State Consumer Disputes Redressal Commission
The General Manager, vs Shri. Policarpo Dosta, on 13 May, 2014
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI GOA FA No. 23 of 2014 The General Manager, Piaggio Vehicles Pvt. Ltd., 101/B, Phonix Bund Garden Road, Opp. Residency Club, Pune 411 001. .Appellant V/s. 1. Shri. Policarpo DCosta, R/o. H.No. 197/3, Adao vaddo, Majorda, Salcete Goa. 2. The Manager, Showroom & Workshop, Murgao Co-operative Industrial Estate, Plot No. C/6, S.no. 10, Chicalim Goa. 3. The Manager, Preva motors, Joshi Bldg., 2nd floor, Vasco-da-Gama, Goa. .Respondents FA No. 25 of 2014 The Manager, Showroom & Workshop, Murgaon Cooperative Industrial Estate, Plot no. C/6, S. No. 10 Chicalim, Goa Hereinafter represented by its Managing Director Mr. Prashant Joshi Major of age, resident of Vasco da Gama, Goa. The Manager, Preva Motors, Joshi Building, 2nd floor, Vasco Da Gama, Goa Hereinafter represented by its Managing Director Mr. Prashant Joshi Major of age, resident of Vasco da Gama, Goa. ..Appellants v/s. 1. Mr. Policarpo DCosta, Son of Mr. William DCosta, Major of age, Indian Nationals. Residing at House no 197/3, Adaovaddo, Majorda, Salcete, Goa. 2. The General Manager, Piaggio Vehicles Pvt. Ltd., 101/B, Phonix Bund Garden Road, Opp. Residency Club, Pune 411 001. ..Respondents Appellant/OP No. 3 is represented by Adv. Shri. N.G. Kamat. Appellant/OP Nos. 1 and 2 are represented by Adv. Shri. A. A. Shetye. Respondent No. 1/Complainant is represented by Adv. Shri. K.L. Bhagat. Coram: Shri. Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 13/05/2014 ORDER
[ Per Justice Shri. N. A. Britto, President] The manufacturer and its authorized dealer, the OPs in CC No. 42/11, have filed these two appeals and they are directed against order dated 31/01/14 of the South Goa District Forum, by which the OPs have been, inter alia, directed to refund to the complainant, the purchase price paid by him.
2. Some bare facts are required to be stated to dispose off these appeals and for that the parties hereto are being referred to in the names as they appear in the cause title of the complaint.
3. The complainant purchased on 03/02/10 from the dealer OP No. 2, a transport vehicle known as Piaggio Ape Truk Mark I, for a sum of Rs. 2,47,500/-, manufactured by OP No.
3. The vehicle had an unmatched unique warranty for one year or 36,000 kms whichever is earlier from the date of sale. It had also an engine warranty of 18 months and unlimited kms warranty on engine and gear box from the date of sale. As regards the warranty itself, it was explained that every product irrespective of its superiority needed some protection against defect for initial period of usage, which protection period was called as warranty period.
4. The complainant had a gear problem with the vehicle purchased by him and as can be seen from the certificate obtained by him from the dealer dated 5/10/10. To the exact nature of the problem, we shall see a little later. The complainant had to take the vehicle to the workshop of the dealer on 5/2/10 itself and on 8 more occasions as reflected therein, the last being on 23/8/10. The complainant on or about 18/08/10 addressed a letter to the dealer, OP No. 2, with copy to the manufacturer, OP No. 3, stating that the gears of the vehicle did not shift properly, resulting in the breakdown of the vehicle and the vehicle was breaking down very often due to gear box problem and that the vehicle inspite of being repaired and serviced, the defect could not be rectified and the vehicle continued to breakdown. The OPs were called upon to replace the vehicle, the same being defective and unfit for use within 15 days of the receipt of the notice. The complainant, thereafter, on or about 29/10/10, approached the Consumer Conciliation Committee set up by the State Consumer Protection Council, again with a request that the vehicle should be replaced, and, as the said Consumer Conciliation Committee would not settle the dispute for over a year, as stated by the complainants wife, the complainant filed the complaint on 11/11/11 not for replacement of the vehicle but for refund of the purchase price with interest at the rate of 18%, for compensation of Rs. 2 lacs for stress and tension, and Rs. 2 lacs as damages besides costs, etc.
5. The first objection taken by the OPs was that the complainant was not a consumer as defined under the C.P. Act, 1986. The said objection has been decided against the OPs by the Lr. District Forum, relying on the decision of the Supreme Court in Laxmi Engineering Works vs. P.S.G. Industrial Institute, 1995 STPL (CL) 282, and the decision of this State Commission in the case of Alfran Constructions, FA No. 63/13, decided on 18/12/13.
6. The Lr. District Forum has held that although the complainant had stated in para 4 of the complaint that the vehicle was purchased by him with the sole intention of using the same for commercial purpose, the Lr. Forum did not find any evidence on record that the vehicle was used for any other commercial purpose except for his own self employment.
7. Shri. Kamat as well Shri. Shetye, the lr.
advocates on behalf of the OPs, would contend, with a view to assail the said finding, that the complainant was already having his business of renting out pandals, chairs, crockery for marriage functions, but had purchased the vehicle in question, to run for the commercial purposes, as stated by the complainant himself in para 4 of the complaint and not for earning his livelihood, and, therefore the complainant could not have been considered to be a consumer as defined under the C.P. Act, 1986. Lr. Adv. Shri. Kamat has placed reliance on a decision of this Commission in the case of M/s. Cholamandalam Investment & Finance Company Limited, FA No. 19/10 decided on 3/1/13 and reported in I 2013 CPJ 34.
8. On the other hand, Shri. Bhagat, the lr.
advocate of the complainant would submit that the entire complaint is required to be read as a whole to find out whether the complainant has purchased the vehicle in question for the purpose of earning his livelihood by means of self employment or for commercial purpose.
Lr. advocate would submit, relying on the decision of the National Commission in Larsen and Toubro Ltd. & Ors. vs. Sunder Steels Ltd. & Ors., (2009) 3 CPR 182, that even if the vehicle is purchased for commercial purpose, the purchaser would be a consumer under Section 2(1)(d)(ii) in respect of service to be rendered by the manufacturer or supplier during the period of warranty. This decision was followed by Kerala State Commission in Pioneer Motors Pvt. Ltd. vs. N. Chandran, Winspot Tailors & Anr., 2010 (1) CPR 175.
9. We are unimpressed with the submissions made by both the parties.
10. A perusal of the complaint would show that the complainant was earning his livelihood by means of self employment doing a small business of renting to people pandals, chairs, crockery and other items for marriages, as stated by the complainant in para 1 of the complaint. Presumably, the complainant had to engage a transport vehicle, to transport the said pandals, chairs, etc. and with the view to increase his income he thought of purchasing a vehicle so that he could carry his own goods for his business and the goods of others, with a view to earn another Rs. 1000/- to Rs. 5000/-, as stated by him in para 2 of the complaint. No doubt the complainant, stated in para 4, that he purchased the vehicle with the intention of using the same for commercial purpose as a goods carrier.
Para 4 of the complaint had necessarily to be read with para 2 and when so read it would only show that the complainant had purchased the vehicle in question to continue doing his business of renting out pandals as well as to carry the goods for others with a view to augment his income and impliedly for the purpose of earning his livelihood and not for any commercial purpose, as is generally understood. In this regard, we may refer to what the Apex Court had stated in Laxmi Engineering Works (supra). The Apex Court has held that the explanation (below Section 2(1)(d)(ii)) however, clarifies that in certain situations, purchase of goods for commercial purpose would not yet take the purchaser out of the definition of expression consumer. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a consumer. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self-employment, for earning his livelihood, it would not be treated as a commercial purpose and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a commercial purpose, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., uses them by himself, exclusively for the purpose of earning his livelihood and by means of self-employment make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood (emphasis supplied).
11. The facts stated by the complainant would show that he had purchased the transport vehicle in question to carry his own goods like pandals, chairs, etc as well as the goods of others with a view to earn something more, in the business he was doing, by driving the vehicle by himself. In the circumstances, therefore, the Lr. District Forum could not be faulted in entertaining and deciding the complaint as the complainant was very much a consumer within the meaning of that expression as defined in Section 2(1)(d)(ii) of the C.P. Act, 1986 as the complainant had purchased the rickshaw for the purpose of earning his livelihood by taking his own goods and those of others.
12. The case of Cholamandalam Investment and Finance Company Ltd., I 2013 CPJ 34 can be easily differentiated. There the complainant was self employed and was already having a vehicle, an old pick-up of 1994 model and was driving the same to earn his livelihood and another pick-up was purchased by the complainant to earn profits by hiring the same with Marico Company after repairing and hiring the same to the said company and it is in those circumstances it was held by this Commission that the complainant had purchased the Eicher Tempo for commercial use. The decision in Larsen &Toubro Ltd. and ors. (supra) does not seem to lay down the law correctly. Are we to say that in case the complainant had purchased two such vehicles for the purpose of resale, would the complainant be still a consumer only because during the warranty period the said vehicles were required to be serviced by the supplier or manufacturer? We leave it at that.
13. On merits of the case, the complainant had averred that the vehicle purchased by him had stopped working for about 25-30 occasions and the complainant had often to take his vehicle for servicing and the dealer would never issue any bills or acknowledgement to the complainant to show that the complainant had visited the service station and when the complainant insisted that the dealer issue to him a statement, the said statement/certificate dated 5/2/10 was issued though the said statement/certificate does not record all the visits made by the complainant to their workshop. The case of the complainant was that despite repeated visit to the service center, the defects in the vehicle are not cured and therefore the vehicle had to be scrapped being irreparable and unsafe, and, therefore he had no other alternative then to approach the Forum to direct the OP to refund the consideration paid for by him as there appeared to be an inherent defect in the said vehicle, being defective.
14. The answer of the manufacturer, OP No. 3, was that the vehicle was supplied to the complainant free from defect after it was stringently checked and passed by quality control department of the manufacturer before it was dispatched to the dealer who carried out a pre-delivery inspection. It was the case of the dealer, OP No. 2, that there is no problem with the gear shifting of the vehicle and the vehicle of the complainant was in perfect condition. The dealer has further stated that the complainant would visit their workshop for normal servicing and the complainant never told the staff of the dealer that the said vehicle had gear shifting problem as alleged by the complainant in his complaint and the complainant used to do the normal check-up of the vehicle by changing the engine oil, oil filter, etc.
15. The complainant did not place on record the warranty nor examined any expert. We have already noted that the manufacturer had a warranty given on engine and gear box.
16. In the case of Maruti Udyog Ltd., vs. Hasmukh Lakshmichand & anr., III (2009) CPJ 229, the National Commission has held that the onus to prove the defect is on the complainant and that Section 13(1) (c) of the C.P. Act, 1986 provides that if a complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain sample of the goods from the complainant, seal it and send it to such Laboratory which makes an analysis or test whichever may be necessary with a view to find out whether such goods suffer from defect alleged in the complaint or from any other object (defect?) and report it back to the District Forum based on which the District Forum determines the dispute between the parties. The National Commission has also held that manufacturing defect is much more than an ordinary defect which can be cured by replacing the defective part. Manufacturing defect is fundamental basic defect which creeps while manufacturing a machinery. To prove such a defect, opinion of an expert is necessary. This Commission has held in Goa Motors Pvt. Ltd., vs. M/s. Sydney and Lyndon Realtors and Associates (FA No. 5/12 decided on 28/06/02) that under Section 13 of the C.P. Act, 1986, the burden to prove the defect or deficiency, if any, on the part of the OP is on the complainant, and, after referring to M/s. Scooters India Limited & anr. vs. Madhabananda Mohanty & ors., unreported order dated 07/02/03 in RP No. 240/02, has held that it is always not necessary for a consumer to give expert testimony though if he does so it will add to the weight of the evidence and that this Commission in Maruti Suzuki India Limited has held that the onus of proof primarily has to be discharged by the complainant to show that there was any manufacturing defect in the vehicle purchased by the complainant and that could be done either by leading evidence of an expert or some job cards or atleast some correspondence to that effect.
17. There is no doubt that the vehicle purchased by the complainant had some gear problem but it is difficult to fathom the exact nature of the said problem as the complainant has not examined any expert to find out the exact nature of the problem. From the averments of the complaint, it appears that the gears would abruptly shift while the vehicle was in motion and the vehicle would then break down. This is very much evident from the avernments in para 5 and 23 of the complaint. The witnesses whose affidavits the complainant has filed say more or less the same thing. For example, Rohidas Dessai states that he tried to drive the vehicle of the complainant and the gears had the problem as they would shift automatically when the vehicle was in motion. He does not speak of the vehicle breaking down. On the contrary, the certificate dated 5/10/10 produced by the complainant speaks of the gears getting stuck, and, whenever the vehicle was brought to the workshop, the problem was rectified. One need not accept anything and everything stated by the complainant. If the dealer, OP No. 2, could give the said certificate, the dealer must have given to the complainant job cards or acknowledgments, whenever the vehicle was taken to the workshop.
18. We, therefore, could proceed on the basis of the said certificate that the complainants vehicle had a problem with the gearbox, in that, the gears would often get stuck and thus the vehicle would break down.
19. Before the Lr. District Forum, reliance was placed by the OPs on the case of Goa Motors Pvt. Ltd., (supra) and the Lr. District Forum felt that the ratio of the said case was not applicable to the case at hand. In the case of Goa Motors Pvt. Ltd., (FA No. 05/12 decided on 28/06/12) this State Commission, after placing reliance on the decision of the Apex Court in Maruti Udyog Ltd., 2006(4) SCC 644 which judgement was followed by the National Commission in the case of Sushila Automobiles Pvt. Ltd., (order dated 7/5/10 in RP No. 1652/06) and this Commissions own decision in Maruti Suzuki India Ltd., vs. Ana Paula Sanches and several other decisions had concluded as follows:
35. We could go on and on. What follows from the above cases is that when the part is found to be defective, the same is to be replaced and the defect rectified.
The demand for the replacement of the entire engine or the entire vehicle was most unfair and un-responsible.
20. The above decision of this Commission was upheld by the National Commission in Sydney and Lyndon Realtors and Associates, 2012(4) CPR 16, observing further that relief to be granted has to be commensurate with the kind of defect in the vehicle and that the relief granted by the State Commission was just an reasonable.
21. It is rightly pointed out, on behalf of the dealer, OP No. 2, by Lr. Adv. Shri. Shetye that the vehicle is with the complainant and now for over 4 years and it is not in the case of the complainant anywhere in the complaint that the complainant has not been using the said vehicle. Lr. Adv. Shri. Shetye, on behalf of the dealer, has submitted that if at all the problem is with the gear box, they are ready and willing to replace the said gear box. The same refrain has been sounded by Shri. Kamat, the Lr. advocate of the manufacturer, OP No. 3.
22. The Lr. District Forum may not be right in concluding that the vehicle was attended 12 times and the defect could not be rectified. The problem of the gear getting stuck appears to have been rectified 9 times, including on one occasion, when the clutch assembly was replaced. There is nothing on record to suggest that the complainants vehicle suffered from the same defect after 23/08/10, as can be seen from the said certificate dated 5/10/10. As rightly pointed out on behalf of the dealer, the complainant must have been certainly using the vehicle now for over 4 years and that being the case the Lr. District Forum, in our view, was not at all justified in ordering the refund of price paid for the said vehicle by the complainant. The problem with vehicle was with its gears. Gear box is a replaceable part. The defect ought to have been ordered to be rectified by changing the gear box as per the ratio of Goa Motors Pvt. Ltd. (supra).
23. We, therefore, allow the appeals partly with no order as to costs and direct the OPs to replace the gear box of the vehicle within a period of 30 days with the same warranty as before in lieu of refund of price ordered by the Lr. District Forum, in terms of prayer (a) of the complaint. The other reliefs granted by the Lr. District Forum to the complainant will remain unaltered. Replacement of the gear box to be done by the OPs jointly and severally within a period of 30 days.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto] Member President