KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU
Huluvadi G. Ramesh, President, K.B. Sangannanavar, Judicial Member and M. Divyashree, Lady Member
H. Rajesh Madival – Appellant
versus
The Manager, M/s. Mahendra Navistar Automobiles Ltd. and Anr. – Respondents
Appeal No.1231 and 1232 of 2016
Decided on 24.11.2021

IMPORTANT POINTS
1) Appellant/Complainant owning 2 other tipper vehicles, using them to earn profit by giving on hire purchase basis to customers; hence, estopped to claim anything against Respondents alleging deficiency in service as he ceases to be consumer under CP Act.
2) Complainant did not make any effort to subject his commercial vehicles for expert opinion to prove alleged manufacturing defect and deficiency in service on part of Respondents

Headnote:

Consumer Protection Act, 1986 – Section 15 - First Appeal [Consumer Protection Act, 2019 – Section 41] – First Appeal against the Order dt. 25.02.2016 passed by Distt. Commission - Appellant/Complainant purchased 2 Mahindra Navistra tipper/vehicle from Respondent no. 2/dealer for Rs.24 lakhs each, got it delivered on loan-cum-hypothecation basis – Appellant/Complainant alleged that within 15 days both vehicles came for frequent/major repairs but Respondents refused to repair though it was under warranty, incurred expenses of Rs.2,16,949/- and Rs.2,85,153/- for 2 vehicles, suffered loss, couldn’t pay instalments – Alleging manufacturing defects and deficiency in services filed Complaint before Distt. Commission - Distt Commission dismissed the complaint as not maintainable as financier had seized the said vehicle, sold it - Appellant/Complainant failed to establish that he is a consumer within the definition of the CP Act – Hence, the Appeal – Findings of this Commission: Appellant/Complainant is not a consumer within the purview of the CP Act – Appellant/Complainant was owning 2 other tipper vehicles, using them to earn profit by giving on hire purchase basis to customers – Appellant/Complainant is estopped to claim anything against Respondents alleging deficiency in service as he ceases to be consumer under CP Act – Further, Complainant did not make any effort to subject his commercial vehicles for expert opinion to prove alleged manufacturing defect and deficiency in service on part of Respondents

Held: The brief facts of the case of the Complainant before the District Forum are: The Complainant submits that, he has purchased two Mahindra Navistra MN25 tipper/vehicle (manufactured by OP.1) bearing reg.no.KA-36A/3972 and KA-36A/3971 from the dealer/OP.2 for Rs.24 lakhs each and got it delivered on 11.04.2012 on loan-cum-hypothecation basis by obtaining the finance from L&T finance/financier and to repay the loan of Rs.77,000/- per month for one vehicle in 35 instalments. The said vehicles were purchased to use them on hire purchase basis to various customers and thereby earn money. The Complainant alleged that within 15 days of the delivery of the said vehicles it came for repairs and further lead to frequent/major repairs. But Ops refused to repair though it was under warranty. Hence at his own cost he got repair the said vehicles around 9 times incurring expenses of Rs.2,16,949/- and 17 times incurring expenses of Rs.2,85,153/- respectively, thereby suffered loss and unable to pay the instalments. When the financier threatened to seize the vehicles, he filed suit against him. Financier appeared in the said suit and seized the said vehicles and taken in to his custody. Hence alleged that due to manufacturing defects in the said vehicles he suffered loss and thereby there is deficiency in service on the part of OPs in refusing to repair the same even under warranty period. Hence he filed consumer complaint. Both Ops have taken common contention stating that the Complainant has not followed the instructions as mentioned in the owner’s manual and service book for its smooth running and also failed to carry out the schedule services of the vehicles as per the recommendations. They have carried out only eligible free services whenever it brought for schedule services. Further contended that the Complainant has suppressed the material facts that the said vehicles were met with frequent accidents and brought at the workshop of OP.2 for accidental repairs. The same was not attended as the warranty shall not apply to any repairs or replacement in the vehicle in the event of accident or collusion. Further they were used to carry out extra load than the approved load capacity. As such Complainant himself has breached the contractual terms. Further contended that in 8 to 12 months the said vehicles had covered around 22866 to 29352 kms respectively, which itself proves that these are absolutely in road worthy condition. Since the issue in question involves bundle of facts, necessarily requires trail which can be adjudicated before Civil Courts only. Ops further strongly contended that, Complainant himself admitted that he has purchased the said vehicles for giving on hire purchase basis to various customers to earn money. Apart from the said vehicles he is having two other tipper vehicles and had been using these also to earn profits. Hence contended that the said vehicles have been used for commercial activities in order to generate profits and has covered more than 22866 to 29,352 kms within a period of 8 to 12 months, so the extensive usage itself shows that it is not a normal usage of the vehicle and he has not shown any proof to show that the vehicles having been used for livelihood, thereby he is not a ‘consumer’ as defined under CP Act. In such circumstances, prays for dismissal of the complaint.

The Commission below enquired in to the complaint and rival contentions of both parties and also of the records, proceed to dismiss the complaint as not maintainable on the ground that the financier already seized the said vehicle and got it sold and Complainant failed to establish that he is a consumer within the definition of the CP Act. Further given liberty to the Complainant to approach any other courts of law wherein his claims are maintainable against these OPs.

No doubt it is true that, OPs have rightly contended that the Complainant is not a consumer since the Complainant has not mentioned anything in his complaint to substantiate his stand in respect of usage of the said vehicle exclusively for the purpose of earning his livelihood by means of self-employment. Hence in the absence of said material aspect, we come to the conclusion that the Complainant is not a consumer comes within the purview of the CPA. The Complainant to prove his stand cited the decision before the Commission below reported in II (2005) CPJ Page 136 NC, not come to his aid because in the said case it is held as ‘only one vehicle that has been purchased for commercial purposes on hire basis and the Complainant therein uses the same for earning his livelihood by means of his self employment’, whereas in the present case, apart from the said vehicles he was owning two other tipper vehicles that are using to earn profit by giving on hire purchase basis to his customers.

We further noticed that, the Complainant before the Commission below by filing written arguments submitted that, he suffered loss on account of frequent repairs and thereby he was quite unable to pay the further instalments to the financier. Hence the financier seized the said vehicle and sold for unjustifiable lower price that too without the knowledge of the Complainant. It is worth to mention here that, when the said vehicles were sold during the pendency of the case, as admitted by the Complainant, then he is estopped to claim anything against OPs alleging deficiency in service as he seizes to be a consumer under CP Act. To substantiate this, OPs cited the decision reported in 2013(4) CPR Page 543 NC, wherein it is held that ‘District forum and State Commission passed the order in favour of the Complainant without any expert opinion; the Complainant sold his car during pendency of the appeal; the Complainant seizes to be a consumer under CP Act and in such circumstances the complaint is liable to be dismissed on the sole count; impugned order set aside and complaint dismissed.’ In the present case the Complainant himself admitted that the said vehicles in question have already been sold, under such circumstances and in view of the said decision the complaint is liable to be dismissed.

Apart from these views, we further observed that, the Complainant to prove his case in respect of alleged manufacturing defect in the said vehicles and also deficiency in service on the part of OPs, not made any effort to subject his vehicles for expert opinion. Hence in the absence of expert opinion, the complaint is liable to be dismissed. Accordingly in view of all these observations, we proceed to dispose off the Appeal No.1231/2016 and 1232/2016 holding that the Commission below rightly dismissed the complaint and could not find any just reasons to interfere in the impugned order passed in CC.No.66/2013 & 67/2013. (Paras 3, 4, 9, 10 & 11)

Result: Complaint as well as the Appeal dismissed.