State Consumer Disputes Redressal Commission
M/S Ashok Leyland Limited vs Mukesh Tomer on 26 April, 2023
Appeal No. M/s Ashok Leyland Limited 26.04.2023
256 of 2015 Vs.
& Sh. Mukesh Tomar & Ors.
Appeal No.
257 of 2015 AND
Doosan Infracore
Vs.
Sh. Mukesh Tomar & Ors.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 19.11.2015
Date of Final Hearing: 15.03.2023
Date of Pronouncement: 26.04.2023
First Appeal No. 256 / 2015
M/s Ashok Leyland Limited (Power Solution Business)
Sardar Patel Road, Guindy, Chennai
Through Sh. N. Suresh Kumar S/o Sh. P. Natraj
R/o M/s Ashok Leyland Ltd. Power Solutions Busniess
Registered Office: Sardar Patel Road, Guindy, Chennai
(Through: Sh. Vikrant Gambhir, Advocate)
.....Appellant
VERSUS
1. Sh. Mukesh Tomar S/o Sh. Bhav Singh Tomar
R/o Langa Road, Vikar Nagar, Dehradun
(Through: Sh. Suman Lal Thapliyal, Advocate)
.....Respondent No. 1
2. Doosan Infracore India Pvt. Ltd.
3rd Floor, TNPL Building No. 67
Mount Road, Guindy, Chennai
3. Sh. Manish Sethi (Director)
43/1, Rajeshwaripuram, Haridwar Road, Dehradun
(Through: Sh. S.K. Gupta, Advocate)
.....Respondent Nos. 2 & 3
AND
Date of Institution: 19.11.2015
Date of Final Hearing: 15.03.2023
Date of Pronouncement: 26.04.2023
1
Appeal No. M/s Ashok Leyland Limited 26.04.2023
256 of 2015 Vs.
& Sh. Mukesh Tomar & Ors.
Appeal No.
257 of 2015 AND
Doosan Infracore
Vs.
Sh. Mukesh Tomar & Ors.
First Appeal No. 257 / 2015
1. Doosan Infracore
Doosan International India Pvt. Ltd.
No. 21/11 & 21/02, Canal Road, Koodapakkam Village Valuduur
South Puducherry
2. Sh. Manish Srineth, Director
Moveit Infra Services, House No. 30, Vivekanand Gram
Near Jogiwala, Dehradun
(Through: Sh. S.K. Gupta, Advocate)
....Appellants
Vs.
1. Sh. Mukesh Tomar S/o Sh. Bhav Singh Tomar
R/o Langha Road, Vikas Nagar, Dehradun
(Through: Sh. Suman Lal Thapliyal, Advocate)
.....Respondent No. 1
2. Ashok Leyland, Power Solution Business
No. 1 Sardar Patel Road, Guindee, Chennai
(Through: Sh. Vikrant Gambhir, Advocate)
.....Respondent No. 2
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
These appeals under Section 15 of the Consumer Protection Act, 1986 have been directed against the judgment and order dated 28.05.2015 passed by the learned District Consumer Disputes Redressal Forum, Dehradun (hereinafter to be referred as the District Commission) in 2 Appeal No. M/s Ashok Leyland Limited 26.04.2023 256 of 2015 Vs. & Sh. Mukesh Tomar & Ors.
Appeal No. 257 of 2015 AND Doosan Infracore Vs. Sh. Mukesh Tomar & Ors.
consumer complaint No. 381 of 2012 styled as Sh. Mukesh Tomar Vs. Doosan Infracore India Pvt. Ltd. and others, wherein and whereby the complaint was allowed by the District Commission directing the opposite parties, jointly and severally, to provide new compressor in place of old one alongwith Rs. 5,00,000/- incurred by the complainant as rent of J.C.B. and Rs. 3,50,000/- as compensation to the complainant within 30 days from the date of judgment. In default simple interest shall be payable @ 6% per annum from the date of filing of consumer complaint till its actual realization.
2. As both the appeals have arisen from the same judgment and order dated 28.05.2015, therefore, it is just, proper and appropriate to decide them together for the sake of convenience.
3. The facts giving rise to the present appeal, in brief, are as such that the complainant has filed a complaint before the District Commission alleging himself as a resident of Langa Road, Vikasnagar, Dehradun, who was involved in the business of contractor and for the contract work he purchased Doosan Air Compressor Portable Stone Air 2 Model on 29.02.2012 amounting to Rs. 5,94,999/- from the respondent No. 2 - opposite party No. 1. In the complaint, the complainant has averred that the respondent No. 2 - opposite party No. 1 is the dealer of the said machine, appellant - opposite party No. 2 is the manufacturer of the said machine and respondent No. 3 - opposite party No. 3 is the service centre and the dealer of the said machine. It is also alleged in the complaint that the complainant after purchasing the said machine took the same to Uttarkashi for some work but the pump of the said machine was not properly functioning and some problem has accrued and the same was 3 Appeal No. M/s Ashok Leyland Limited 26.04.2023 256 of 2015 Vs. & Sh. Mukesh Tomar & Ors.
Appeal No. 257 of 2015 AND Doosan Infracore Vs. Sh. Mukesh Tomar & Ors.
brought into the knowledge of the mechanic of service centre - opposite party No. 3 and the same was attended by the opposite party No. 3. After expiry of two days, the engine was seized and the same problem was intimated to the service centre - opposite party No. 3; on 23.04.2012 the opposite party No. 3 inspected the machine and took the pump and brought the same to Dehradun, which was fitted on 17.05.2012, but the same stopped functioning after two - three days and again the complaint was made and the same procedure was followed by the respondent No. 2 - opposite party No. 1, but the problem continued to occur. It is further alleged by the complainant in the complaint that the mechanic of the appellant - opposite party No. 2 inspected the compressor and told the complainant that the back compression and the piston was not functioning properly and there is some problem in the engine of the said compressor and further assured the complainant that the same will be changed by the appellant - opposite party No. 2. But despite of regular correspondence, the same was not changed and the complainant had to face losses and problems for which the appellant alongwith the respondent Nos. 2 & 3 were responsible. In order to complete the contract, the complainant took the compressor on rent of Rs. 50,000/- per month alongwith JCB machine on rent of Rs. 2,45,000/- per month; the complainant had also incurred labour loss of Rs. 6,00,000/- due to the said problem; the complainant sent a legal notice to the appellant and respondent Nos. 2 & 3 to change the compressor and to compensate the complainant, but all in vain. After sometime, the appellant and respondent Nos. 2 & 3 approached the complainant and discussed the problem and assured the complainant that the complaint of the machine will be attended and the complainant will also be compensated for the losses incurred due to non-functioning of the said machine. In such 4 Appeal No. M/s Ashok Leyland Limited 26.04.2023 256 of 2015 Vs. & Sh. Mukesh Tomar & Ors.
Appeal No. 257 of 2015 AND Doosan Infracore Vs. Sh. Mukesh Tomar & Ors.
circumstances, the complainant has filed the complaint before the District Commission.
4. The opposite parties did not appear inspite of the service of summons, hence the District Commission was pleased to proceed the complaint ex-parte against the opposite parties.
5. The District commission after perusing the material and evidence available on record passed the judgment dated 28.05.2015 wherein it was held as under:-
"ifjoknh }kjk ;ksftr ;g ifjokn foi{khx.k ds fo:) ¼la;qDrr% ,oa i`Fkdr%½ nks'kiw.kZ dEçslj ds LFkku ij u;k dEçslj fnykus] ts0lh0ch0 dk fdjk;k Lo:i vadu ik¡p yk[k :i;s] dEçslj ds fdjk;s dh en esa nks yk[k ipkl gtkj :i;s] {kfriwfrZ Lo:i ,d yk[k :i;s dh çkfIr gsrq Lohdkj fd;k tkrk gSA foi{khx.k mijksDr /kujkf"k 30 fnu ds vUnj ifjoknh dks vnk djuk lqfuf"pr djsa ;fn fufnZ'V vof/k esa /kujkf"k dh vnk;xh ugha dh tkrh gS rks ifjoknh mijksDr leLr /kujkf"k ij ifjokn lafLFkr djus dh frfFk ls olwyh rd 8% okf'kZd C;kt Hkh çkIr djus dk ik= gksxkA"
6. On having been aggrieved by the aforesaid judgment of the District Commission, the First Appeal No. 256 of 2015 has been preferred by the appellant - Ashok Leyland Limited, (Power Solution Business) (opposite 5 Appeal No. M/s Ashok Leyland Limited 26.04.2023 256 of 2015 Vs. & Sh. Mukesh Tomar & Ors.
Appeal No. 257 of 2015 AND Doosan Infracore Vs. Sh. Mukesh Tomar & Ors.
party No. 2) and another First Appeal No. 257 of 2015 has been preferred by the appellants - Doosan Infracore and another (opposite party No. 1). Because both the appeals are preferred against the same judgment, hence it is convenient, proper and just to decide both the appeals together.
7. In the appeal No. 256 of 2015, the appellant - opposite party No. 2 has averred that the impugned judgment is an ex-parte judgment passed against the law and evidence led by the respondent No. 1 - complainant. It is further averred that the District Commission has overlooked the evidence filed by the respondent No. 1 - complainant and has passed the impugned ex-parte judgment against the appellant on assumption and presumption. It is also averred that the District Commission has failed to consider the fact that there is no privity of contract between the appellant - opposite party No. 2 and respondent No. 1 - complainant. It is further averred that the District Commission has failed to consider the fact that the utilization and usage of compressor purchased by the respondent No. 1 - complainant is a different product / machine from the one hired by him from Mobile Drill Master. There is technical and valuable difference between the two products / machines. It is further averred that the respondent No. 1 - complainant has purchased the Portable Stone Air 2 Doosan Compressor at Dehradun and the appellant - opposite party No. 2 has placed of business at Chennai, hence the District Commission has no territorial jurisdiction to entertain the complaint against the appellant - opposite party No. 2. It is further averred that the District Commission had wrongly interpreted the provisions of Consumer Protection Act and had failed to appreciate the fact that the respondent No. 1 - complainant is not a 'consumer' as per the provisions of Consumer Protection Act, 1986. It is well settled law that every case must be decided on merits. The impugned judgment is an ex-
6
Appeal No. M/s Ashok Leyland Limited 26.04.2023
256 of 2015 Vs.
& Sh. Mukesh Tomar & Ors.
Appeal No.
257 of 2015 AND
Doosan Infracore
Vs.
Sh. Mukesh Tomar & Ors.
parte judgment; the District Commission has failed to appreciate the fact that the respondent No. 1 - complainant has not approached the Commission below with clean hands as he is having malafide intentions and ulterior motive to harass the appellant. Hence, the complaint is liable to be dismissed. Appeal is liable to be allowed by setting aside the impugned ex-parte judgment.
8. In the appeal No. 257 of 2015, the appellants have averred the same grounds that the impugned judgment is an ex-parte judgment; the respondent No. 1 - complainant got the compressor serviced and continuously used for his business purposes, but all the facts have been hidden by him before the District Commission. Other grounds are the same as averred in the appeal No. 256 of 2015.
9. We have heard learned counsel for the parties and perused the impugned judgment.
10. A perusal of the order sheet of the complaint case, it is apparent that inspite of the service of summon, appellants - opposite parties did not appear, hence an ex-parte order was passed against them.
11. It is correct to say that the impugned judgment is an ex-parte judgment, but it has to be seen whether the complaint was entertainable within the parameters of provisions of Consumer Protection Act, 1986. It is an established principle of law that the complainant should come within the definition of 'consumer' according to the provisions of the Consumer Protection Act, 1986 and if the same is lacking, then no complaint shall be entertainable under the Consumer Protection Act, 1986.
7
Appeal No. M/s Ashok Leyland Limited 26.04.2023
256 of 2015 Vs.
& Sh. Mukesh Tomar & Ors.
Appeal No.
257 of 2015 AND
Doosan Infracore
Vs.
Sh. Mukesh Tomar & Ors.
12. According to the complaint, the respondent No. 1 - complainant has averred for doing business as Thekedar (contractor) and he has clearly admitted in the complaint itself that he is the contractor and had purchased the compressor for using in his business of executing contracts. In the complaint, the respondent No. 1 - complainant has nowhere stated that he is doing a business of contractor for his livelihood by means of self- employment. As per the pleadings of the complaint, it is proved that the subject product was being purchased for commercial purposes which was used in commercial activities.
13. The terms 'consumer' is defined in Section 2(d)(i)&(ii) of the Consumer Protection Act, 1986, which is reproduced 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 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 8 Appeal No. M/s Ashok Leyland Limited 26.04.2023 256 of 2015 Vs. & Sh. Mukesh Tomar & Ors.
Appeal No. 257 of 2015 AND Doosan Infracore Vs. Sh. Mukesh Tomar & Ors.
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom-
ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 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 but does not include a person who avails of such services for any commercial purposes;
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"
14. Thus, as per the explanation of the above provisions of Section 2(d)
(i) & (ii) it is specifically defined that the purchase of any product, machine and goods for commercial purpose does not come within the definition of 'consumer'. Thus, as per the definition clause, the respondent No. 1 -
complainant is not a 'consumer'. Hence, the Consumer Protection Act, 1986 is not applicable, therefore, the Consumer Commission has no 9 Appeal No. M/s Ashok Leyland Limited 26.04.2023 256 of 2015 Vs. & Sh. Mukesh Tomar & Ors.
Appeal No. 257 of 2015 AND Doosan Infracore Vs. Sh. Mukesh Tomar & Ors.
jurisdiction to entertain the complaint of the respondent No. 1 - complainant.
15. Hereinbefore appreciated that the respondent No. 1 - complainant is not a consumer within the definition of the Consumer Protection Act, 1986, hence there is no relevance to discuss other points raised in the memo of appeals. Therefore, we are of the view that the impugned judgment is liable to be set aside and both the appeals are liable to the allowed.
16. Accordingly, the Appeal No. 256 of 2015 and Appeal No. 257 of 2015 are allowed. Impugned judgment is set aside and the complaint case shall stand as dismissed. No order as to costs of the appeals. It is further ordered that the respondent No. 1 - complainant may file fresh complaint before the competent Court within three months from the date of this judgment, if the respondent No. 1 - complainant desires to file the same.
17. Statutory amount deposited by the appellants in both the appeals be returned to the appellants of both the appeals.
18. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of this order alongwith original record of the District Commission be sent to the concerned District Commission for record and necessary information.
19. Appeal files be consigned to the record room alongwith a copy of this Judgment.
10
Appeal No. M/s Ashok Leyland Limited 26.04.2023
256 of 2015 Vs.
& Sh. Mukesh Tomar & Ors.
Appeal No.
257 of 2015 AND
Doosan Infracore
Vs.
Sh. Mukesh Tomar & Ors.
20. A copy of this judgment be kept in the connected First Appeal No. 257 of 2015.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 26.04.2023 11