State Consumer Disputes Redressal Commission
Amit Ghosh Dastidar vs Jia Auto Sales Pvt. Ltd. on 31 December, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1057/2017 ( Date of Filing : 25 Sep 2017 ) (Arisen out of Order Dated 23/08/2017 in Case No. CC/207/2011 of District Kolkata-I(North)) 1. Amit Ghosh Dastidar 30B, Gobinda Auddy Road, P.S. - Chetla, Kolkata - 700 027. 2. Subhajit Bhattacharyya 30B, Gobinda Auddy Road, P.S. - Chetla, Kolkata - 700 027. ...........Appellant(s) Versus 1. Jia Auto Sales Pvt. Ltd. 234/3A, A.J.C. Bose Road, FMC Fortuna Building, P.S. Bhowanipore, Kolkata - 700 020. 2. Showroom for Sales, Divine Bliss 2/3, Judges Court Road, Gr. Floor, P.S. Alipore, Kolkata -700 027. 3. SKODA Auto India Pvt. Ltd. A-1/1, M.I.D.C. Five Star Industrial Area, Shendra, Aurangabad -431 201. ...........Respondent(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Ms. Punam Kumari Choudhury, Advocate For the Respondent: Mr. Amit Kumar Ghosh., Advocate Dated : 31 Dec 2019 Final Order / Judgement Sri Utpal Kumar Bhattacharya, Member
Instant Appeal has been preferred challenging the judgment and order No. 46 dated 23.08.2017 passed by the Ld. District Forum in Complaint Case No. CC/11/207 dismissing the same without costs against the Respondents/OPs.
The brief fact of the complaint leading to the instant controversy was that the Appellants/Complainants, being the owners of M/S the Event Managers, purchased a Scoda Fabia Car from the Respondent/OP No. 1 on a hire purchase scheme under ICICI Bank. The vehicle was fitted with accessories worth of thousands of rupees which included rear speakers, seat covers, perfume, mudflat seat, foot mat and glass film. The Appellants/Complainants took delivery of the car on payment of a consideration of Rs. 8,00,000/- on 09.02.2011.
The Appellants/Complainants noticed several defects in the vehicle within two hours from taking delivery of the same and sent it to the service centre on 10.02.2011 under intimation to the Respondent/OP No. 1. The vehicle was handed over to the Appellants/Complainants on 12.02.2011 with almost no repairing being made as, on inspection of the vehicle, it came out that the speaker of the vehicle was removed turning the entire wiring system in absolute disarray. As they were made to understand, the installation of the speaker of the vehicle was the sole reason for developing defect in the subject vehicle. The Appellants/Complainants were not happy with the repairing of the vehicle and did not want to take delivery of the same although they were persuaded to do so. They, however, were made convinced to take delivery of the vehicle on an assurance of non-recurrence of similar trouble in the vehicle but had to send back the vehicle once again to the workshop within a span of 17 days as there was recurrence of various troubles like jerking, non-functioning of hand brake, glowing dash board etc. They communicated their displeasures to the Respondent Nos. 7 to 9/OP No. 3, the manufacturer of the vehicle, about the defects being faced by them in running their newly purchased vehicle and refused to take delivery of the vehicle even after being assured that appropriate measure for addressing the problem of the vehicle would be taken in case of recurrence.
A newly purchased vehicle manifesting several defects immediately after purchase was decided not to be taken delivery of by the Appellants/Complainants. With the ongoing impasse remaining unsettled and no immediate remedy appearing to be forthcoming, the Appellants/Complainants took legal shelter by filing the complaint case before the Ld. District Forum. The order for dismissal of the complaint which was passed in the Complaint Case was put under challenge in the impugned order.
Heard Ld. Advocates appearing on behalf of both sides.
Ld. Advocate appearing on behalf of the Appellants/Complainants submitted that the subject vehicle was decided to be purchased by them for both of their personal and professional use. They, as alleged, were business partners of their unregistered firm under the name and style "M/S the Event Managers". As submitted, the said firm, being their sole source of earning livelihood, they were to be considered as consumer within the meaning of Section 2(1)(d) of the C.P Act, 1986. The Appellants/Complainants, citing reference of the decision of the Hon'ble National Commission in the Consumer Complaint No. 51/2006 [Crompton Greaves Ltd. and Anr.--Vs--Daimler Chrysler, India Pvt. Ltd. and Ors.], reported in (iv) 2016 CPJ 469 (NC), submitted that a car or any other goods, if purchased or obtained or any services, if hired or availed of by company for use/personal use of its directors or employees, such transaction did not amount to purchase of goods or hiring or avail of services, for commercial purposes, irrespective of whether the goods or services were used solely for personal purposes of directors or employees of company or they were used primarily for use of the directors or employees of the company and incidentally for the purposes of the company.
The vehicle, as the Ld. Advocate continued to submit, started showing defect from the very day it was delivered to the Appellants/Complainants. It was sent to service centre on the next date but the service centre returned the vehicle only after removing the speaker pointing out the same as the root of the problem. The defect developed once again in the vehicle within a span of 17 days since the date of purchase when the Appellants/Complainants sent the vehicle back to the Respondent/OP No. 1 demanding from it the replacement of the vehicle which the Respondent/OP No. 1 refused to accede to.
As submitted, the Respondent/OP No. 1 even wanted to pay back the cost of the removed rear speaker to cover up its lapses. As continued, the Respondent/OP No. 1, out of its own business interest, consistently insisted the Appellants/Complainants upon fixing the speaker. The speaker, if at all be considered as the cause for the defect in the vehicle, was installed by the Respondent/OP No. 1 only and none-else at a cost realized from the Appellants/Complainants. The defective installation of the speaker in the vehicle, therefore, went to add only further demerits of the services rendered by the Respondent/OP No. 1.
Moreover, as continued, the W/V did not point out the speaker as liable for developing other defects like jerking, non-functioning of handbrake, glowing dash board etc. which ultimately led the defect to be magnified to such an extent that even the engine of the same stopped taking a start.
As submitted, the Forum below dismissed the complaint on the ground that the manufacturing defect was not substantiated adducing any expert report corroborating the defect alleged. The lower Forum, as contended, itself had authority to direct for the vehicle to be examined by a competent technical expert for offering opinion as to whether there was at all any manufacturing defect which it did not do but passed an erratic order marked with absolute non-application of mind depriving the Appellants/Complainants of their legitimate claim of replacement of the vehicle or refund of the consideration as an alternative.
The Ld. Advocate referred further to the decision of the Hon'ble National Commission in Revision Petition No. 2942/2016 [Ajay Kumar Thakur--Vs--M/S Jaiswal Motors and Ors.], based on which the impugned order was passed by the Ld. District Forum and submitted that the vehicle in the said case was of six months of warranty left in sharp contrast to the present occasion where the new vehicle developed problems on the same day it was delivered to the Appellants/Complainants.
The Ld. Advocate concluded with the prayer for setting aside the impugned judgment and order.
Ld. Advocate appearing on behalf of the Respondent Nos. 7, 8 and 9/OP No. 3, being the manufacturing company of the subject vehicle, drew the notice of the Bench to the impugned judgment and order and submitted that the points determining the issue were decided with proper analysis by the Ld. District Forum while passing the impugned judgment and order.
Referring to para 11 of their W/V placed before the Ld. District Forum at running page 63, the Ld. Advocate submitted that prayer was made for getting the subject vehicle examined under direction of the Ld. District Forum. The nature of the defect developed in the subject vehicle would have been ascertained had the prayer been considered favourably.
The Ld. Advocate prayed for the Appeal to be dismissed affirming the impugned judgment and order.
Perused the papers on record and considered submissions of the Ld. Advocates appearing on behalf of both sides. It appeared that the decision on the issue rested on the following points.
Whether the Appellant/Complainant was a consumer within the meaning of the definition as envisaged under the C.P Act, 1986 under Section 2(1)(d).
Whether the vehicle was having at all any manufacturing defect.
The Appellants/Complainants placed before this Bench an uncontroverted claim that theirs was a partnership business and the vehicle was purchased both for their personal and professional use. It was also told that the business which the vehicle had least relation to, was their sole source of income for earning livelihood. The claim was, as already told, not challenged by the participating Respondents/OPs before the Bench nor, as the record revealed, the said Respondents/OPs mentioned any demerit of the complaint in their W/V furnished before the Ld. District Forum on the said point. In this context, we like to refer to the observation of the Hon'ble National Commission in Revision Petition No. 2942/2016 [Ajay Kumar Thakur--Vs--M/S Jaiswal Motors and Ors.], (supra) where, at para 5, the Hon'ble Commission was pleased to observe, "If a car or other goods are purchased or the services are hired or availed by a company for the personal use of its directors or employees, the purpose behind such acquisition is not to earn profits or to advance the business activities of the company. The purpose is to make certain facilities and amenities available to the directors and employees of the company as a part of the incentive offered to them by the company, as a reward or remuneration for the work which they are expected to perform for the company. It is not as if a company cannot run its business without providing such facilities and amenities to its directors and employees. It is not necessary for the business of the company, to provide such facilities and amenities to its directors and employees. Providing such facilities and amenities only motivates them to perform their work in an efficient and congenial environment, besides serving as an incentive aimed at eliciting better performance. The company does not earn profit merely by making a car or certain other goods or services available to its directors and employees. Therefore, it would be difficult to say that such goods are purchased or the services are hired or availed by the company for a commercial purpose."
The impugned order did not dismiss the complaint on the ground of commercial use of the vehicle. It revealed from the case analysis that the complaint case was dismissed for the only reason that the Appellants/Complainants, allegedly, failed to prove that the vehicle had a manufacturing defect.
It was not understood why the participating Respondents/OPs, as manufacturer of the goods, the subject vehicle on the instant occasion, should not take care of his customers' allegation of defect in the goods, sold only a day back and why at their own initiatives, they would not get the vehicle examined by their technical experts and deliver the same after removing the alleged defect.
The decision of the Hon'ble National Commission in the case reported in 2017 (2) CPR 716 (NC) [Ajay Kumar Thakur--Vs--M/S Jaiswal Motors and Ors.] (supra), based on which the impugned judgment and order was passed, appeared to be related to a vehicle which had only six months of warranty left whereas, in the instant issue, the subject vehicle was a new one which the Appellants/Complainants did not have a chance for undisturbed use even for a day. The vehicle appeared to have exhibited a defect on the very day on which it was taken delivery of and it was sent to the workshop keeping its dealer in the loop on the following day. It was handed over to the Appellants/Complainants only for the same defect to be recurred after a gap of 17 days. Referring to the said judgment as decisive in respect of the subject issue, the Ld. District Forum only made an effort to fit in a square peg in a round hole.
It was quite natural that the purchaser would refuse to accept such a defective vehicle for which he had already invested a considerable amount. The participating Respondents/OPs, being the manufacturer, expectedly should have attended the complaint in time and addressed suitably the grievance of the Appellants/Complainants.
Expectedly, the Appellants/Complainants would not even dream of engaging any technical expert himself for a vehicle which had developed defect after a day since the date of purchase.
Considering the fact that the Appellant/Complainant was already under serious mental agony, the Bench felt that it would have been an extra financial burden upon the Appellant/Complainant if he was directed to get the subject vehicle examined by a technical expert at his own initiative.
A vehicle developing defect on the very day it was purchased led the Appellant/Complainant smell some manufacturing defect in the vehicle for the right reason. The manufacturer Respondents committed a grave mistake not taking care of the grievance of the Appellant/Complainant in appropriate moment.
Above being our observation, we are of the considered view that the participating Respondents/OPs, being the manufacturer of the subject vehicle, had deficiency in rendering services to the Appellants/Complainants. Accordingly, we intend to allow the Appeal in part setting aside the impugned judgment and order.
Hence, Ordered that the Appeal be and the same stands allowed in part. The Respondent Nos. 7 to 9/OP No. 3 are hereby directed to refund the entire amount of Rs. 8,00,000/- to the Appellants/Complainants on return of the subject vehicle, if it is not already returned.
The Respondent/OP No. 1 and Respondent Nos. 7 to 9/OP No. 3 are also directed to pay jointly and severally a compensation of Rs. 50,000/- and litigation cost of Rs. 10,000/- to the Appellants/Complainants.
Entire order has to be carried out within 45 days from the date of the instant order, failing which, simple interest @ 9% p.a. shall accrue to Rs. 8,50,000/- being the total of the refund amount and compensation, from the date of default till the entire decretal amount, including cost, is fully recovered.
Impugned judgment and order stands set aside. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER