National Consumer Disputes Redressal
H.Vasantha Kumar vs M/S Ford India Ltd. on 10 February, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 490 OF 2004 (Against the order dated 23/08/2004 in Appeal/ Complaint No.83/2000 of the State Commission, Chennai) H. VASANTHAKUMAR NEW NO.15, OLD NO.8-A, SOUTH USMAN ROAD, T.NAGAR, CHENNAI - 600017 ........ Appellant (s) Vs. 1. M/S FORD INDIA LTD. REP. BY ITS G.M. SINGAPERUMAL KOIL CHENGLEPUT-603204 2. M/S CHENNAI FORD REP.BY ITS G.M. CALVE CHATEAU, 808, POONAMALLEE HIGH ROAD, KILPAUK, CHENNAI - 600010 ........ Respondent (s) BEFORE: HON'BLE MR. JUSTICE R.K. BATTA, PRESIDING MEMBER HONBLE MR. S.K. NAIK, MEMBER For the Appellant : Mr. Sumit Kumar, Advocate For the Respondent : Mr. Dhruv Wahi, Advocate for R-1 Ms. Astha Tyagi, Advocate for R-2 Pronounced on : 10.02.2009 ORDER
PER S.K. NAIK, MEMBER This appeal is aimed at impugning the order dated 23.8.2004 passed by the State Consumer Disputes Redressal Commission, Chennai (for short the State Commission) in OP No.83/2000 vide which the complaint of the appellant seeking replacement of the car and for compensation of Rs.10 lakhs has been dismissed.
Brief Facts of the case are that ----- The appellant/complainant purchased a Mahindra Ford Escort Car on 27.4.1998 for a consideration of Rs.8,55,579/-. It was covered under warranty for 12 months or for a distance of 20,000 k.m. whichever was earlier.
As per the complainant, the vehicle started giving troubled within two months of the date of its purchase. Contending that the primary defects pertained to poor engine pick-up and excessive consumption of engine oil for which the vehicle had to be repeatedly taken to the workshop ; the complainant filed a complaint before the State Commission seeking replacement of the vehicle as the defects according to him were in the nature of manufacturing defects. He also sought a compensation of Rs.10 lakhs.
On notice being served on the opposite party/respondent No.2 - M/s Chennai Ford the dealer filed its reply while the manufacturer - M/s Ford India Ltd. remained absent. On the basis of the evidence produced by the parties and after hearing the counsel, the State Commission came to the conclusion that the numerous visits to the workshop were warranted because of over usage of the car and further that the defects were of trivial nature. Further, the State Commission agreed with the contention of the opposite party/ respondent No.2 that the minor defects were always attended to. The complaint accordingly was dismissed. Aggrieved thereupon, this appeal has been filed by the complainant.
Learned counsel for the appellant, assailing the order of the State Commission has contended that the State Commission has failed to appreciate that within two months of its purchase, serious defects such as unusual sound of the engine, over heating and dis-proportionate consumption of engine oil were noticed. The vehicle had to be taken to the workshop of the respondent for a dozen times within a year and every time the recurrence of the same defects were pointed out to the respondent. This ought to have convinced the State Commission that the defects were of an inherent nature which could not be rectified. Further, their own letter dated 16.3.1999 amounts to an admission of the existence of inherent defects in the car. The State Commission failed to arrive at the inevitable conclusion from Ex.B-1 Sr.No. 1,2,3,4,5,6,8,10,11 and 12 that the car suffered from manufacturing defects. The counsel, therefore, submits that the order of the State Commission is based on totally erroneous findings and deserves to be set aside.
On the other hand, both the counsel for the respondents have raised a primary objections that the appellant is not a consumer as defined under Section 2 (1)
(d) of the Consumer Protection Act., 1986 as the vehicle in question was purchased by the company in its name from the companys account and the same was used for commercial purpose. This has been admitted by the appellant himself in his pleadings before the State Commission. Even though this objection has been raised before the State Commission, it has failed to discuss the same in its order. The counsel, therefore, submits that on this ground alone, the complaint ought not to have been entertained.
On the merits of the case, the counsel has supported the findings of the State Commission contending that the State Commission has rightly opined that the defects in the car pointed out by the complainant were trivial in nature. They occurred as a result of excessive and over use of the car in the process of normal wear and tear. Every time the car was brought to the workshop of the respondent No.2, the defects were promptly and properly attended to and the car was taken back by the complainant with full satisfaction. In this regard attention of this Commission has been drawn to the job cards Exs. from B-1 to B-22 of the paper book where certificate of satisfaction has been endorsed by the complainant or his representative, every time the vehicle was repaired.
In so far as the letter dated 16.3.1999 purported to be admission of manufacturing defect by respondent No.1 is concerned, it has been submitted that by no stretch of imagination can an oilseal leak be termed as manufacturing defect. The letter only referred to a problem of oil seepage through the front camshaft oilseal and around tappet door gasket. While the defect had been rectified, the appellant had been requested to send the car on 22.3.1999 for renewal of the camshaft oilseal as also to attend to the complaint regarding abnormal noise in the engine. The complainant, in order to make wrongful gain, however, chose not to get the problem rectified but filed a complaint before the State Commission.
Learned counsel for the respondent No.2 - the dealer, supporting the order of the State Commission has reiterated the arguments advanced by the learned counsel for the respondent No.1 that the vehicle was brought to the workshop for removing minor defects arising out normal wear and tear because of extensive use and every time the repairs were done to the entire satisfaction of the appellant. The complaint has no merit and has been rightly dismissed by the State Commission.
We have heard the learned counsel for the parties and also have perused the records of the case.
In our view, the State Commission ought to have considered the preliminary objection of the respondent/opposite party No.2 that the appellant/complainant was not a consumer. It has not been denied that the car in question was purchased by M/s Vasanth & Co. Further, it has not been denied that the petrol expenses and drivers salary etc. are debited to the companys account. The appellant in his original complaint dated 24.4.2000 in para 8 has stated as under :
The complainant further submits that he has purchased the above car for his personal use. He is a social worker. He used to visit throughout Tamil Nadu to attend social functions and look after his business.
(emphasis supplied) That the car was purchased by the company from companys account and the expenditure on driver and running of the car was being met at the expense of the company and further that the complainant uses the car to look after his business apart from attending to social functions etc. goes to show that the complainant did not fall within the definition of a consumer, as defined under Section 21 (d) of the Consumer Protection Act, 1986 as such it has to be held that the vehicle was purchased and was being used for commercial purpose. On this ground alone the complaint is liable to be dismissed.
Even on merits, facts with regard to the car having run 18,000 k.m. within the first year of its purchase and complaint having been filed long after the expiry of the period of warranty when the car had covered 34861 kms. have to be considered in the context of the defects pointed out by the complainant and repairs undertaken by respondent No.2. The State Commission, in our view, has rightly held that the defects mentioned in the job cards which were duly repaired by respondent No.2 cannot by any stretch of imagination be called as indicative of manufacturing defect.
The opposite party has attended to the vehicle every time, it was brought to the workshop to the satisfaction of the appellant/complainant. If the defects/problems were of such a chronic nature, the complainant would not have been in a position to use the car for thousands of kms. Besides nothing prevented him from producing expert opinion/evidence to prove that it was a case of manufacturing defect. We do not find any deficiency in service on the part of the respondents.
Resultantly, the appeal is dismissed, however, with no order as to costs.
Sd/ (R.K. BATTA, J) (PRESIDING MEMBER) Sd/ (S.K. NAIK) MEMBER St/14