State Consumer Disputes Redressal Commission
M/S.Srimathi Chellammal Investment, ... vs The Executive Director, Passenger Car ... on 4 December, 2013
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : HONBLE JUSTICE THIRU.R.REGUPATHI PRESIDENT THIRU.A.K.ANNAMALAI JUDICIAL MEMBERC.C.NO.45/2005
DATED THIS THE 4th DAY OF DECEMBER 2013 Date of Complaint : 12.08.2005 Date or Order :
04.12.2013 M/s.Srimathi Chellammal Investment, No.53, II-Floor, Nelson Manickam Road, Choolaimedi, Chennai 600 094.
M/s.E.J.Ayyappan Rep by Mr.P.George, Counsel for complainant (M/s.George Enterprises), No.9, Raghavan Street, Gill Nagar, Chollaimedu, Chennai-94.
-vs-
1. The Executive Director, Passenger Car Business Unit, TATA Motors Limited, M/s.S.Satish Parasaran Bombay House, 24, Homi Mody Street, Counsel for 1st Opp.party Mumbai 400 001.
2. The Managing Director, M/s.Manipal Automobiles Pvt.Ltd, M/s.D.Jawahar No.22, Arcot Road, Counsel for 2nd opp.party Saligramam, Chennai 600 093.
The complainant filed a complaint before the Commission against the opposite parties praying for a direction to the opposite parties to pay a sum of Rs.22,45,690/- towards compensation for loss of vehicle, mental agony, loss on account of private taxi hire charges, loss of interest paid, and loss of insurance premium paid and to pay Rs.15,000/- towards costs. The complaint came before us for final hearing on 11.09.2013, upon hearing the arguments on either side, perusing the documents, this commission made the following the orders :
A.K.ANNAMALAI, JUDICIAL MEMBER The complaint filed under Section 17 of the Consumer Protection Act.-2-
1. The complainant filed this complaint claiming some reliefs and compensation for mental agony caused to the complainant with costs.
2. The brief fact of the complainant is as follows:
The complainant purchased a TATA Safari Petrol Car on 14.11.2003 from the 2nd opposite party (Dealer) M/s.Manipal Automobiles (P) Ltd, Chennai, and as per the letter dated 30.8.2004, sent by the companys Regional Customer Support Manager, PUBU, South the complainant purchased the petrol version Tata Safari Car. Within 30 days the car started trouble for sudden stoppage of the car engine at high speeds. Immediately the complainant informed the 2nd opposite party for repairs, even after several visits to the work shop, but could not be rectified by the 2nd opposite party. The 2nd opposite party even after called for the experts from the company to check the car, but the problem unable to find out and rectified. Hence, the complainant sent a letter dated 4.10.2004 to the 1st opposite party, but the 1st opposite party neither replied nor taken any steps to rectify the defects.
3. Hence, the complainant filed this complaint praying for the direction to the opposite parties to pay a sum of Rs.10,00,000/- as loss of vehicle, to pay Rs.10,00,000/- towards mental peace and mental agony, to pay Rs.1,83,926/- towards taxi charges and to pay interest at Rs.39,040/- and to pay Rs.22,724/- towards loss of insurance premium paid by the complainant and to pay costs of Rs.15,000/-.
4. Version filed by the 1st opposite party stating that the complainant is not a consumer as defined under Sec.2 (1) (d) of the Consumer Protection Act, 1986.
-3-The complainant has not stated that he is a partnership form or a limited company. All the correspondences have been addressed from George Enterprises and the invoice has been issued in the name of Smt.Chellammal Investments, while the complaint is sworn by P.George for and on behalf of Smt.Chellammal Investments. The complaint cannot be maintained at the instance of Mr.P.George, who has no capacity to sue on behalf of the partnership. Since there is no purchase or availing of service for own use and the vehicle has been used by Mr.P.George who is legally unconnected to the partnership firm. No claim of own use or for self employment is made. The complainant facing problems within 30 days or the purchase of the vehicle is false and no documentary proof has been produced by the complainant. The vehicle has covered more than 18,000 kms as on 3.6.2004 which is about 2400 kms per month. The only allegation contained in the complaint is that the vehicle stopped at high speeds and felt jerking and the mistakes found in the vehicle is minor in nature. A joint inspection was conducted in the representative of the complainant and the vehicle was driven more than 200 kms without any problem and took delivery of the vehicle with full satisfaction. The 2nd opposite party has attended the vehicle to the satisfaction of the complainant. After the fitting of the spare parts a test drive was carried out and the complainant was asked to take delivery of the vehicle and the complainant availing fee services and for rectifying various problems. The defects were attended then and there by the 2nd opposite party. But the complainant without accepting the vehicle after -4- servicing the same and insisting replacement of the vehicle with a new one.
No defects were pointed out by the complainant. The complainant is not entitled for the reliefs as claimed in the complaint.
Hence, the complaint is to be dismissed.
5. Version filed by the 2nd opposite party stating that the complaint is not maintainable in law and the complainant is not a consumer under Section 2 (1) (d) of the consumer protection act, 1986. As per the terms and conditions of warranty, he is not entitled to replacement of car, which he had been demanding without reasonable cause. The complainant started experiencing trouble from the new car within30 days after purchase in the form of sudden stoppage ofcar engine even at high speeds. It is also to be noted that the car had run for 17565 kms as on 3.6.2004. The opposite party denied the allegation that the complainant even after several visits to the workshop the defect could not be rectified by the 2nd opposite party and denied the allegations that the 2nd opposite party was unable to find out the actual problem in the care. The complainant had been visiting the 2nd opposite party for availing free services and for rectifying various problems, adjustments which were also done promptly. The complainant sent representation letter dated 4.10.2004 and the specific request of the 1st opposite party in its letter dated 25.2.2004 to the complainant asking him to leave the vehicle at the 2nd opposite party to identify and sort out defects. The complainant had suppressed the materials facts for the reasons best known to him. The vehicle had been last serviced on 24.5.2005 upto 3.6.2004 and the car had run for more than 17565 kms as on 3.6.2004. The -5- complainant had to blame only himself as he did not use the car, keeping it idle in the garage, thereby damaging it permanently. Therefore claims of hire charges, interest charges, insurance premium are untenable. There is no cause of action arise to the complaint. Hence, the complaint is dismissed with exemplary costs.
6. In the course of enquiry both sides have filed their proof affidavits and on the side of the complainant Ex.A1 to A20 were marked and on the side of the opposite party Ex.B1 alone marked. No separate oral evidence is let in by both sides.
7. The points for consideration are :
1. Whether the complainant is not a consumer?
2. Whether the vehicle alleged in the complaint against which relief is sought for being used for the purpose of commercial in nature and thereby the complaint is not maintainable?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. If so to what relief ?
8. POINT NOS.1 & 2 : In the complaint enquiry the complainant M/s.Srimathi Chellammal Investment represented by Mr.P.George, (M/s.George Enterprises) was filed as representative capacity. The representative on behalf of the complainant Srimathi Chellammal Investment made by P.George not filed any documents to show that he was the authorized person to represent to the -6- Srimathi Chellammal Investment being the complainant. The 1st opposite party raised the objection regarding the maintainability of the complaint as Mr.P.George has no locustandi to file the complaint and thereby the complaint is not maintainable. For these on the side of the complainant had contended that the company being the person the legal term is entertainable under the Consumer Protection Act as availed a service from the opposite party and relief upon Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 in which since it is mentioned that the person who buys any goods for a consideration which has been paid or promised and when such use is made with the approval of such person is considered to be a consumer. But in this case the representative of the complainant has not filed any documents to show that he got the approval of such person (Srimathi Chellammal Investment).
9. Further in the same definition it is stated in last few lines as follows :but does not include a person who obtains such goods for resale or for any commercial purpose. As far as in this case is concerned the vehicle alleged to have been defective for which relief or replacing of new vehicle was sought for.
When we consider whether it is for commercial purpose or not for which the learned counsel for the complainant relief upon the legal definition for commercial purpose as follows: Commercial purposes means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business or other undertaking intended for profit. But on perusal of the documents relied upon by the -7- complainant under Ex.A1 Invoice we find that the invoice was issued in favour of Srimathi Chellammal Investment and not in individual name. When the averments of the complaint are perused in para-6 of the cause of action and sub clause-3 which is mentioned because of the existing difficulty the complainant is forced to hire private taxies business to meet his domestic and business travel requirements at a heavy costs and in the complaint also in para-8 regarding the relief sub clause-iii has stated as follows: for which he has filed the bills involving an additional expenditure of Rs.1,83,926/- which is to be compensated by the opposite party and filed under Ex.A16. The opposite party also alleged the defective vehicle was used for 4 months by running to the extent of 18000kms and even though the complainant contended for his personal use as Managing Director the vehicle used cannot be considered for the purpose of commercial in nature. But, whereas when the vehicle was purchased in the name of Srimathi Chellammal Investment which is a financial institution and use of the vehicle for the same purpose as business nature cum domestic purpose cannot be considered as it was only for the purpose of earning his lively hood as per the explanation under Sec.2 (1) (d) of the Consumer Protection Act. Further the learned counsel for the opposite party relied upon the rulings reported in II (2013) CPJ 72 (NC) in the case of General Motors India Pvt.Ltd vs-
G.S.Fertilizers (P) Ltd & Anr in which it is held as follows:
(i) Consumer Protection Act, 1986 Sections 2 (1) (d) (i), 21 (a) (ii) Consumer-Commercial purpose-Purchase of goods vehicle was purchased for -8- use of its Managing Director Managing Director of private limited company would obviously not use this vehicle for self-employment to earn his livelihood but for commercial purpose as per of his office-Amendment Act, 2002 pertains to Section 2 (1) (d) (ii) of Act relating to hiring or availing of services for a consideration and not to Section 2 (1) (d) (i) of Act which relates to purpose of goods Complainant not consumer.
And another ruling reported in MANU/CF/0572/2012 National Consumer Disputes Redressal Commission, New Delhi in the case of Ms.Saavi Gupta Daughter of Dr.Sanjeev Gupta C/o City Hospital and Maternity Home, Opp.Sagar Cinema, Sec.16, Faridabad Haryana and Ors vs- M/s.Omaxe Azorim Developers Pvt.Ltd, (Formerly M/s.Fluorescence Propertis Pvt.Ltd) 10, L.S.C.Kalkaji, New Delhi-110019 (India) and Ors. in which para-11 the last two lines is held as follows :
A person who purchases an auto-rickshaw, a ca or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer.
In our case on behalf of the complainant Srimathi Chellammal Investment representative Mr.P.George using the car to be plied or operated extensively by the representative capacity itself is sufficient to show that the complainant could not be a consumer as per the above ruling and as far as the maintainability for the complaint filed by the representative Mr.P.George, on behalf of original complainant is concerned on the basis of objection raised by the opposite party -9- the complainant has come forward to amend the cause title of the complaint in order to change the name of the complainant from the existing Smt.Chellammal Investment as representative by Mr.P.George to Smt.Chellamal Investment an authorized partner of Mrs.C.Selvi Mary, W/p.P.George, represented by authorized representative P.George, in CMP.284/2011 which was dismissed by this commission by its order dated 21.11.2012 against which no revision or appeal was preferred by the complainant. Further the original complaint was not at all signed either by Chellammal or by partner Mrs.C.Selvi Mary and thereby the complaint in the representative capacity filed is not authorized under Section 12 (1) (c ) of the Consumer Protection Act since no such permission of this Commission was obtained for the purpose of filing complaint in the interest o the complainant and thereby the complaint itself is not maintainable for the reason since the complainant is not a consumer as defined under Sec.2 (1) (d) of the consumer Protection Act and also the relief sought for are all in the nature for the purpose of commercial nature, this complaint is not maintainable and accordingly these points are answered.
10. POINT NO.3 : As far as the merits of the case is concerned the complainant alleged that the newly introduced Model of the TATA SAFARI PETROL CAR was purchased by the complainant on 14.11.2003 and within 30 days he had experienced difficulties in the vehicle due to sudden stoppage of the car engine even at high speeds and on 4.10.2004 he sent a letter to the 1st opposite party and after last service on 24.5.2004 the vehicle kept idle in the -10- garage and thereby the complainant claimed Rs.10,00,000/- as compensation for failure of service rendered and expenses due to loss of Rs.10,00,000/- and business loss by using other hire charges for using taxi of Rs.1,83,926/- and interest for the loss of Rs.39,040/- and insurance amount of Rs.22,724/-. But the complainant failed to produce any expert opinion or report to prove the contentions of the vehicle was become defective even after 30 days of purchase and kept idle. The 1st opposite party contended that the vehicle run for nearly 18000kms from the date of purchase as on 3.6.2004 which is about 2400 kms per month and about 80 kms per day and if the vehicle is having inherent defect such coverage could not be possible and the repairs were attended then and there and free service were also covered.
Further they have filed Ex.B1 to show that the vehicle is regarding the services on 31.3.2004, 3.4.2004 and 23.4.2004 and during those periods rented kms at the beginning on 3.5.2004-10253 kms and as last services 13965 kms and subsequently on 26.7.2004, 15867 and on 26.9.2004, 17565 kms and so this would establish that the vehicle is not having any inherent defects except for certain minor defects and repairs which are rectifiable with the cooperation of the complainant and the opposite party. The complainant had been visiting the 2nd opposite party for availing free services and for rectifying various problems, adjustments which were also done promptly. The complainant sent representation letter dated 4.10.2004 and the specific request of the 1st opposite party in its letter dated 25.2.2004 to the complainant -11- asking him to leave the vehicle at the 2nd opposite party to identify and sort out defects. The vehicle had been last serviced on 24.5.2005 upto 3.6.2004 and the car had run for more than 17565 kms as on 3.6.2004. The complainant had suppressed the materials facts for the reasons best known to him. Further the 2nd opposite party relied upon the rulings reported in I (2010) CPJ 235 (NC) in the case of Classic Automobiles vs- Lila Nand Mishra & Anr in which it is held as follows:
A dealer of a manufacturing company cannot be held liable for deficiency in service in the case of manufacturing defect in a particular consumer product unless it was shown that the manufacturer had sold the car to the dealer on principal-to principal basis. Dealership Agreement has not been brought on record: at least the same has not been shown to us. In the absence of the same, the entire liability to pay the price of the car could not be fixed on the petitioner. Petitioner was only an intermediary between the consumer and the manufacturing company and the responsibility for the manufacturing defect could only be fixed on the manufacturer of the car and not on the dealer.
and in view of the same we are of the view that there s no deficiency on the part of the opposite party and thereby there is no need for any loss to be computed for such defects to the extent of Rs.10,00,000/- as claimed by the complainant and this point is answered accordingly.-12-
In the result, the complaint is dismissed. The parties are directed t o bear their own costs.
A.K.ANNAMALAI R.REGUPATHI (J) MEMBER PRESIDENT INDEX LIST OF DOCUMENTS FILED BY THE COMPLAINANT :
Sl.No Date Description Ex.A1 14.11.2003 Copy of Invoice / Delivery note / RC copy Ex.A2 12.05.2004 Copy of letter sent to the 1st opposite party Ex.A3 18.05.2004 Copy of Reply letter sent from the Deputy Manager (Customer Support) Ex.A4 18.05.2004 Copy of the Reply letter from the General Manager-Service Ex.A5 02.06.2004 Copy of the Reply letter from the General Manager (Customer Support) Ex.A6 19.06.2004 Copy of the 2nd letter to the General Manager (Customer Support) Ex.A7 26.06.2004 Copy of the 3rd letter in Tamil to the General Manager (Customer Support) Ex.A8 30.06.2004 Copy of the Reply letter from the General Manager (Customer Support) Ex.A9 20.07.2004 Copy of the 4th letter to General Manager, (Customer Support) Ex.A10 28.07.2004 Copy of the Letter from the General Manager (Customer Support) Ex.A11 29.07.2004 Copy of the letter from the Regional Manager, PCBU, South Ex.A12 26.08.2004 Copy of the 5th letter to the Regional Customer Support Manager-South Ex.A13 30.08.2004 Copy of the Reply letter from the Regional Customer Support Manager Ex.A14 06.09.2004 Copy of the 6th & Final letter to the Executive Director -13- Ex.A15 04.10.2004 Copy of the Legal notice & Acknowledgement card dated 26.10.2004 Ex.A16 Copy of 14 Nos. of Tourist Taxi bills Ex.A17 16.11.2004 Copy of Insurance Premium receipt for Rs.22,724/-
Ex.A18 25.02.2005 Copy of Reply notice Ex.A19 18.03.2005 Copy of Rejoinder Notice with A/d card EX.A20 15.04.2005 Copy of letter sent by Manager (law) LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :
Sl.No Date Description Ex.B1 Copy of Vehicle History Card A.K.ANNAMALAI R.REGUPATHI (J) MEMBER PRESIDENT INDEX ; YES / NO VL/D;/PJM/ORDERS