehicle was Rs.47,75,000/- and the Trolley attached // 5 // therewith was having cost of Rs.14,85,000/-. Thus, in all total cost of each vehicle was Rs.62,50,000/-. It is also not in dispute that O.P.No.2 of each Complaint Case, is Regional Office of O.P.No.1 and O.P.No.3 is Authorized Service Centre of O.P.No.1 The purchased vehicles were having warranty as per terms written in the Warranty Card. Warranty was applicable for a period of twelve months from the date of delivery, as indicated in the warranty certificate. For driveline components, the warranty is valid for an additional period of twelve months or until the vehicle has covered 200000 kms or 5000 engine hours from date of delivery whichever occurs first.
3. The case of the complainant in all four Complaint Cases is that at the time of sale of the vehicle, it was informed by the O.P. No.1 to the complainant that the vehicle is having warranty upto running 200000 kms or 5000 engine hours for any manufacturing defect or technical defects or mal-functioning. It was also agreed between the parties that before delivery of vehicle, O.P.No.1 Company will train the drivers appointed by the complainant to drive such vehicle. The vehicles were required to be serviced at the Service Centre O.P.3. The complainant with the help of loan provided by M/s G.E. Capital Transportation Financial Services Ltd., Mumbai, after depositing amount of down payment purchased the vehicles and is required to repay the loan amount in EMIs along with interest @ 7.25% p.a. He is // 6 // also required to pay premium of insurance and road tax for the vehicle.
4. In all four Complaint Cases, it has been averred by the complainant that on 15.08.2008 on account of some mechanical defect, the consumption of fuel in the vehicle exceeded and working capacity of the vehicle, was reduced resulting that the vehicle became incapable of pooling load in full capacity as it was doing earlier and was heating again and again, so it was required to be cooled down which affected the working capacity of the vehicle adversely. It was reported to the OPs. Then, the Engineer was instructed by the OPs to inspect the vehicle and to remove the complaint. Such Engineer came and inspected the vehicles and reported that everything was normal. Then again e-mail dated 20.08.2008, was sent by the complainant to O.P.Nos.2 & O.P.No.3 that vehicle is not functioning properly. Again inspection was carried out by the Engineer and it was reported that everything was normal. Ultimately vehicle stopped working on 25.08.2008, then also the matter was reported by the complainant through e-mail to the OPs and vehicle was brought to the Bilaspur Service Centre of the O.P.1, who is O.P.No.3. At Bilaspur Service Centre, the vehicle was repaired and repairing charges were collected by O.P.No.3 from the complainant, though the vehicle was in the warranty period. Even after such repairs, vehicle was not functioning // 7 // in it‟s full capacity and was consuming more fuel to the extent of 35- 40%. Similarly Mobil Oil, was also required in more quantity and frequent change of air filter, had also been necessitated. The vehicle was also heating again and again. When these things were reported by the complainant to OPs, then it was informed by the OPs that on account of use of adulterated fuel, the problems were generating and the cost of repairs was assessed to the tune of Rs.6,10,307/-. It has been averred by the complainant that for use of all his vehicles, he was purchasing fuel from O.P.No.4. It has also been stated in the complaint that complainant was earning Rs.2,00,000/- per month from each vehicle, (after deducting expenditure on fuel, mobil oil, road tax, insurance premium, salary of driver & helper) out of which, he was to pay Rs.1,37,000/- as installment to the Financer. On account of defects in the vehicle, the earning capacity was reduced to half and therefore, complainant was required to suffer loss from the use of the vehicle. Work of transportation of goods of Ambuja Cement and Lafarge India Pvt. Ltd. was allotted to him, but on account of defects in the vehicle, his work was affected adversely and his goodwill in the market has also been affected adversely. He claimed a sum of Rs.13,00,000/-, Rs.13,00,000/-, Rs.13,00,000/- & Rs.26,00,000/- on account loss of income by each vehicle and a sum of Rs.57,826.92, Rs.53,692/-, Rs.43,356.61, & Rs.140,914.95 respectively, as repairing charges of each vehicle and a sum of Rs.6,10,307/- for each vehicle against estimate of // 8 // repair given by the OPs. Apart from it, a sum of Rs.5,00,000/- in each complaint case, has also been claimed as compensation for mental and financial agony. Thus, in all a sum of Rs.24,68,133.92, Rs.24,63,999/-, Rs.24,53,763.61, & Rs.38,51,221.95 respectively have been claimed as compensation in aforesaid four Complaint Cases on the ground that vehicles are still under warranty condition and have not been repaired by the OPs without obtaining any charges.
5. O.P.Nos.1 to 3 in their joint Written Version, has raised Preliminary Objection to the effect that all four vehicles were purchased purely for commercial purpose and had been plied by the complainant for transportation business in Ambuja Cement and Lafarge India Pvt. Ltd. The complainant was earning huge profit by use of the vehicles and therefore, he does not come in the category of "consumer" as defined in Consumer Protection Act, 1986 (hereinafter called "Act" for short) and the complaint deserves to be dismissed on this ground alone.
6. It has also been averred in the Written Version that the vehicles in question, had smooth run for years and also covered the thousands of kms without any problem. As per allegation of the complainant it was only on 20.08.2008 that vehicles required some services. Thus, it is clear that vehicles did not have any manufacturing defect at all and the complainant has not shown true picture of the case and // 9 // suppressed some material facts in this regard. He has not carefully gone through the warranty clauses of the vehicle and has filed complaint with ill motive, ill design and fraudulent intention to blackmail and harass OPs. It has been specifically stated that vehicles were purchased way back in the year 2007 and plied for his business purposes for more than two years and thereafter the claim of manufacturing defect has been raised by the complainant, which on the face of it, appears untrue. After lapse of warranty period, the complainant has filed a false complaint for wrongful gain. It has been stated in the Written Version that O.P.No.1 is manufacturer and O.P.No.2 is Regional Office of the O.P.No.1. It has also been stated that O.P.No.3 is Authorized Service Centre. M/s FSS Waws working as a Authorized dealer and having the principal to principal relationship with O.P.No.1 and therefore, O.P.No.1 & O.P.No.2 are not responsible for the activity executed by O.P.No.3. It has also been stated that the vehicle was purchased by the complainant as per his choice and need and before purchasing the vehicle, he thoroughly checked and inspected the same and after getting satisfaction of the performance of the vehicle, he confirmed the order for purchasing the vehicles. Warranty conditions and other informations relating to the vehicle, have been read over and explained to the complainant at the time of sale. It has been specifically denied that vehicle was having any manufacturing defect or any defects have been generated in the // 10 // vehicle during warranty period, which were not removed by the OPs. It has been specifically stated that M/s. FSS on the complaint of the complainant promptly checked the vehicle and found that there was nothing wrong with the injectors, as complained by the complainant. On second occasion also it was noted by M/s FSS that color of the camshaft had turned brown indicating that inferior quality fuel/adulterated fuel was being used. Therefore, M/s FSS advised complainant to take care of the fuel quality used to avoid further damages. On 14.04.2009 complainant had sent the vehicle for repair to VECV Bilaspur workshop and also earlier on 21.02.2008 for complaint of coolent leakage, wiper, shut off check etc. and so Invoice of Rs.91,733/- was submitted since accident repair are not under the purview of warranty, so the amount was charged. When the vehicle was reported to the VECV Bilaspur workshop on 14.04.2009, the complainant had requested to carry out basic service of the vehicle along with complaints of steering and engine over heating. On opening, it was noted that internal parts of the engine had wear and tear due to brownish deposit on camshaft which occurred due to usage of adulterated fuel. Complainant was advised by e-mail dated 07.05.2009 to test the fuel at authorized laboratory in Mumbai and take further action. Further approval was also sought from the complainant to repair the engine on chargeable basis as the warranty is not applicable for defects caused due to usage of the adulterated fuels.
// 11 // Thus, the vehicle is parked in VECV Bilaspur workshop from 14.04.2009. Thus, in sum and substance, the defence of O.P.Nos.1 to 3 is that vehicle was purchased for commercial purpose, and has been used for commercial purpose, so complainant does not come in the category of "consumer" as defined in the Act and as warranty period was already expired and defects occurred in the vehicle, were on account of accident or use of adulterated fuel, so, warranty does not apply in the facts of the present case. On these premises, O.P.Nos.1 to 3 prayed for dismissal of the complaint.
7. O.P.No.4 in a separate reply has denied allegation that any adulterated diesel was ever supplied by this O.P. to the complainant. It has been stated in the Written Version that the complainant purchased diesel from this O.P. on credit form 01.06.2008 to 29.08.2008 on the condition that he will pay the amount within 7 days from the date of purchase otherwise pay interest on the accumulated amount. But even then complainant failed to pay the amount of credit as per agreement executed between the parties. Therefore, O.P. No.4 had stopped supplying diesel to the complainant. During the period when diesel was supplied to the complainant, no complaint was ever made of supplying adulterated diesel. Thereafter, the supply of diesel to the complainant was not at all made. Complaint against O.P. No.4 is also baseless.
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8. The first question which arises for consideration in all four Complaint Cases is whether the complaints of the complainant are maintainable and whether complainant is "consumer" as per definition of Section 2 (1)(d) of the Act or not ?
9. From the bare reading of the complaint, in each of the aforesaid four cases, it is clear that four vehicles each costing Rs.62,50,000/- were purchased by the complainant. Total purchase price was more than Rs.2,00,00,000/-. As per averment in the complaint, the complainant was earning a sum of Rs.2,00,000/- per month from each of the vehicle after deducting salary of driver and helper and other charges on fuel, mobil oil, road tax etc. Thus, he was earning huge profit from each of the vehicle and vehicles were purchased on a very heavy cost of more than Rs.2,00,00,000/- From these averments, it can very well be inferred that vehicles were purchased by the complainant for huge profit earning motive and in fact complainant was earning a lot of profit by use of the aforesaid vehicles.
10. Apart from it, in the complaint itself, it has been stated that the complainant was allotted work of transportation of goods of Ambuja Cement and Lafarge India Pvt. Ltd. and he was carrying out works of transportation of goods of these companies. Use of the vehicles in question further shows that vehicles were actually used for // 13 // commercial purpose and he was earning a great profit by use of the vehicles. In the language of the complainant himself, within a period of one year and one month, he suffered loss of Rs.13,00,000/-, Rs.13,00,000/-, Rs.13,00,000/- & Rs.26,00,000/- respectively from each vehicle as the same was not working with full capacity and was consuming more diesel. It clearly establishes that vehicles were not only used or purchased for commercial purpose, but a huge profit was actually being earned by the complainant.
11. It is further clear from the complaint itself that complainant appointed driver as well as helper to operate each of the vehicle. It shows that he was not engaged by self employment in running any of the vehicle. The work was left with many other employees.
12. From the description of the complainant in the cause title of the complaint, it appears that the complainant is running the business in the name and style as Raj Agrawal and Company. The use of word „and Company‟ shows that it was not only Mr. Raj Agrawal, who is owner of the company, but along with him some other persons are also there and so it has become a company of more than one person that is why along with the name of Mr. Raj Agrawal, „and Company‟ word has been used. In the Certificate of Registration of the vehicle also, name of the registered owner has been shown as „Raj Agrawal and Company‟. Thus, when the vehicle is property of a Limited Company, // 14 // having more than one person engaged in the affairs of the company, then it can never be said that any of the vehicle, was purchased by a person to earn his/her livelihood by self-employment. When it is a question of Company, then profit earning motive, is self apparent.
13. In the whole of the complaint, it has nowhere been stated that vehicle was purchased or was being used by the complainant to earn his livelihood by self-employment or by employing drivers. In absence of any such averment in the complaint, no inference, can be drawn in favour of the complainant to that effect. It is also worth mentioning that in the affidavit of the complainant, nothing to that effect has been stated. His affidavit simply verifies the facts stated in the complaint without any further statement of facts. Therefore, this affidavit is also not sufficient to warrant conclusion that any of the vehicle was purchased not for commercial purpose, but for earning livelihood by self employment.
14. Section 2(1)(d) of the Act defines the word „consumer" as under :-
"(d) "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 // 15 // 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 3[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 4[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;]"
15. This definition clearly shows that if any goods are purchased by a person who obtains such goods for resale or for any commercial purpose, then such purchase is excluded from the definition of the word „consumer" unless purchase is exclusively for the purpose of earning livelihood by self employment. Similarly under Section 2(1)(d)(ii) of the Act, if any services are hired or availed by any person, for any commercial purpose, then unless it is shown that such hire or availment is exclusively for the purpose of earning livelihood by means of self employment, such person, who avail or hire such services, can not be said to be "consumer".
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16. Learned counsel for the complainant has drawn out attention towards the pronouncement of the Apex Court in the case of MADAN KUMAR SINGH (D) THR. LR. VS. DISTT. MAGISTRATE, SULTANPUR & ORS., IV (2009) CPJ 3 (SC). After having considered the definition of word "consumer" under Section 2(1)(d) of the Act, 1986, in paragraph No.23 Hon‟ble Apex Court ruled that "Plain reading of the same makes it abundantly clear that appellant herein would fall in the category of „consumer‟ as he had bought the truck for a consideration which was paid by him. It was bought to be used exclusively for the purpose of earning his livelihood by means of self- employment. The said pleading by way of amendment was incorporated by the appellant in his application filed under Section 12 of the Act, before the District Forum but proper cognizance thereof has not been taken."
17. It is clear that, in that case there was pleading to that effect that Truck was purchased for earning livelihood by means of self- employment. It further appears from the facts of the case that in an open auction a second hand truck was purchased by the appellant of that case for Rs.70,000/-, possession of which was not given to him for a considerable time and papers were also not supplied to him for a considerable time, then consumer complaint was filed. In these circumstances, the aforesaid observation was made by Hon‟ble // 17 // Supreme Court in that case. Whereas in the facts of the present case, complainant after investing a huge amount of more than Rs.2,00,00,000/- purchased four big trailers, which can only be used for transporting heavy material from the factories. Admittedly, he was earning huge profit and there was no pleading that vehicles were purchased for self-employment. Thus, we find that the judgment cited by the learned counsel for the complainant, is of no help to him.
18. Learned counsel for complainant further placed reliance on a pronouncement of Hon‟ble National Commission in case of SINGH ENGINEERING WORKS VS. S.K. BLUEMETAL WORKS, I (2007) CPJ 140(NC)). In that case, the complainant was sole proprietor of a small business and so in his favour it was presumed that he purchased some machinery and availed services for self-employment. The facts of the case further shows that transaction was of the year 1994 and 1995. At that time, the Act was not amended to exclude "hire or availing of services for commercial purposes" from the definition of "consumer". In view of this, if Hon‟ble National Commission has presumed some facts in favour of the complainant of that case looking to his business, then by no stretch of imagination any benefit can be given to the complainant of this case on the basis of aforesaid pronouncement.
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19. The next case referred by counsel for the complainant is ASSOCIATED ROAD CARRIERS LTD. VS. KAMLENDER KASHYAP & ORS., I (2008) CPJ 404 (NC). In that case also the machines purchased for earning livelihood by self-employment and therefore, complainant was found „consumer‟ as per definition of Section 2(1)(d) of the Act. This matter can be distinguished on the facts from the case in hand.
20. Counsel for the O.P.Nos.1 to 3, during the course of arguments has drawn our attention towards pronouncement of Hon‟ble National Commission in case of M/S EITHER MOTORS LTD. VS. DILIP CHANDRA KANT VAIDYA & ORS., FIRST APPEAL NO.365 OF 1999, decided on 07.11.2006. In that case two buses were purchased by the complainant from M/s Eicher Motors Ltd. The complainant was Proprietor of a Travel Agency and the Buses were used as tourist buses. It was found that the complainant does not come in the category of „consumer‟ as per definition of the Consumer Protection Act, 1986. Then complainant of that complaint went to Hon‟ble Supreme Court and ultimately his Civil Appeal No(s) 5912 of 2006 was also dismissed by Hon‟ble Supreme Court vide order dated 16/03/2011.
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21. Thus, it is clear that when a person is having more than one vehicle and is engaged in Transport Business, he can not be said as „consumer‟ as per definition under Section 2(1)(d) of the Act.
22. Learned counsel for the O.P.Nos.1 to 3 has also placed reliance on numerous judgments of Hon‟ble National Commission as well as State Commissions. He has referred decisions of Hon‟ble National Commission in case of (i) Amanchi Rajendra Prasad & Ors. Vs. Dabur Ayurved Ltd. (Aqua), 2010 NCJ 206 (NC), (ii) Delhi Transport Corporation Employees Provident Fund Trust Vs. Orissa Small Industries & Anr., 2008 NCJ 228 (NC), (iii) Anant Rice Industries Vs. Veesons Energy Systems Pvt. Ltd., I (2011) CPJ 357 decided by this Commission on 31.08,2010, (iv) Cholamandalam DBS Finance Ltd. Vs. Jogender Singh, I (2011) CPJ 222, decided by this Commission on 05.05.2010 and few judgments of other State Commissions.
23. The controversy regarding availing services during warranty period even when the goods was purchased by the complainant for commercial purpose, has been set at rest by the Hon‟ble Supreme Court now by the decision in the case of BIRLA TECHNOLOGIES LTD. VS. NEUTRAL GLASS AND ALLIED INDUSTRIES LTD., I (2011) CPJ 1 (SC). It has been ruled by the Hon‟ble Supreme Court in paragraph No.9 as under :-
// 20 // "9. In view of the findings of the National Commission that the goods sold by the appellant to the respondent/complainant amounted to „goods‟ and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view, it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. 15.3.2003 by way of the amendment by the same Amendment Act, as it is nobody‟s case that the goods bought and used by the respondent herein were exclusively for the purpose of earning the respondent‟s livelihood by means of self-
employment. In that view, it will have to be held that the complaint itself was not maintainable in toto."
24. Thus, it is clear that if goods are purchased for commercial purpose for earning more profits, then there would be no dispute that even services which were offered had to be for commercial purpose and in this circumstance, the complaint regarding any defect in the vehicle or any deficiency in service as per terms of the warranty, is not maintainable, as the complainant is excluded from the definition of „consumer‟ as defined under Section 2(1)(d)(i)& (ii) of the Act.
25. Therefore, we are of the considered view that the complaint of the complaint herein, is not maintainable and is liable to be dismissed solely on this ground.
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26. We are not interested in indulging further to the inquiry that whether defects in the vehicle, were generated on account of some inherent mechanical failure, manufacturing defect or on account of use of adulterated fuel, in view of the finding recorded by us hereinabove that the complainant itself is not maintainable before us.
27. Thus, all the aforesaid four complaints are dismissed as not maintainable before the Consumer Fora. However, on the request of learned counsel for the complainant, liberty is granted to the complainant to file Civil Suit or other appropriate proceeding before a Competent Court or Forum, if so chosen by the complainant. In case of filing any Civil Suit or other proceeding before any other Forum, the complainant may very well get benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting proceeding under the Act while computing period of limitation prescribed for such Civil Suit or proceeding. No order as to the cost of these complaints.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/04/2011 /04/2011