period. However, the Complainant started experiencing defect in the car within one year from the date of purchase as the tyres of the car started bulging out. The Complainant got replaced the tyres on his own expense as the Opposite Party no. 3 didn"t pay any heed to the said issue. Thereafter, the issue arose in the power steering pump of the car, which was replaced by the Opposite Party no. 3. However, some malfunctioned parts of the car like CV Joint, Axle Boots, Radiator etc were got replaced by the Complainant itself.

3. In April 2012, the Complainant faced some problem in the transmission box of the said car which was duly reported to the authorised workshop of Opposite Party no.2, wherein the personnel engaged, assured the Complainant that the said problem in the transmission box would be fine. However, in February 2013, the said car broke down in the mid-road due to complete malfunction in the Transmission Box. Therefore, the said car was again sent to the workshop/service station of the Opposite Party No.2, where the total estimate of Rs.5,50,000/- was proposed by the Opposite Party No.3 to the Complainant in terms of installing the new transmission assembly. Vide the email dated 28.02.2013, the Opposite Party No.2 also agreed to borne 33% of the cost of said repairs from their end.

4. However, the Complainant informed the Opposite Party No. 2 that he is unable to bear such huge repair expenses i.e. 67% of Rs.5,50,000/- on his car and requested to exchange the said car with a new vehicle or a vehicle of lower segment but the Opposite Party no. 2 paid no heed towards to the request made by the Complainant. Despite the repeated emails/ telephonic communications alleging manufacturing defect in the said car, the

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Opposite Parties failed to resolve the said issue. Thus, left with no other option, alleging deficiency on the part of the Opposite Parties, the Complainant approached this Commission.

5. Notice was issued to the Opposite Parties in present case wherein, the Opposite Party no. 2 & 3 marked his appearance and was directed to file written statement. However, despite giving multiple opportunities, Opposite Party No.3 failed to appear before this commission. Consequently, Opposite Party No.3 was proceeded Ex-parte vide order dated 10.04.2017. Further, in the present case, notice was issued to the Opposite Party No.1 by way of publication on 11.03.2017 but the Opposite Party no. 1 also failed to appear before this commission on 10.04.2017 and 05.09.2017. Therefore, Opposite Party No.1 was also proceeded Ex-parte vide order dated

22.01.2018.

6. On the other hand, the Opposite Party No.2 has duly filed its written statement and contested the present case and raised preliminary objections as to the maintainability of the complaint case. The counsel for the Opposite Party No. 2 contended that the present complaint is liable to be dismissed as it is barred by limitation period prescribed under the Consumer Protection Act, 1986. The counsel for the Opposite Party no. 2 further contended that the Complainant is not a „consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986. The Opposite Party no. 2 further submitted that there exists no deficiency on the part of the Opposite Parties. Pressing the aforesaid contentions, the counsel appearing on behalf of the Opposite Party no. 2 prayed that present complaint should be dismissed.

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7. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite party no. 2. Thereafter, Complainant and Opposite Party No.2 have filed their evidence by way of Affidavit in order to prove their averments on record.

8. We have perused the material available on record and heard the counsel for both the parties.

9. The first question for adjudication before us is whether the present complaint is barred by limitation under the Consumer Protection Act, 1986 as the Opposite Party no. 2 contended that the Complainant purchased the subject vehicle in 2008 and the present complaint has been filed after 2 years.

10. To deal with this issue, we deem it appropriate to refer to Section 24A of the Consumer Protection Act, 1986:

(1) "The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay".

11. Analysis of Section 24A of the Consumer Protection Act, 1986 leads us to the conclusion that State Commission is empowered to admit a complaint if it is filed within a period of two years from the date on which cause of action arose.

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12. In the instant case, it is observed that primarily, the Complainant faced problem in the transmission box of the car in October 2012. However, when the car was completely broken down on 03.02.2013, after which the said car was sent for repair work in the authorized service center of the Opposite Party no. 2 on the same day. Therefore, the cause of action in the present case arose when the said car was sent for repairs to the workshop of Opposite Party no.2 and the present complaint was also filed in the year 2013 itself. Therefore, if we calculate the period of limitation from when the said car was sent to the authorized service center of Opposite Party no. 2, it is clear that the present complaint was filed within two years from the date of cause of action arise. Hence, the contention raised on behalf of Opposite party no. 2 is answered in negative.

WHETHER COMPLAINANT FALL IN THE CATEGORY OF

„CONSUMER" UNDER THE CONSUMER PROTECTION ACT, 1986?

13. The Opposite Party no. 2 further contended that the Complainant is not a "Consumer" as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. To resolve this issue, we deem it appropriate to refer to Section 2(1)(d) of Consumer Protection Act, 1986:

"Section 2(1)(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

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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

ii. hires or avails of any services 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 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 purpose. Explanation - For the purpose 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. We further deem it appropriate to refer to Crompton Greaves Limited and Ors. vs. Daimler Chrysler India Private Limited and Ors. reported in IV (2016) CPJ 469 (NC), wherein the National Commission held as under:-

"4. Going by the dictionary meaning, a car or for that matter any goods obtained and the services hired or availed by a company can be said to have been obtained or hired or availed for a commercial purpose, only if the said goods or services are intrinsically connected with, or related to the business or commerce in which the company is engaged. The acquisition of the goods or the hiring or availing of services, in order to bring the transaction within the purview of section 2 (1) (d) of the Consumer Protection Act, therefore, should be aimed at generating profits for the company or should otherwise be connected or interwoven with the business activities of the

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company. The purpose behind such acquisition should be to promote, advance or augment the business activities of the company, by the use of such goods or services. As observed by the Hon'ble Supreme Court in Laxmi Engineering Works (supra), it is not the value of the goods but the purpose for which the goods are brought or put to use, which is relevant to decide whether the goods were obtained for a commercial purpose or not. The same would be the position, where services are hired or availed by a company. If the business activities of a company cannot be conveniently undertaken without the goods purchased or the services hired or availed by a company, such purchase or hiring/availing as the case may be, would be for a commercial purpose, because the objective behind such purchase of goods or hiring or availing of the services would be to enable the company to earn profits by undertaking and advancing its business activities.

5. If a car or other goods are purchased or the services are hired or availed by a company for the personal use of its directors or employees, the purpose behind such acquisition is not to earn profits or to advance the business activities of the company. The purpose is to make certain facilities and amenities available to the directors and employees of the company as a part of the incentive offered to them by the company, as a reward or remuneration for the work which they are expected to perform for the company. It is not as if a company cannot run its business without providing such facilities and amenities to its directors and employees. It is not necessary for the business of the company, to provide such facilities and amenities to its directors and employees. Providing such facilities and amenities only motivates them to perform their work in an efficient and congenial environment, besides serving as an incentive aimed at eliciting better performance. The company does

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not earn profit merely by making a car or certain other goods or services available to its directors and employees. Therefore, it would be difficult to say that such goods are purchased or the services are hired or availed by the company for a commercial purpose."

15. Relying on the above settled law, we hold that the Complainant is „Consumer" under the Consumer Protection Act, 1986, as said car was purchased for the their personal use and the purpose behind such purchase was not to earn profits or to advance the business activities of the Complainant"s Company. Therefore, the contention raised on behalf of Opposite Party no. 2 is answered in the negative.

WHETHER THE OPPOSITE PARTIES ARE DEFICIENT IN

PROVIDING ITS SERVICES TO THE COMPLAINANT

16. Having discussed the preliminary objections raised on behalf of the Opposite Party no. 2, the next issue arises is whether the Opposite Parties are actually deficient in providing its services to the Complainant. The expression deficiency of services is defined in Section 2 (1) (g) of the Consumer Protection Act, 1986 as:

(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

17. The expression 'service' in Section 2(1)(o) of the Consumer Protection Act, 1986 is defined as:

"(o)"service" means service of any description which is made available to potential users and includes, but not

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limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

18. On perusal of record, we find that the said vehicle was purchased on 31.07.2008 alongwith full & unlimited warranty of two years. Further, it is clear that the problem in the transmission box firstly arose in October 2012, i.e. approximately after four years from the date of purchase. Thereafter, the said vehicle was sent for repairs on 03.02.2013, where the authorized service centre of the Opposite Party no. 2 appraised that the said vehicle as on 03.02.2013 had already run over more than 74,000 kilometres.

19. It is pertinent to mention here that although the warranty period of the said vehicle expired on 31.07.2010 but even then, the Opposite Party No.2 vide email dated 28.02.2013 informed the Complainant that they were ready to bear 33% of the cost of said repairs as a goodwill gesture. However, the Complainant refused to accept the said offer and left the vehicle abandoned at the service centre of Opposite Party no. 2.

20. Further, the Complainant alleged that the transmission box was malfunctioning completely due to the manufacturing defect in the car. Therefore, the question before us is whether the said car suffered from any manufacturing defect at the time of purchase.

21. To resolve this issue, we deem it appropriate to refer to "Classic Automobiles Vs. Lila Nand Mishra" as reported in I [2010] CPJ

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235 (NC), wherein, the Hon"ble National Commission while dealing with the similar case has hold as under:

"The onus to prove that there was manufacturing defect was on complainant/respondent No.1. We agree with the contentions raised by the learned counsel for the petitioner that complainant/respondent No. 1 failed to prove that there was any manufacturing defect by producing any cogent evidence. Complainant failed to produce expert evidence as provided under Section 13(1)(c) of the Consumer Protection Act, 1986."

22. Further, under catena of judgments namely "EID Parry Vs. Baby Benjamin-I [1992] CPJ 279, Tata Motors Vs. Sunil Bhasin - III [2008] CPJ 111, Chandreshwar Vs. Telco- I [2007] CPJ 2, Diamond Cement Vs. Rai Prexim India Pvt. Ltd. I [2003] CPJ 1 and Lovely Vs. Harmesh Lal - I [2007] CPJ 312." on similar issues, the Hon"ble National Commission has held that expert opinion is a condition precedent for establishing manufacturing defect.

23. From the aforesaid holdings of the Hon"ble National Commission, it is clear that firstly the onus of proof is upon the Complainant/purchaser to prove that the purchased vehicle was suffered from manufacturing defect. However, in the present case, no expert opinion or evidence has been filed by the Complainant to prove that the said car broke down due to any manufacturing defect. Therefore, devoid of any evidence, we are not convinced with the fact that the said car suffered from any manufacturing defect.

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24. We also deem it appropriate to refer to "Santosh Devi Vs. Hyundai South Regional & Ors", reported as (2012) 3 CPJ 529 (NC), wherein, the Hon"ble National Commission while dealing with the similar matter, uphold the impugned judgment of the concerned State Commission. The relevant portion is reproduced below for the ready reference:

"The very fact that the said car within a span of three years 2 months run more than 60000 Kms. speaks that there is no inherent manufacturing defect with the said car and the problem with the said car is rather created by the complainant herself. When that is so, she is bound to pay the repair charges. If she abandoned the said car and failed to take the delivery of the same by paying repair charges, she has to thank herself. When complainant is at fault, she cannot allege the deficiency in service against the Ops. Viewed from any angle, complaint appears to be devoid of merit."

25. Further, in "Ajita Chit Fund Pvt. Ltd. Vs Teleco I (2007) CPJ 204 and Swaraj Mazade Vs. P.K. Chak Kapoor" reported as "II (2005) CPJ 72" wherein the Hon"ble National Commission has held as under:

"In the case in hand, the Complainant had not filed report or affidavit of any expert to say that there was any manufacturing defect.

Extensive use of car also destroy the case of the complainant that car had any manufacturing defect"

26. Also, the facts of the present case reflect that the warranty period of two years had already elapsed on 31.07.2010. Further, the car in question had run over 74,000 kilometers during the period of four years from the date of purchase.

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27. Therefore, keeping in view the law settled by the Hon"ble National Commission and the facts of the present case, we are of the view that the Complainant in the present case failed to establish any deficiency of service on the part of Opposite Party.

28. Having regard to the aforesaid discussion and legal position explained supra, we are of the considered view that the present complaint is being devoid of any merit. Consequently, the present complaint stands dismissed with no order as to costs.

29. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

30. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

31. File be consigned to record room along with a copy of this Judgment.

(JUSTICE SANGITA DHINGRA SEHGAL)

PRESIDENT

(PINKI)

MEMBER (JUDICIAL)

Pronounced On:

22.08.2022

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