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Judgment
Heard Mr. Shinoj K. Narayana, Advocate, for the appellant, Mr. Deepesh, Advocate for respondent No.1 and Mr. Ramakrishnan, Advocate for respondent No.2.
Above appeal has been filed against the order of State Consumer Disputes Redressal Commission, Kerala, dated 15.12.2016 dismissing the complaint.
The office has reported delay of 3 days in filing the appeal. Although the appellant has not filed the application for condoning the delay, in the interest of justice, delay is condoned, subject to objection by the respondents.
The complainant, Mr. N. Chandran (appellant herein) filed Consumer Complaint No.64 of 2013 for directing the opposite parties to (i) take back vehicle No.KL 18 H 6669 and replace the same with a brand new SUV of the same make and model or alternatively refund an amount of Rs.55,14,821/- being the price of the vehicle with interest @ 12% from the date of purchase till the date of filing the complaint; (ii) pay compensation of Rs.30 lakhs for mental agony and suffering caused to the complainant; (iii) pay cost of Rs.25000/-; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.
Case of the complainant is that on 30.11.2011, he purchased Mercedes Benz Car bearing Registration No.KL 18 H 6669 for his personal use. In June, 2012, left side airmatic suspension of the car failed due to which the car could not be driven. The car was taken to the authorised service centre and the same was repaired and returned after 8 days. In the months of July & September, 2012 same problem occurred and the car was repaired and returned to the complainant with the assurance that the problem would not occur again but on 11.12.2012 the complainant faced the same problem. This time, the service centre gave the assurance in writing that the problem has been completely rectified and would not occur again but on 25th December, 2012 when the complainant was going on a holiday trip with his family during Christmas holidays, the same problem occurred due to which the complainant had to postpone his family trip. This time, the opposite party repaired the vehicle and returned the same to the complainant after one month on 25.01.2013. The complainant lost faith in the vehicle and filed Consumer Complaint No.1 of 2013 but later on the same was withdrawn with liberty to file a fresh complaint. Thereafter, the complainant filed Consumer Complaint No.64 of 2013.
The complaint was contested by the opposite parties. Opposite Parties 2 & 3 filed a joint written statement and opposite party No.1 filed separate written version stating that opposite party No.1 gave two years warranty for repair of the vehicle or replacement of defective part. Initially the complainant filed Consumer Complaint No.1 of 2013 seeking replacement of the car. He withdrew the said complaint and filed the instant complaint seeking either replacement of the car or refund the cost of the car with compensation of Rs.30 lakhs for mental agony. The complaint is speculative in nature. Whenever the complainant brought the car to the service centre, the opposite parties had attended the vehicle and repaired the same and replaced the defective parts free of charge under warranty. There is no provision for replacement of the vehicle. The car did not have any manufacturing defect and the problem occurred only due to operational reasons. The car had already run for 21854 kms in 2 years which shows that there is no problem with the same. The opposite parties also raised the objection regarding maintainability of the complaint on the ground that the complainant was a Managing Partner of M/s Prince Steels and the car is the property of the said firm. Therefore, the complainant is not a consumer.
State Commission, after hearing the parties, by the impugned order dated 15.12.2016 dismissed the complaint with cost of Rs.10000/- to be paid to the opposite parties. The State Commission also observed that as the complainant is engaged in commercial activity, it is doubtful whether the complaint can be entertained by the Consumer Forum. Aggrieved by the impugned order dated 15.12.2016, the present appeal has been filed.
We have considered the arguments of the parties and examined the record. The sum and substance of the argument of the counsel for the appellant is that the car sustained the same problem of airmatic suspension. It is admitted that when the complaint was filed, the car had already run for 21854 kms. The complainant claimed that after last repair, the car was not in use. The son of the complainant was examined by the State Commission and he admitted that the car has run for 30000 kms. After last repair, the car had run for more than 800 kms. and no problem was reported either to the opposite parties or to the State Commission. As far as replacement of car or refund cost of car is concerned, the complainant failed to produce any expert report or any other evidence to prove that there was any manufacturing defect in the car. The opposite parties were liable to repair the car or replace the defective parts free of cost during warranty period of two years, which they did. The appellant failed to point out any illegality or material irregularity in the findings of the State Commission that there was no deficiency in service on the part of the opposite parties. As far as question of maintainability is concerned, although it is admitted that the complainant was working as Managing Partner of M/s Prince Steels and the car was shown as an asset of the firm in the books of accounts, but the law is well settled that if the vehicle is not engaged in commercial activity and is personally used, then the complainant using the vehicle is a consumer. Therefore, the complaint before the State Commission was maintainable.
ORDER
In view of aforesaid discussions, the appeal is dismissed.