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Judgment
IN this revision petition there is challenge to order dated 13.12.2010, passed by Jharkhand State Consumer Disputes Redressal Commission, Ranchi (for short ''State Commission '').
BRIEF facts are that, petitioner/complainant obtained two tippers from Ashok Leyland Company ''s showroom with finance from Indusind Bank and gulf Ashok Leyland Motors Ltd. on 30.10.2004. These tippers were used to serve loading and unloading works at different sites and petitioner earned his livelihood with the income generated. Petitioner agreed to pay back the financed amount with interest to the respondent/opposite party no.2 as EMIs and issued postdated cheques in this context. The tippers were further under warranty of eighteen months or 1,50,000 km, whichever is less, when it started having break downs, trouble in engine etc. Respondent no.1 was approached but without satisfactory response.
ULTIMATELY petitioner called for a meeting with the respondents and an understanding was arrived at on 24.1.2006 to get the driver ''s cabins replaced. However, respondents did not fulfill this agreement and the tippers had to be laid off one by one. In result, the EMIs could not be deposited in time. Therefore, petitioner had to approach the District Forum and filed complaint.
IT is further alleged that after the filing of the complainant, respondent no.2 forcibly repossessed those tippers alleging default. Respondents appeared before the lower forum and resisted the claim on the ground that the tippers though under warranty were not maintained properly. Service in time at authorized service centre and problems whenever brought to it, were taken up properly.
RESPONDENTS have relied upon the memorandum dated 24.1.2006 to show that petitioner had agreed to share 1/3rd cost of the required repairs but failed to act accordingly. Therefore, there was no deficiency in the services as alleged.
IT is further stated that the tippers were voluntarily surrendered by the petitioner, as he was unable to pay back through EMIs. It has also been asserted that postdated cheques were stopped payment by him and knowingly defaulted to pay back the dues. Therefore, the petitioner has no valid cause of action. District Forum dismissed the complaint on the ground that petitioner is not a consumer as defined in Section 2 (1) (d) of Consumer Protection Act, 1986 (for short as ''Act '').
AGGRIEVED by the order of District Forum, petitioner filed an appeal which was also dismissed by the State Commission, vide impugned order.
IT is contended by learned counsel for the petitioner that since petitioner is self-employed and is running the tippers for earning his livelihood, thus he is very much covered under the explanation of the definition of "Consumer " given in clause 2(d) of the Act. Other contention made by learned counsel is that, the respondent without adopting the due process of law repossessed the vehicle lying in their garage for repair.
IT is further contended that petitioner had a meeting with the respondents wherein respondents have agreed to remove the defects of the vehicle as early as possible, but they did not remove the defects. Moreover, as per terms and conditions of the warranty, respondents were bound to cure the defects occurred during the period of warranty.
IN support, learned counsel has relied upon a decision of Apex Court ; Madan Kumar Singh (Deceased) through LR Vs. Distt. Magistrate, Sultanpur & Ors., 2009 (4) CPR 113 (SC). As per averments made in the complaint, petitioner had purchased two tippers in his own name for his livelihood. Under these circumstances, the petitioner is very much covered within the definition of "Consumer " as defined in the Act.
AS far as forcibly possession of the vehicles is concerned, there is no evidence in this regard to show that vehicles in question was forcibly repossessed by the respondent.
STATE Commission in its impugned order has observed ; "Regarding the warranty papers be asserted that they were with the tippers forcibly repossessed by the financier when they were lying in the workshops at Demotand, Ranchi but he cannot say what happened to the police case filed by his staff in this regard. The financier has asserted that all the tippers were surrendered on 24.7.2006 voluntarily. The complainants were lodged before 24.7.2006 did not allege any repossession by force though it shifted the responsibility of non-payment of installments on opposite party no.1 and 3,4, 5. "
Statecommission further held ; "In answer to the important question if the vehicles had manufacturing defects and the opposite party/respondent liable to remove them under warranty, the petitioner has relied upon the joint statement dated 24.1.2006 with the respondent officially signed by him. We have gone through the contents to find that the defects were cracking of cabin glass and dash boards. However, the tippers were run at Barbil Iron Ore before January, 2006 for more than fourteen months. It also mentions that the tippers were to be repaired as a goodwill gesture because of Shri Singh having status of customer with large fleet of vehicles supplied by the respondent no.1. It has also been admitted that out of the repairs cost, one third was to be borne by Shri Singh and the owners of the tippers. The inventory list of repossession dated 24.7.2006 and 10.8.2006 shows the tipper were lying at Barbil, Orissa, when surrendered. "
PETITIONER himself has placed on record copy of the minutes of the meeting (page 62 of the paper book) which read as under ; "Minutes of the meeting between Mr.Shiv Kumar singh, Ashok Leyland Ltd. and Gulf Ashley Motors Ltd. at Hazaribagh held on 19.5.2006 at Demotand. It has been mutually agreed by all three parties to Share expenses @ 33% each towards Cabin Modification/change of fee. The expense is coming to Rs.51,000/- approx.. and Mr.Shiv Kr.Singh has agreed to pay @ Rs.17,000/- each vehicle for 13 vehicles (out of 14 vehicle one vehicle modification has been done by GAML which is operating successfully). It any extra work other than Catrin Repair is required, that will be attended at customers cost. We have further agreed to complete two vehicles per months and will pressure on fabricator to do @ 3 vehicles per moths. After the above modification no further claim will be entertained on cabin crave/repair. This is full and final settlement of all disputes. Mr. Sheo Kumar Singh Mr.J.K.Majumdar - GAML Mr. M.K.Nandi Mr. R.P.Choudhary Witness : Mr.S.K.Mishra Mr.Mukesh R.Singh RM, IBL, Dhanba BN, IBL, Hazaribagh "
ACCORDING to the above minutes, it had been mutually agreed by the parties to share expenses @ 33% each. However, there is nothing on record to show that petitioner ever paid his share in terms of this meeting. Since, petitioner did not pay his share towards repair, no blame can be attributed towards the respondents. Thus, these has been no deficiency on the part of the respondents. Since, both the fora below have dismissed the complaint of the petitioner, we do not find any illegality or infirmity in the impugned order passed by the State Commission.
PRESENT revision petition being without any basis and as the same is meritless, it is hereby dismissed with costs of Rs.10,000/-.
PETITIONER is directed to deposit the costs of Rs.10,000/- by way of cross cheque, in the name of "Consumer Legal Aid Account " of this Commission, within four weeks from today. In case, petitioner fails to deposit the said costs within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.
LIST on 9.3.2012 for compliance.