HINDUSTAN MOTORS LTD. vs NARAYAN PUNDALIK TAMANKAR

FIRST Appeal No. 472 of 1993 has been filed against the Order dated 17.8.93 passed by the Goa State Consumer Disputes Redressal Commission, Panaji in Complaint No. 55 of 1992 directing M/s. Hindustan Motors Ltd., Calcutta (opposite party No. 1) to replace the vehicle of the complainant within a period of 30 days from the receipt of the said order. Opposite party No. 1 is the appellant, and the complainant and opposite party No. 2, an authorised agent/dealer of opposite party No. 1 are respondents No. 1 and 2 respectively before us.

THE complainant, a driver by profession, had purchased an Ambassador Car (Hindustan Diesel Deluxe) on 12.2.90 from opposite party No. 2. He was depending upon the said vehicle for his livelihood and also to repay the loan taken for the purchase of the vehicle. After about 6 months of purchase of the vehicle, he noticed that the body of the vehicle was defective and had started corroding with the result that it developed dents and holes all over the body. According to the complainant, he took the vehicle on several occasions to opposite party No. 2, but the repairs carried out could not hold on for long. With the passage of time, the condition of the car was deteriorating; handle of rear door gave way and the door remained suspended for sometime. The complainant averred that as he could not ply the vehicle regularly and had to spend on repairs, it was extremely difficult for him to repay the Bank loan instalments in time which resulted in accumulation of liability. The complainant also produced on record before the State Commission (i) a certificate from one Mr. M.V. Bharne who had recommended the complete overhauling of the vehicle by replacing a totally new body, and (ii) a letter dated 24.9.92 from the State Bank of India addressed to opposite party No. 1 confirming that the vehicle had in less than one year''s time shown deterioration to such an extent that it would be difficult to ply it on a regular basis unless repaired immediately. Opposite party No. 1 contended that they were not liable for the customers of opposite party No. 2 except under conditions of warranty and denied the allegations of manufacturing defects in the body of the vehicle. The State Commission inspected the vehicle in the presence of the complainant and the Counsel for opposite party Nos. 1 and 2 and found the body of the vehicle corroded at many places. To the plea that the complainant was not a consumer having purchased the vehicle for commercial purpose, the Commission held that the defects in the vehicle had occurred during the warranty period and that therefore the complaint was maintainable. The Commission further observed that whereas the opposite parties had not produced any evidence to bring on record about misuse or lack of maintenance of vehicle, the complainant had brought on record through his affidavit-in-evidence as well as through the correspondence of his Bankers to opposite party No. 1 that the vehicle was not in fit condition and the same has been admitted by the engineers of opposite party No. 1 and was also conveyed to O.P. No. 1 by the bankers of the complainant. In the result, the State Commission concluded that it was a case of absolute deficiency in service of opposite party No. 1 and that the body of the vehicle was apparently and admittedly defective and worth replacement of the vehicle under the warranty. The State Commission therefore, directed opposite party No. 1 to replace the vehicle of the complainant within a period of 30 days from the receipt of the Order and the complainant to surrender the disputed vehicle to opposite party No. 1. In the Appeal before us, it has been reiterated that the vehicle had been purchased for commercial purpose and as such the complainant was not a consumer within the meaning assigned to the word under the Act before it was amended in that respect. It was contended that the warranty period is one year from the date of purchase of car or 16,000 k.ms. mileage whichever is earlier, but the complaint was filed more than two-and-half years after the purchase of the car, by which time the car had covered more than 1,00,000 Kms. A plea was also made that there was no investigation about alleged defects in the car by an independent agency. The appellant further stated that the complainant had not availed of the second and third service under the warranty and although the complainant had been asked to bring his car for whatever repairs were necessitated, he did not bring it for several months after that. Respondent No. 1 has also filed his version pointing out inter alia that, (i) the complainant is not a consumer, (ii) since the complainant did not bring the vehicle to him for servicing, the respondent agent/dealer had no occasion to find out the mileage covered by the said vehicle in such a short span, and (iii) the vehicle was put to extensive use without any care or maintenance. It was also denied that the said vehicle suffered from any manufacturing defects.

WE have heard the Counsel on both sides and carefully perused the records. First, on the question whether the complainant is a ''consumer'' in terms of the Act before the amendment, the answer is in the affirmative. Even before the amendment inserting the explanation on commercial use below Section 2(l)(d)(ii) of the Act, this Commission had held that a person purchasing a machine or car or other items of goods as a means of self-employment for earning his livelihood is a consumer entitled to seek relief under the Act. This decision of the Commission has been categorically stated in Secretary, Consumer Guidance and Research Society of India v. M/s. B.P.L. India Ltd, (R.P. No. 54 of 1991), I (1991) CPJ 140, decided on 28.1.92, as under: "These important aspects relating to the scope and applicability of the exclusion clause of the definition "consumer" contained in Section 2(1)(d) of the Act have not been specifically developed or highlighted in some of our earlier judgments such as those in Oswal Fine Arts v. H. M.T. Madras and Western India State Motors v. Sobhag MalMeena and Ors. (F.A. No. 12 of 1989). The decisions rendered in those cases had been rested only on the specific facts of each particular case. In M/s. Oswal Fine Arts v. HM.T. Madras the complainant has a well known printing press carrying on business on a large scale for the purpose of making profit and it was in the said context that this Commission held that the purchase of the offset printing machine by the complainant was for a commercial purpose. In Western India State Motors v. Sobhag Mal Meena and Ors., case the purchase of the car was by a person conducting a regular taxi service with a fleet of vehicles which business was being conducted on a fairly large scale and the conclusion recorded in that case has to be understood only against the said back drop of facts. We consider it necessary to make it clear that the above-mentioned decisions are not to be regarded as laying down any proposition that a person purchasing a machine a car or other items of goods as a means of self-employment for earning his livelihood will fall within the exclusion clause of the definition section and will not be a consumer entitled to seek relief under the Act."

THE 1993 amendment has only upheld these earlier decisions of the Commission. We are convinced that the respondent-complainant in the present case is covered by our earlier decisions and is, therefore, a ''consumer''. Secondly, according to the respondent-complainant, the corrosion of the body of the car occurred within six months of its purchase and the State Commission has also referred to the correspondence of the complainant''s Bankers to opposite party No. 1 that within a year the vehicle was not in a fit condition. It was, however, not the case of the respondent-complainant that he had not used the car at all notwithstanding its alleged defects. Before the State Commission, he had only stated that he could not ply the vehicle regularly. Further he has filed an affidavit before us mentioning that in April, 1995 he had met with an accident in the said vehicle after which the car was grounded and enclosing also a copy of his claim for compensation for the National Insurance Company for the said accident; this goes to show that the car which was purchased in 1990 was in running condition and in use at least till that time. Having regard to the aforesaid facts and circumstances of the case, we are of the opinion that a lump sum payment of Rs. 20,000/- as compensation to the complainant will serve the ends of justice. We, therefore, direct the appellant to pay Rs. 20,000/- to the complainant within a period of 30 day s from the date of the receipt of copy of this Order. The appeal is partly allowed and the order of the State Commission is modified as above. No costs.