Mahindera and Mahindera

adminadmin Administrator
edited January 2014 in Automobile
Consumer complaint No.234/07
Date of presentation: 8.8.2007
Date of decision: 8.4.2009

Manjeet Singh Rana son of late Kehar Singh Rana, resident of village and PO Malan, Tehsil Palampur, District Kangra (HP)

Complainant

Versus

1. Mahindera and Mahindera Ltd. Gateway Building, Apollo Bounder, Mumbai 400039, through its Manager
2. Swami Automobiles private Ltd. authorised Dealer, Mahindera and Mahindera Ltd. 32, Industrial Area Phase-I, Chandigarh 160002, through its Manager
Opposite parties

Complaint under section 12 of the Consumer Protection Act, 1986

PRESIDENT: A.S.JASWAL
MEMBERS PABNA SHARMA & PARDEEP DOGRA


For the complainant: Anubhav Walia, Advocate
For the opposite parties: Sh. Amit Sood, Advocate

ORDER
A.JASWAL, PRESIDENT (ORAL)

Briefly stated, the case of the complainant is that for the purpose of self employment, he had deposited Rs.5000/- in advance with opposite party for the purchase of Mahindera Max 5 Door (Ten Seater) (hereinafter referred to as vehicle). It is asserted that when he went to Chandigarh on dated 16.9.2005 to take the delivery of the vehicle, there were only three vehicles and that the same were having some defects/dents. When he showed his unwillingness to take the delivery of the said vehicle, the opposite party No.2 told him that the amount paid in advance would not be refunded to him. By this act of the opposite party No.2, he was forced to take the delivery of the vehicle which was having a dent. In order to remove the dent, the complainant had spent a sum of Rs.3500/-. It is further asserted that the opposite party No.2 had wrongly mentioned the date of sale in the sale certificate as 20.9.2005, whereas, as per the gate pass of the vehicle, the date of sale was 16.9.2005. The aforesaid acts of the opposite parties amount to deficiency in service.
2. The opposite parties by filing separate relies have asserted that since the vehicle had been purchased at Chandigarh, this Forum has no territorial jurisdiction. It is asserted by opposite party No.2 that the complainant had voluntarily made the payment and had taken the delivery of the vehicle without any complaint. The present complaint has been filed just to harass the opposite parties. Thus, there is no deficiency in service on the part of the opposite parties.
3. Both the parties adduced evidence by way of affidavits and annexures. After hearing the learned counsel for the parties, the following points for determination, our findings on the foresaid points are as under:-
1. Whether Opposite parties have committed deficiency in service by selling a vehicle which having dents?
2. Final Order
4. For the reasons to be recorded hereinafter while discussing points for determination, our findings on the aforesaid points are as under:-
Point no.1: Partly in affirmative
Final order The complaint is partly allowed as per operative part of the order
REASONS FOR FINDINGS
POINTS NO.1
5. The learned counsel for the complainant has argued that the opposite parties had sold a vehicle to the complainant, which was having dents and that they wrongly mentioned the date of delivery in the sale certificate as 20.9.2005 whereas the vehicle had been purchased by the complainant on dated 19.9.2005. He further argued that to remove the dent and to get removed the error regarding date of sale, he had spent a sum of Rs.3500/- and 2000/- respectively. In this manner, the opposite parties have committed deficiency in service.
6. On the other hand, learned counsel for the opposite parties has argued that the complainant had taken the delivery of the vehicle voluntarily and that at the relevant time, he had not raised any objection regarding dents in the vehicle. He further argued that since the vehicle had been purchased at Chandigarh, this Forum has no territorial jurisdiction to entertain and try the present complaint.
7. To appreciate the arguments of the learned counsel for the parties, the entire record available on the file was gone into in detail.
8. From the contents of the complaint, which is supported by the affidavit of the complainant, Ex.CW1 and annexures C-9, it stands proved that the opposite parties had sold a vehicle to the complainant which has having dents. We are of the view that the opposite parties were under legal obligation to provide a vehicle to the complainant which was having no dent. In order to remove the dent in the vehicle, the complainant has spent a sum of Rs.3500/-. It also stands proved that the opposite parties in the sale certificate had mentioned a wrong date of sale of the vehicle and to remove the said error, he was compelled to visit Chandigarh. The action of the opposite party in selling a vehicle to the complainant having dents is nothing but great deficiency in service.
9. So far as the contention of the complainant that the opposite parties have sold a used vehicle is concerned, the same is rejected being devoid of any force. The complainant has not adduced any cogent and convincing evidence to prove that a used vehicle has been sold to him. In the absence of any cogent evident, it cannot be said that the opposite parties had sold a used vehicle to the complainant.
10. The only plea of the opposite parties is that since the vehicle has been purchased a Chandigarh, this Forum has no territorial jurisdiction to entertain and try the present complaint. This plea of the opposite parties is rejected being without any substance. We are of the view that the place where the vehicle is plied or registered, has got the territorial jurisdiction to entertain and try the present complaint. Furthermore, the demand draft has been prepared by the complainant at Kangra, within the territorial jurisdiction of this Forum. Thus, a part of cause of action had arisen to the complainant within the territorial jurisdiction of this Forum.
11. Now, how the deficiency can be cured? We are of the view that for removing the dents of the vehicle and to remove the error qua date of sale of the vehicle, in the sale certification, the complainant might have spent a sum of Rs.3500/- and 2000/-. Keeping in view the facts and circumstances of the case, we are of the view that the ends of justice will be met in case, the opposite parties are directed to pay Rs.5500/- to the complainant. Due to deficiency in service, the complainant has also suffered mental pain, agony and inconvenience and the ends of justice will be met in case the opposite parties are directed to pay compensation, which is quantified at Rs.3000/-. Hence, point no.1 is answered partly in affirmative.
12. No other point argued or urged.
Relief
13. In view of our findings on point No.1 above, the complaint is partly allowed and we order the opposite parties, jointly and severally to pay Rs.5500/- to the complainant within 30 days after the receipt of copy of this order, failing which it will carry interest @ 9% per annum from the date of complaint, till its realization. The opposite parties are also directed to pay compensation to the tune of Rs.3000/- coupled with litigation costs of Rs.1500/-.

Comments

  • adminadmin Administrator
    edited September 2009
    Baba Gurmail Singh Ji son of Sh. Ram Singh, village Manakwal, Tehsil & Distt. Ludhiana.
    (Complainant)
    Vs.

    1. M/s Modern Motors, near Dhandari Railway Station, G.T. Road, Ludhiana -141 010, through its General Manager Mr. Rahul.

    2. M/s Mahindra & Mahindra Ltd. Automotive Sector, Kandivli Plant, Akurli Road, Kandivli (E) Mumbai -400 010, through its Managing Director.

    3. M/s Mahindra & Mahindra Financial Services Ltd. Ludhiana, through its Branch Manager.

    4. Mr. Ashwani, Sales Officer, M/s Modern Motors, near Dhandari Railway Station, G.T. Road, Ludhiana-141 010.
    (Opposite parties)

    Complaint under section 12 of the Consumer Protection Act, 1986.
    …..
    Quorum:
    Sh. T.N. Vaidya, President.
    Sh. Rajesh Kumar, Member.

    Present:
    Sh. Iqbal Singh Advocate for the complainant.
    Sh. Harjot Singh Advocate for OP No.1 & 4.
    OP No.2 is ex-parte.
    Sh. Arun Khurmi Advocate for OP no.3.

    O R D E R
    T.N. VAIDYA, PRESIDENT:
    1. Complainant on 10.2.2006 for Rs.4,55,690/- purchased Balero jeep bearing engine no. MAIRU2GAA51M48630, chassis no.GA51M7321 from opposite party no.1, manufactured by opposite partyno.2 and got the same financed from opposite party no.3.
    2. Grievance of the complainant, in this complaint under section 12 of the Consumer Protection Act, 1986 is that opposite party no.1 through its General Manager and Sales Officer OP No.4, misguided and misrepresented the complainant that vehicle was 2006 model as was being purchased by him in 2006. Hence, he believed the representation to be true and purchased the vehicle as of 2006 model. But in fact, it was 2005 model and falsely represented it as 2006 model. Thereby selling vehicle of 2005 model, they cheated the complainant by resorting to unfair trade practice. Hence, has claimed compensation of Rs.2,00,000/- with direction to replace the vehicle of 2005 model with that of 2006 model.
    3. Opposite parties no.1 and 4 in their joint reply claimed that the vehicle was commercial vehicle and was purchased for commercial purpose by the complainant, so, he is not entitled to the consumer complaint. Complainant is guilty of concealing the material facts and that case can not be decided in summary manner, so, this Fora has no jurisdiction. Averred that the complainant had purchased the said vehicle from opposite party no.1 after availing discount of Rs. 12,210/- and he has concealed such aspect from the Fora. Vehicle was 2005 model and sold as such and this aspect was also noted in the invoice of the vehicle. No cheating was done. Complainant was knowing about this fact 2005 model, so, his allegations are false.
    4. Opposite party no.3 in separate reply claimed that they have been unnecessarily impleaded. There is no deficiency in service on their part. They simply financed purchase of the vehicle. No negligence was committed by them.
    5. Opposite party no.2 did not contest the complaint and is being proceeded against ex-parte.
    6. To prove their respective contentions, both the parties adduced their evidence by way of affidavits and documents.
    7. We have heard the arguments addressed by the ld. counsel for the parties and have gone through the file, scanned the documents and other material on record.
    8. The sole question referred for determination is whether the opposite party no.1 resorted to unfair trade practice by representing 2005 model of the vehicle as 2006 model.
    9. Answer to the disputed point has to be found. Sale certificate Ex.C.1 dated 10.2.2006 shows manufacturing of the vehicle in December,2005. It was under that sale certificate dated 10.2.2006, that the complainant had purchased it from the opposite party no.1. So, it means in said certificate manufacturing year of the vehicle was mentioned as 2005. Opposite party no.1 has also relied on credit note dated 10.2.2006 RW1/A to the fact that specifically discount of Rs.12,210/- on purchase of vehicle by the complainant was given. No material is placed on the record that actually such credit of Rs.12,210/- was given by opposite party no.1 to the complainant when they sold the vehicle to him. We are taking such view because invoice, under which the vehicle was sold, has not been placed on the record by the opposite party. That invoice would have helped us to know what was sale price of the vehicle and after giving how much discount, it was sold to the complainant.
    10. Grievance of the complainant appears to be genuine that 2005 model vehicle was sold to him representing the same to be of 2006 model. As when the complainant get the purchased vehicle insured vide cover note Ex.C.2, year of manufacturing of the vehicle was mentioned as 2006. Under that cover note, vehicle was insured from 25.1.2006 till 24.1.2007.
    11. Though in sale certificate, manufacturing year of the vehicle is mentioned as December 2005 but this sale certificate is dated 10.2.2006 whereas insurance of the vehicle was obtained by the complainant on 25.1.2006 showing year of manufacturing as 2006. Sale certificate is subsequent to date of insurance. Also opposite party no.1 in their temporary registration certificate of the vehicle sold to the complainant, had mentioned year of manufacturing as 2006. This temporary registration certificate was issued on the letter head pad of opposite party no.1 on 25.1.2006. This document Ex.C.3 coupled with insurance cover note Ex.C.2 clearly spells that the vehicle of 2005 model was sold to the complainant representing the same as of 2006 model. When the complainant came to know of the cheating practised, issued legal notice Ex.C.6 dated 18.4.2006 to opposite parties no.1 & 2, under postal receipts Ex.C.6 and the same remained un answered.
    12. In these circumstances, it is apparent that opposite party no.1 resorted to unfair trade practice by selling vehicle of 2005 model to the complainant by representing it of 2006 model. This caused agony, tension and harassment to the complainant who was cheated by the opposite party.
    13. Judicial notice can be had that resale price of the model is effected model wise. Old model fetch on resale, less price. Hence, complaint deserve to be allowed.
    14. Consequent to the discussions we allow this complaint and for restoring to unfair trade practice, order opposite party no.1 to pay compensation of Rs.20,000/-(Rs. Twenty Thousands only) to the complainant along with litigation cost of Rs.2000/(Rs. Two Thousands only). Order be complied within 45 days of the receipt of copy of the order
  • SidhantSidhant Moderator
    edited September 2009
    Sadakathulla.P.P,

    S/o/Muhammeduppa,

    Palattuparambil House,

    Thrikkadeeri(P.O),

    Cherpulassery,

    Palakkad. - Complainant

    Vs

    1. M/s.T.V.Sundaram Iyengar & Sons Ltd.,

    Near Yakkara Bridge,

    N.H.47, Kadunthuruthi,

    Kinassery(P.O),

    Palakkad 678707.


    2. M/s.Mahindra & Mahindra Ltd.,

    34/1128, Balakrishna Menon Road,

    Edapally,

    Cochin 682024. - Opposite parties


    O R D E R

    Complainant purchased a Mahindra & Mahindra Tipper lorry through the 1st opposite party and manufactured by the 2nd opposite party by availing loan on 30/09/2005. Thereafter the complainant availed all the periodical free services. When the vehicle was taken for the fourth free service within the prescribed kilo metre, it was found that there was some problem with the gear box. 1st opposite party conducted the necessary repairs and service. When the complainant approached 1st opposite party for taking back the vehicle, 1st opposite party inclined to release the same without paying the value of parts and labour charges. According to the complainant, he is entitled to get the repairing done free of cost as per the warranty conditions and therefore he is not liable to pay the charges. Hence the complaint.

    2. Opposite parties filed version with the following contentions. According to 1st opposite party after undergoing the 3rd free service on 19/05/2006, complainant has taken the vehicle to the workshop only on 13/08/2007 i.e after a gap of 15 months. This was an express violation of the conditions of warranty applicable for the vehicle. The service personnel of the 1st opposite party on inspecting the vehicle noticed that several repairs would have to be carried out as there was a long gap between the services. Further on dismantling the gear box, it was found that gear box oil had mixed with water and several parts were in a damaged condition. Entry of water in the gear box is due to the negligence of the complainant. Having convinced, complainant agreed to carry out the repairs on payment basis. Later complainant refused to make payments and take delivery of the vehicle. 1st opposite party issued several letters to the complainant requesting him to take delivery of the vehicle after clearing the payments. But the complainant refused. Hence there is no deficiency of service on the part of opposite party.


    3. According to 2nd opposite party, warranty will be available only for defects arising out of defective manufacture and not one for arising from improper maintenance of the vehicle. According to 2nd opposite party, the very fact that the vehicle was not given for service for a period extending one year and three months would unequivocally establish the fact that the vehicle was not properly maintained by the complainant. On going through the clause regarding manufactures warranty in the operators manual, it can be seen that the warranty extends only for a period of 12 months from the date of sale of the vehicle to the original purchaser. 'Scope of warranty' mentioned in page 13 of the operators manual only mean that the complainant is supposed to adhere to the said service pattern to get the benefit of warranty. According to opposite parties, complaint is liable to be dismissed with costs.


    4. The evidence adduced by both parties consists of the affidavits of all parties. Exts.A1 to A8 series marked on the side of the complainant. No document were marked on the side of the opposite parties.

    5. Now the issues for consideration are;

    1.

    Whether the act of opposite parties amount to deficiency in service? and
    2.

    If so, what is the relief and order?

    6. Points 1 & 2:

    We have carefully gone though the evidence on record and heard the parties in detail.

    7. The sale of the vehicle by 1st opposite party is admitted by both parties. The definite case of the complainant is that he was not provided with free service and replacement as per the warranty conditions. According to opposite parties as per the clause, manufacturers warranty extends only to defects arising out of defective manufacture and not for defects arising from improper maintenance of the vehicle. Manufacturer's warranty as stipulated in the operators manual provides warranty to the vehicle for a period of 12 months (without stipulating any kilometers limitation) from the date of sale of the vehicle to the original purchase. Vehicle was purchased on 30/09/2005 and warranty expires on 29/09/2006. Vehicle was brought for fourth free service only on 13/08/2007 i.e after the expiry of the warranty period. Hence the complainant is bound to pay the repairs and labour charges. We are not in a position to attribute any deficiency in service on the part of opposite parties.

    8. Complainant has filed I.A at the earlier stage of the case for the immediate release of the vehicle. I.A was allowed on production of cheque for Rs.23,814/- by the complainant. It was ordered that the amount shall be released by the parties subject to the result of the complaint.

    9. As no deficiency of service is established on the part of the opposite parties, we dismiss the complaint. Parties shall bear their respective cost. Opposite parties shall be at liberty to withdraw the cheque amount.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    Rajinder Singh S/O Shri Ram Singh,

    Residentof Village Dehlla, P.O. Gharsi,

    Tehsil Kasauli, District Solan, H.P.
    … Complainant.
    Versus
    1. M/S Mahindra & Mahindra Limited,

    Automobile Sector, Akurli Road, Kandivli (E) Post Box No.8552, Mumbai,

    Through its Managing Director and

    General Manager.

    2. Shimla Automobiles Private Limited, Ner Chowk Mandi, H.P. through its Managing Director/General Manager.

    3. Shimla Automobiles Private Limited, Authorized Dealer of M/S Mahindra & Mahindra Ltd. Nalagarh Road, Baddi, Tehsil Nalagarh, District Solan,H.P. through its General Manager Sghri Surender Thakur,

    …Opposite Parties
    O R D E R:

    Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant against the OPs, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that on 18.09.2005, he purchased a Mahindra Single Cab from the OPs No.2 & 3, for a total consideration of Rs.3,82,425/-, which was insured with Oriental Insurance Company Limited by paying premium of Rs.10,718/-. It is averred that the aforesaid vehicle was also registered with Secretary, Regional Transport Authority, Solan vide registration No.HP-64-0625. The complainant further proceed to aver that the OPs No.2 & 3 had sold a defective vehicle to him, as, there is a manufacturing defect in the chassis, as also, cracks have appeared in the chassis of the said vehicle.

    The complainant also brought the manufacturing defective to the notice of the OPs No.2 & 3 and they were requested to replace the defective vehicle with the new one. The OPs did not accede to the request of the complainant, as a result of which he had to suffer mental as well as physical harassment and also the financial loss. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OPs filed detailed reply to the complaint. The OP No.1 in its preliminary objections contended that the relationship between the OP No.1 & OPs No.2 & 3 is that of principal to principal, the complaint is neither competent nor maintainable, violation of terms and conditions of the warranty policy, as the vehicle was repaired from unauthorized service centre. On merits, the OP No.1 contended that a brand new vehicle without any manufacturing defect was sold to the complainant by the OPs No.2 & 3, which was put to misuse and abuse by him, as major alternations and additions were made to the vehicle. It is denied that the fact of having cracks developed in the vehicle was ever brought to the notice of the OP No.1. It is contended that the complaint filed by the complainant is false and vexatious.

    The OPs No.2 & 3 admitted that the complainant had purchased Pickup van for a total consideration of Rs.3,82,425/-, which was received by him after executing delivery cum satisfaction note. It is denied that the vehicle was having any manufacturing defect either in its engine or chassis. It is denied that the defect was brought to their notice or that they were requested to replace the vehicle. It is contended that the vehicle was defect free when it was purchased by him, and there is no manufacturing defect in it, and as such the question of replacing or refunding the sale consideration does not arise. It is denied that there was any deficiency in service on their part or that they have indulged in an unfair trade practice by supplying defective vehicle to the complainant.

    3. Thereafter the parties led evidence by way of affidavits and documents in support of their rival contentions.

    4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case meticulously.

    5. The parties do not wrangle over the fact, that, the defect which erupted in the vehicle as purchased by the complainant from the OP No.1 had erupted after the expiry of the period of warranty. Hence, with the purported manufacturing defect as had emanated in the vehicle as purchased by the complainant from the OPs on the ground of its having, so, erupted beyond, the, period of warranty, the complainant cannot seek to assert against the OPs, that, the OPs are, hence, obliged, to, revere the terms of the warranty.

    6. Moreover, at, an, earlier stage, also, there is no evidence on record that as and when the complainant had visited the authorized workshops of the OPs for his having, the, vehicle serviced by the aforesaid, he, had brought to their notice, the, manifestations, marking the fact of, the likelihood of the eruption of the manufacturing defect in the vehicle which ultimately erupted after the lapse of a year, hence, ,beyond the period of warranty, which, otherwise also debars him to assert, a, claim against the OPs on the strength of the warranty which, hence, is, stripped of its effect, nor also, when he has omitted to place on record, job cards, as issued by the authorized service centre of OPs reflecting theirs having been apprised of such a defect intimated by the complainant. Hence, the effect, of, the said omissions on his part, is, that, the manufacturing defect, if any, which erupted in the vehicle, had erupted, not, at a time earlier than after the lapse of the period of warranty.

    7. Moreover, with the complainant detailing in paragraph 4 of the complaint that, he, incurred a huge amount in building the body of the said vehicle, hence, when the manufacturing defect as had erupted in the vehicle, and that, too, beyond the period of warranty, inasmuch, as the chassis of the vehicle having got cracked, has, been attributed by the OP to be a contributory factor in the chassis developing such a defect inasmuch, as, the said expenses, as, incurred by the complainant, on, body of the vehicle, with a obvious motive of increasing its load capacity, beyond, the permissible load bearing capacity, of the vehicle, hence, in his proceeding to do so may have contributed to the chassis of the vehicle cracking. Therefore, the said contention in the reply of the OP for lack of rebuttal, to, it by the complainant appears to be a justifiable reason for the defect, as such, having, erupted in the chassis of the vehicle, especially, when the adequate rebuttal evidence by way of adduction into the evidence of a report of mechanical expert, has, not, been adduced, to, portray that the chassis of the vehicle had not cracked owing to overloading.

    As such, the further ensuing inference from the above deduction, is, that the cracks in the chassis erupted or developed entirely on account of mishandling of the vehicle by the complainants and not owing to any manufacturing defect in it. Hence, the complaint being without merit, deserve dismissal.
  • adv.sumitadv.sumit Senior Member
    edited September 2009
    Shri Madan Sharma S/O Shri M.R. Sharma,

    R/ V.P.O. Deoth, Tehsil Chopal, District Shimla, H.P.



    … Complainant.

    Versus



    1. Shri Chand Ghotia Brothers, 322, Industrial Area,

    Phase-II, Panchkula-134113, Chandigarh.



    2. Mahindra & Mahindra Ltd.,

    S.C.O. 17, Sector-26 D, Madhya Marg,

    Chandigarh-160019 through its Area Manager.



    3. Mahindra & Mahindra Financial Services Ltd.,

    Asha Bhawan Opposite Hotel D-Park Tara Devi,

    Kachhi Ghati, Shimla, H.P. through its Manager.



    …Opposite Parties




    O R D E R:

    Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12, of the Consumer Protection Act, 1986. The complainant avers that he purchased Bolero Caper utility from the OP No.1 in the month of June, 2005, for a total consideration of Rs. 4.17 lacs, which was financed by him with the OP No.3, while the OP No.2 is the dealer of the OP No.1. He further proceeded to aver that when the aforesaid vehicle was brought by him to his native place, it was found that the seat belt of the same and steering box were not proper, as also, the oil-seal and steering box, diesel tank started leaking, during warranty period, hence, the said defects were brought to the notice of the OPs, but the OPs did nothing and as such, he, was forced to park the said vehicle averring that there is manufacturing defects in the vehicle. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OPs, in its written version to the complaint, has raised various preliminary objections, vis-à-vis maintainability of the complaint, lack of territorial jurisdiction to entertain the present complaint, and breach of terms and conditions of the warranty. On merits, it is admitted that the vehicle aforesaid was sold to the complainant, but it is denied that this vehicle was having manufacturing defects. The defects, if any, had erupted due to mishandling or due to repairs carried out at unauthorized workshops, for which act on the part of the complainant, they cannot be held liable to rectify or replace the vehicle. Hence, it is denied that there was any deficiency in service on their part or that they have received the excess amount from the complainant.

    3. Thereafter the parties led evidence by way of affidavits and documents in support of their respective rival contentions.

    4. We have heard the learned counsel for the parties at length and, have, also, thoroughly scanned the entire record of the case meticulously.

    5. During the currency of the warranty, the complainant, alleges, that, his vehicle developed manufacturing defect, hence, he had proceeded to get the vehicle repaired at the authorized workshop of the OPs, which repairs did not bear the desired results and the manufacturing defects persisted.

    6. The OPs repudiate the claim of the complainant on ground of breach of warranty, inasmuch, as, the complainant never approached the OPs for rectification of the defects nor had got the defects rectified in authorized workshops of the OP. The defects as were rectified at the purported authorized workshops of the OPs, has, been denied to be the authorized workshops, of, the OP No.1.


    The said fact has not been repudiated by the complainant, hence, with the complainant proceeding not to get the defects as and then erupted, rectified, either, at, Chandigarh or any of its authorized workshops, hence, his proceeding to get the defects rectified, at, unauthorized workshops, has, in his proceeding to do so, breached the terms and conditions of the warranty. Obviously, when, he, has proceeded to breach the terms and conditions of the warranty, the, purported manufacturing defects, as, had erupted in the vehicle, may well be adjudged to be the result of mishandling of the vehicle, at, the unauthorized workshops of the OPs. Resultantly, for such defects, as, having erupted in the vehicle, the OPs, cannot hence, be held liable and as such, the complaint being without any merit, hence, deserves dismissal.

    7. In the light of the above discussion, we find no force in this complaint and it being without any merit, is dismissed, leaving the parties to bear their own cost. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Abdul Quaium,

    Son of Md. Sahimuddin,

    Village – Prannagar, P.O. – Rasakhowa,

    P.S. – Karandighi, District – Uttar Dinajpur. Complainant.



    versus



    The Mahindra & Mahindra Financial Services Limited,

    Represented by the Executive Officer,

    Mahindra & Mahindra Finance,

    2nd Mile, Sevoke Road, P.O. and P.S.: Siliguri,

    District – Darjeeling, West Bengal. Opposite Party.



    Counsels:



    For the Complainant, Sri Subrata Dey,



    For the Opposite Party, Sri Subhasis Paul.



    Judgment

    Date: 03.09.2009.



    Complainant, has filed this complaint praying for an award of Rs.2,56,000.00 (rupees two lacs fifty six thousand) only with interest and a further sum of Rs.2,00,000.00 (rupees two lacs) only as compensation against the Opposite Party, The Mahindra and Mahindra Financial Services Limited for alleged and forcible repossession of the vehicle, which the Complainant purchased with the financial help of the Opposite Party on the strength of an agreement dated 18.11.2001executed in between them.


    It was agreed that Opposite Party will finance a sum of Rs.2,80,000.00 (rupees two lacs eighty thousand) only, which was payable in 34 (thirty four) installment of Rs.10,200.00 (rupees ten thousand two hundred) only each per month. He claimed that he has already paid 25 installments, which is in terms of money a sum of Rs.2,56,000.00 (rupees two lacs fifty six thousand) only and Opposite Party is entitled to claim only Rs.86,724.00 (rupees eighty six thousand seven hundred twenty four) only as dues from the Complainant. It is further alleged that the rate of interest, which was originally 8.25 percent increased to 8.5 percent and finally to 9.75 percent, without the knowledge of the Complainant.


    It is claimed that the Complainant approached the Opposite Party with the intention the pay the balance installment upon right calculation, but the Opposite Party did not response. It is further alleged that the Opposite Party on 25.12.2004 took possession of the vehicle forcibly and kept it at a premises named and styled as Joyguru Automobiles, Durgapur Rajbari under P.S. Raiganj. Complainant requested the Opposite Party to release the vehicle, but his request fell on a deaf ear. Then the Complainant filed one writ petition before Honorable High Court, Calcutta (vide W.P. No.5528 (W) of 2005). On 05.09.2008 Honorable dismissed the writ petition with liberty to apply before the appropriate Forum for appropriate order, hence this complaint.



    The Opposite Party contested the complaint upon filing one written version. In its written version Opposite Party has referred to the writ petition of the Complainant. What additional he asserted is that the Honorable Court directed the Complainant to deposit Rs.1,00,000.00 (rupees one lac) only in favour of the Opposite Party. But the Complainant, it is alleged, did not comply with the order. In the additional written version of the Opposite Party it is agitated that vehicle in question, which was a Tracker, purchased by the Complainant for commercial purpose and as such this Forum’s hands are tight to entertain the present complaint. He has to it asked that the order of the Honorable High Court passed in writ petition on 17.05.05 and 05.09.08 is self explanatory. So, on all these grounds the case of the Complaint must fail with cost.



    Decisions with reasons:



    In support of his complaint the Complainant has filed ten numbers of documents, namely



    i) Statement of financer dated 18.11.2001. (Exhibit-1).

    ii) Certified copy of order dated 29.04.2005 in W.P. No. 5528(W) of 2005 passed by the Honorable High Court, Calcutta. (Exhibit-2).

    iii) Certified copy of final order dated 05.09.2008 in case No. W.P. No. 5528 (W) of 2005. (Exhibit-3).

    iv) Letter dated 25.07.2006 issued by the Additional Private secretary to the Minister of information and Broad-casting, Government of India to the Opposite Party. (Exhibit-4).

    v) Letter Opposite Party dated 31.10.2006. (Exhibit-5).

    vi) Xerox copy of Telegram dated 27.12.04. (Exhibit-6).

    vii) Letter dated 22.01.05 issued by the O.P. (Exhibit-7).

    viii) Statement of Initial Statement. (Exhibit-8).

    ix) Statement of Final Statement. (Exhibit-9).

    x) Statement of demand by the O.P. (Exhibit-10).



    Opposite Party has filed the following documents -



    a) Xerox copy of the W.P. No.5528 of 2005 by the Honorable High Court, Calcutta. (Exhibit-A).

    b) The order dated 17.05.2005 and 29.04.2005 and 12.05.2005 passed by the Honorable Justice Mr. P. K. Chattopadhyay. . (Exhibit-B).

    c) Comprehensive Statement of Accounts by the Opposite Party, Mahindra and Mahindra Financial Services Limited, reference, Honorable High Court, Calcutta W.P. No.5528(W) of 2005. (Exhibit-C).



    The important documents filed by the Complainant are the order of Honorable Court dated 29.04.2005 (Exhibit-2) and order dated 05.09.2008 passed by the same court in same writ application (Exhibit-3).



    The important documents filed by the Opposite Party in addition to copy of order dated 29.04.2005 are the orders dated 12.05.2005 and 17.05.2005 of Honorable High Court, Calcutta. (Exhibit-A and Exhibit-B respectively).



    In course of our discussion, we would make necessary comments upon Exhibit-2 and Exhibit-3 and Exhibit-A and Exhibit-B in appropriate place.



    Now, we may point out here a pertinent question raised by the Ld. Lawyer for the Opposite Party as to whether this Forum has jurisdiction to entertain the present complaint. The argument made before us on behalf of the Opposite Party, as we understand indicates that the Complainant has purchased the vehicle in question for commercial purpose and as such he is not a consumer within the meaning of explanation to the Section 2d(ii) of the Consumer Protection Act. In conclusion of our discussion of the case of the parties and evidence on record we also make our necessary comments on the argument made by Ld. Lawyer for the Opposite Party.



    Exhibit-1 is the statement of financer that is the –the Opposite Party. Here we find the total amount of loan advanced to the Complainant and the amount he personally provided for purchase of the Tracker. It is admitted position that loan amount that the financer has advanced was Rs.2,80,000.00 (rupees two lacs eighty thousand) only. The Complainant claimed out of the 34 (thirty four) installments, he has paid 25 (twenty five) installments. The amount of all those 25 (twenty five) installments is Rs.2,56,000.00 (rupees two lacs fifty six thousand) only in total. Exhibit-1 gives a picture regarding mode of payment as well as period and amount of installments. It is not disputed by the Opposite Party that the Complainant paid back Rs.2,56,000.00 (rupees two lacs fifty six thousand) only including interest out of loan amount of Rs.2,80,000.00 (rupees two lacs eighty thousand) only.



    Now, the Complainant alleged that the Opposite Party, financer has taken over the possession of the vehicle forcibly. No where in the written version as well as in the argument advanced by the ld. Lawyer for the Opposite Party this serious allegation is disputed / denied / explained / clarified.



    As we may assume from the argument of Ld. Lawyer for the Opposite Party, the vehicle in question having been taken out of possession of the Complainant was not returned, because the Complainant did not deposit Rs.1,00,000.00 (rupees one lac) only in favour of the Opposite Party in compliance with the order of the Honorable High Court, Calcutta. Exhibit-B is the order of the Honorable High Court passed on 17.05.2005 in W.P. No.5528 (W) of 2005. Here we do get the conditional order of returning the possession of the captured vehicle in favour of the Complainant.


    Admittedly the Complainant did not deposit the amount and the Honorable Court by its order dated 05.09.2008 disposed of the said writ application without giving a speaking order to be complied with by either party, rather it gave the Complainant an opportunity to file application in an appropriate for an appropriate order. It is needless to say that the Opposite Party, financer did not bring the notice of the Honorable Court to the non-payment of Rs.1,00,000.00 (rupees one lac) only as directed by the Honorable Court, rather remained silent having taken the possession of the vehicle in question.


    So, the Opposite Party, financer cannot bank upon the order dated 17.05.2005. It is to be noted further that the writ application was filed before the Honorable Court by the Complainant after his vehicle taken out of his possession by the Opposite Party, financer. So the Opposite Party, financer has already taken an illegal step, which is not supported by any provisions of the law in force for the time being in our country. So, the question, which remains unanswered from the side of the Opposite Party, whether the Opposite Party has the right to take possession of the vehicle forcibly without knocking door of the Forum having jurisdiction to provide remedy in the circumstances.



    Our National Commission as well as our Apex Court have observed in similar case like ours the common trend of the financial company to engage muscleman to recover the article against which the loan was granted. This trend has been discouraged by our National Commission as well as Apex Court. Sometimes they taken a serious view about the mode of activities adopted by the financial company to recover the loan. In ICICI Bank versus Prakash Kaur and others, (2007) 2 SCC 771, our Apex Court has taken the view that the financial companies / Banks engaged recovery collection agent and their hired by them to tress the defaulters and physically, mentally and emotionally torture and force them into submitting their dues. Same view has been expressed by the National Commission in a case reported in 2009 (2) CPR 238 (NC). It has been observed by our National Commission that in a democratic country having well established independent judiciary and having various loss it is impermissible for the money lender / financer / banker to take possession of the vehicle, for which loan is advanced, by use of force.



    So, from the decisions we referred to above, we get the principles to be adopted by the financer in the mater of recovery of loan. The fact of the case before the National Commission was the same as we have in our case. So, we may say now, that the Complainant is a consumer and the Opposite Party being the finance provider is deficient in rendering service. So, this Forum may entertain the present case in its form and in law. So, we decide the case in favour of the Complainant.



    Fees paid are correct.



    So, it is ordered,



    That the complaint is allowed on contest with cost against the Opposite Party, Mahindra and Mahindra Financial Services Limited.



    The Complainant do get an order of Rs.2,56,000.00 (rupees two lacs fifty six thousand) only as an award against the Opposite Party in addition the Complainant do also get an order of compensation of Rs.10,000.00 (rupees ten thousand) only against the Opposite Party.



    All an above the Complainant shall get an order of litigation cost of Rs.1,000.00 (rupees one thousand) only against the Opposite Party.



    All the amount (rupees two lacs sixty seven thousand in total) must be paid by the Opposite Party within one month from the date of this order, failing which the Complainant will be at liberty to claim interest at the rate of 6.5 (six and half) percent per annum till realization.



    Furnish the true photocopies of this Final Order to the parties free of cost.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Shri Amritpal S/o Late Sh. Gurmukh Singh Village Bharapur PO Dhaula Kuan ,District Sirmaur, H.P.



    … Complainant.

    Versus



    Snowview Automobiles Pvt Limited ( Authorised Dealer Mahindra & Mahindra Ltd.) through its Branch Manager Sh. Umesh. Branch Office Basal Road Chambaghat Solan H.P.

    …Opposite Party.






    O R D E R:


    This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that on, 23.11.2007, the OP offered to sell a vehicle Bolero Sport to him, for an amount of Rs.5.20 lac, with an assurance that the expenses of insurance shall be borne by them, but the OP at the time of delivery of the vehicle charged a sum of Rs.5.34 lacs from him, contrary to the promise. He further proceeded to aver that immediately after the purchase of the vehicle, its gear box got defective and after repeated requests, the OP replaced the vehicle, but even the replaced vehicle was also defective, inasmuch, as, the vehicle was not as good, as, new one, and also not in proper condition as the whole body of the same was making noise while driving. Hence, it is averred that there is apparent deficiency in service on the part of the OP, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

    2. The OP-Company, in its written version, to the complaint, raised preliminary objections regarding maintainability of the complaint, inasmuch, as, status of the complainant as a consumer, and, violation of terms and conditions of warranty. On merits, it is contended that the earlier vehicle purchased by the complainant, on, 07.11.2007, was replaced by a brand new vehicle, which was approved by Mahindra & Mahindra Ltd., manufacturer of the vehicle. It is further contented that the replaced vehicle was delivered to the complainant after his due satisfaction, defect free and he also assured to pay an amount of Rs.5871/- to the OP, on or before, 15.01.2008. It is further contended that the complainant had violated the warranty policy, inasmuch, as, the vehicle was got repaired by him from unauthorized Service Station and also made alterations and additions in the said vehicle. Hence, it is contended that there was no deficiency in service on their part.

    3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their respective rival contentions.

    4. We have heard the learned counsel for the parties and have thoroughly scanned the entire record of the case.

    5. The earlier vehicle, i.e. Bolero purchased by the complainant from the OP, on, 07.11.2007 suffered certain defects during the currency of the warranty period, hence, the OP, replaced the said vehicle, with a brand new one, on, 23.11.2007. The OP, also does not deny the said fact of replacement of the earlier vehicle with a new one. Even though, the complainant assert that the replaced vehicle is not as good, as, the new one and, is, not in a proper condition, inasmuch, as, the whole body of the vehicle is making noise while driving. However, the OP contends that the complainant proceeded to get the vehicle checked, at, a workshop, other, than, the authorized workshops of the OP, hence, the defects if any, are the result of mishandling of the vehicle. Hence, the liability of the OP under the warranty barring the repair of the vehicle at unauthorized workshop, is, exculpated.

    6. The above stand as canvassed in the reply of the OP, has been supported by an affidavit. The complainant does not repudiate the fact as disclosed in the affidavit corroborating the contention on strength whereof exculpation of its liability is sought. The obvious conclusion which ensues from the above discussion, is, that the defects, if any, as had developed in the vehicle are hence, attributable to the mishandling of the vehicle, on the part of the mechanics, at, the unauthorized workshops of the OP, therefore, the OP, cannot be accordingly directed either to rectify the defects or to replace the defective vehicle with a new one as prayed in the complaint. Moreover, it cannot be said by any stretch of imagination.


    That the vehicle so delivered to the complainant, on, 23.11.2007 in exchange of the earlier vehicle, was not defect free or it suffered, from, inherent manufacturing defect, as there, is, no material on record to substantiate the said fact, rather, the, said assertion of the complainant, stands falsified, by, the existence of the affidavit Annexure R-2, executed by him, on, 23.11.2007, whose contents divulges the fact that he was satisfied with the new vehicle. Now, when and this affidavit Annexure R-2 has not come to be repulsed by the complainant so as to enable us that the said affidavit was received from him by the OP, under coercion and pressure, its recitals attain conclusiveness. Hence, the complaint being without any merit and substance, the relief as sought for by the complainant, cannot be afforded to him.

    7. In view of the above, the, complaint, is, liable to be dismissed and it is ordered accordingly. The parties are left to bear their own cost. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Ses Ram son of Sh. Him Singh resident of village Bajaura, Post Office Bajoura, Tehsil and District Mandi, H.P.



    …Complainant.

    V/S



    1. Balak Autos Private Limited Plot No.658 Industrial area - A ,G.T. Road Sherpur by pass Opp. Dai Cancer Hospital Ludhiana ( Punjab) through its Manager

    2. Mahindra and Mahindra Financial Services Limited NH -21 Ner Chowk Post Office Bhangrotu, Tehsil Sadar, District Mandi, H.P. through its Branch Manager.

    3. Naresh Kumar alias Kuku son of Sh Tara .Chand resident of village Nagwain, Post Office Nagwain, District Mandi, H.P.



    ..Opposite parties.







    ORDER.

    This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986

    ( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties . The complainant averred that the opposite party No.3 is the agent of the opposite party No.2 and at the instance of the opposite party No.3, the complainant agreed to purchase Scorpio SLX 7 STR from the opposite party No.1 and the same was financed by the opposite party No.2. That the opposite party No.3 few days after collecting the relevant documents demanded margin money from him . The opposite party No.3 delivered the vehicle to the complainant at his place on 15-6-2007. The complainant averred that said vehicle was purchased by him for running as a taxi in order to earn his livelihood .


    The complainant further averred that after purchase of the vehicle , same was attached with NHPC Mechanical and Transport circle Garsa at the rate of Rs.19,000/- per month plus fuel and other state tax except Himachal Pradesh. The complainant alleged that the documents of the vehicle which are required for registration of the vehicle as taxi have not been supplied by the opposite party No.1 till date and as a result of which the vehicle was removed by the NHPC vide letter dated 4-1-2008 and the vehicle is lying idle The complainant is not in a position to ply the same due to the the lack of registration of said vehicle . The complainant further alleged that he is paying Rs.18,000/- as monthly instalment to the opposite party No.2 except 2-3 defaults .


    The complainant requested the opposite parties to deliver the relevant documents pertaining to the purchase of the vehicle but his request fell into deaf ears of the opposite parties and matter had been delayed and the opposite party No.2 is also threatening the complainant to repossess the aforesaid vehicle . The complainant further alleged that due to deficiency in service on the part of the opposite parties the complainant could not register his vehicle till date and is not able to ply the same for transport purpose and has suffered financial loss amounting to Rs. 3,00,000/-.With these averments , the complainant had sought a direction to the opposite parties to pay Rs.3,00,000/- as financial loss till date and Rs.50,000/- as damages . Apart from this direction has also been sought to the opposite parties to supply the relevant documents .

    2. The opposite party No.1 has failed to contest the complaint and was proceeded against exparte.

    3 The opposite party No.2 filed reply wherein it had taken preliminary objections that there is relationship of creditor and debtor between the opposite party No.2 and the complainant , that the complainant has not come with clean hands and suppressed the true and material facts from this Forum , that the complainant has entered into an agreement for arbitration with the opposite party No.2 and complaint is not maintainable , that this Forum has no jurisdiction to entertain and try the present complaint , that no cause of action has accrued to file the complainant against the opposite party No.2 and that the complaint is not legally maintainable in the present forum. On merits , the opposite party No.2 had pleaded that the complainant has approached the opposite party No.2 to take the financial assistance for the purchase of the vehicle and he was advanced loan, and has financed the said vehicle to the tune of Rs..7,35,000/- to the complainant and the amount is to be repaid in 59 instalments of Rs. 18500/- each and the amount has been disbursed to the complainant .The opposite party No.1 is authorized dealer of the vehicle and is authorized to issue temporary registration certificate, sale certificate and other relevant documents and it has no concern with the same . Rest of the allegations have been denied . The opposite party No.2 had prayed for dismissal of the complaint .

    4 The opposite party No.3 has filed reply by raising preliminary objections that the complainant has not come with clean hands and suppressed the material facts , that the complainant has no cause of action to file the present complaint, and that the present complaint is not maintainable . On merits the opposite party No.3 admitted that he is agent of the opposite party No.2 but denied the remaining contents of the complaint in totality.

    5. The complainant had filed rejoinder to the replies of the opposite parties No.2 and 3 reiterating the contents of the complainant and controverted the allegations made in the reply .

    6 We have heard the ld. counsel for the parties and have carefully gone through the record. It is the admitted case of the complainant that the vehicle has been purchased by him from the opposite party No.1. It is also admitted case of the complainant that the opposite party No.2 had financed his vehicle in question and the opposite party No.3 is the agent of the opposite party No.2. The case of the complainant is that the relevant documents pertaining to the vehicle in question which were required for registration of the vehicle as a taxi had not been supplied to him by the opposite party No.1.


    The complainant has failed to explain as to how the opposite party No.2 who is the financer and the opposite party No.3 who is its agent is liable if the requisite documents have not been supplied by the opposite party No.1 to the complainant. During the course of arguments also , the ld. counsel for the complainant has failed to explain as to how the opposite parties No. 2 and 3 are liable . Therefore, in our opinion , the complaint is not maintainable against the opposite parties No. 2 who is financer of the vehicle and against the opposite party No.3 who is the agent of the opposite party No.3.

    7 Now the question which arises for determination by this Forum is as to whether the opposite party No.1 had not supplied the relevant documents to the complainant. In the rejoinder filed by the complainant, he has mentioned in para No.3(vii) that the complainant got his vehicle registered on 1-1-2009 after getting duplicate documents pertaining to the purchase of the vehicle from the opposite party No.1. However, the complainant has deliberately not disclosed the date on which the documents were received by him.


    As per the photocopy of the consigner slip of Trackon Couriers Private Limited filed by the complainant himself , the complainant had received the documents on 20-11-2008 vide Serial number 124310124. Therefore , as per the complainant himself he had received the documents from the opposite party No.1 and had also registered the vehicle .Since the documents as required by the complainant for registration of the vehicle has been supplied to the complainant by the opposite party No.1 , we feel that the main grievance of the complainant stood redressed and he is not entitled to any relief .

    8 In the light of what has been discussed hereinabove, complaint fails and is hereby dismissed with no order as to costs .

    9 Copy of this order be supplied to the parties free of cost as per Rules.

    10. File, after due completion be consigned to the Record Room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Abdul Quaium,

    Son of Md. Sahimuddin,

    Village – Prannagar, P.O. – Rasakhowa,

    P.S. – Karandighi, District – Uttar Dinajpur. Complainant.



    versus



    The Mahindra & Mahindra Financial Services Limited,

    Represented by the Executive Officer,

    Mahindra & Mahindra Finance,

    2nd Mile, Sevoke Road, P.O. and P.S.: Siliguri,

    District – Darjeeling, West Bengal. Opposite Party.







    Complainant, has filed this complaint praying for an award of Rs.2,56,000.00 (rupees two lacs fifty six thousand) only with interest and a further sum of Rs.2,00,000.00 (rupees two lacs) only as compensation against the Opposite Party, The Mahindra and Mahindra Financial Services Limited for alleged and forcible repossession of the vehicle, which the Complainant purchased with the financial help of the Opposite Party on the strength of an agreement dated 18.11.2001executed in between them. It was agreed that Opposite Party will finance a sum of Rs.2,80,000.00 (rupees two lacs eighty thousand) only, which was payable in 34 (thirty four) installment of Rs.10,200.00 (rupees ten thousand two hundred) only each per month. He claimed that he has already paid 25 installments, which is in terms of money a sum of Rs.2,56,000.00 (rupees two lacs fifty six thousand) only and Opposite Party is entitled to claim only Rs.86,724.00 (rupees eighty six thousand seven hundred twenty four) only as dues from the Complainant.


    It is further alleged that the rate of interest, which was originally 8.25 percent increased to 8.5 percent and finally to 9.75 percent, without the knowledge of the Complainant. It is claimed that the Complainant approached the Opposite Party with the intention the pay the balance installment upon right calculation, but the Opposite Party did not response. It is further alleged that the Opposite Party on 25.12.2004 took possession of the vehicle forcibly and kept it at a premises named and styled as Joyguru Automobiles, Durgapur Rajbari under P.S. Raiganj. Complainant requested the Opposite Party to release the vehicle, but his request fell on a deaf ear. Then the Complainant filed one writ petition before Honorable High Court, Calcutta (vide W.P. No.5528 (W) of 2005). On 05.09.2008 Honorable dismissed the writ petition with liberty to apply before the appropriate Forum for appropriate order, hence this complaint.



    The Opposite Party contested the complaint upon filing one written version. In its written version Opposite Party has referred to the writ petition of the Complainant. What additional he asserted is that the Honorable Court directed the Complainant to deposit Rs.1,00,000.00 (rupees one lac) only in favour of the Opposite Party. But the Complainant, it is alleged, did not comply with the order. In the additional written version of the Opposite Party it is agitated that vehicle in question, which was a Tracker, purchased by the Complainant for commercial purpose and as such this Forum’s hands are tight to entertain the present complaint. He has to it asked that the order of the Honorable High Court passed in writ petition on 17.05.05 and 05.09.08 is self explanatory. So, on all these grounds the case of the Complaint must fail with cost.



    Decisions with reasons:



    In support of his complaint the Complainant has filed ten numbers of documents, namely



    i) Statement of financer dated 18.11.2001. (Exhibit-1).

    ii) Certified copy of order dated 29.04.2005 in W.P. No. 5528(W) of 2005 passed by the Honorable High Court, Calcutta. (Exhibit-2).

    iii) Certified copy of final order dated 05.09.2008 in case No. W.P. No. 5528 (W) of 2005. (Exhibit-3).

    iv) Letter dated 25.07.2006 issued by the Additional Private secretary to the Minister of information and Broad-casting, Government of India to the Opposite Party. (Exhibit-4).

    v) Letter Opposite Party dated 31.10.2006. (Exhibit-5).

    vi) Xerox copy of Telegram dated 27.12.04. (Exhibit-6).

    vii) Letter dated 22.01.05 issued by the O.P. (Exhibit-7).

    viii) Statement of Initial Statement. (Exhibit-8).

    ix) Statement of Final Statement. (Exhibit-9).

    x) Statement of demand by the O.P. (Exhibit-10).



    Opposite Party has filed the following documents -



    a) Xerox copy of the W.P. No.5528 of 2005 by the Honorable High Court, Calcutta. (Exhibit-A).

    b) The order dated 17.05.2005 and 29.04.2005 and 12.05.2005 passed by the Honorable Justice Mr. P. K. Chattopadhyay. . (Exhibit-B).

    c) Comprehensive Statement of Accounts by the Opposite Party, Mahindra and Mahindra Financial Services Limited, reference, Honorable High Court, Calcutta W.P. No.5528(W) of 2005. (Exhibit-C).



    The important documents filed by the Complainant are the order of Honorable Court dated 29.04.2005 (Exhibit-2) and order dated 05.09.2008 passed by the same court in same writ application (Exhibit-3).



    The important documents filed by the Opposite Party in addition to copy of order dated 29.04.2005 are the orders dated 12.05.2005 and 17.05.2005 of Honorable High Court, Calcutta. (Exhibit-A and Exhibit-B respectively).



    In course of our discussion, we would make necessary comments upon Exhibit-2 and Exhibit-3 and Exhibit-A and Exhibit-B in appropriate place.



    Now, we may point out here a pertinent question raised by the Ld. Lawyer for the Opposite Party as to whether this Forum has jurisdiction to entertain the present complaint. The argument made before us on behalf of the Opposite Party, as we understand indicates that the Complainant has purchased the vehicle in question for commercial purpose and as such he is not a consumer within the meaning of explanation to the Section 2d(ii) of the Consumer Protection Act. In conclusion of our discussion of the case of the parties and evidence on record we also make our necessary comments on the argument made by Ld. Lawyer for the Opposite Party.



    Exhibit-1 is the statement of financer that is the –the Opposite Party. Here we find the total amount of loan advanced to the Complainant and the amount he personally provided for purchase of the Tracker. It is admitted position that loan amount that the financer has advanced was Rs.2,80,000.00 (rupees two lacs eighty thousand) only. The Complainant claimed out of the 34 (thirty four) installments, he has paid 25 (twenty five) installments. The amount of all those 25 (twenty five) installments is Rs.2,56,000.00 (rupees two lacs fifty six thousand) only in total. Exhibit-1 gives a picture regarding mode of payment as well as period and amount of installments. It is not disputed by the Opposite Party that the Complainant paid back Rs.2,56,000.00 (rupees two lacs fifty six thousand) only including interest out of loan amount of Rs.2,80,000.00 (rupees two lacs eighty thousand) only.



    Now, the Complainant alleged that the Opposite Party, financer has taken over the possession of the vehicle forcibly. No where in the written version as well as in the argument advanced by the ld. Lawyer for the Opposite Party this serious allegation is disputed / denied / explained / clarified.



    As we may assume from the argument of Ld. Lawyer for the Opposite Party, the vehicle in question having been taken out of possession of the Complainant was not returned, because the Complainant did not deposit Rs.1,00,000.00 (rupees one lac) only in favour of the Opposite Party in compliance with the order of the Honorable High Court, Calcutta. Exhibit-B is the order of the Honorable High Court passed on 17.05.2005 in W.P. No.5528 (W) of 2005. Here we do get the conditional order of returning the possession of the captured vehicle in favour of the Complainant. Admittedly the Complainant did not deposit the amount and the Honorable Court by its order dated 05.09.2008 disposed of the said writ application without giving a speaking order to be complied with by either party, rather it gave the Complainant an opportunity to file application in an appropriate for an appropriate order.


    It is needless to say that the Opposite Party, financer did not bring the notice of the Honorable Court to the non-payment of Rs.1,00,000.00 (rupees one lac) only as directed by the Honorable Court, rather remained silent having taken the possession of the vehicle in question. So, the Opposite Party, financer cannot bank upon the order dated 17.05.2005. It is to be noted further that the writ application was filed before the Honorable Court by the Complainant after his vehicle taken out of his possession by the Opposite Party, financer. So the Opposite Party, financer has already taken an illegal step, which is not supported by any provisions of the law in force for the time being in our country. So, the question, which remains unanswered from the side of the Opposite Party, whether the Opposite Party has the right to take possession of the vehicle forcibly without knocking door of the Forum having jurisdiction to provide remedy in the circumstances.



    Our National Commission as well as our Apex Court have observed in similar case like ours the common trend of the financial company to engage muscleman to recover the article against which the loan was granted. This trend has been discouraged by our National Commission as well as Apex Court. Sometimes they taken a serious view about the mode of activities adopted by the financial company to recover the loan. In ICICI Bank versus Prakash Kaur and others, (2007) 2 SCC 771, our Apex Court has taken the view that the financial companies / Banks engaged recovery collection agent and their hired by them to tress the defaulters and physically, mentally and emotionally torture and force them into submitting their dues. Same view has been expressed by the National Commission in a case reported in 2009 (2) CPR 238 (NC). It has been observed by our National Commission that in a democratic country having well established independent judiciary and having various loss it is impermissible for the money lender / financer / banker to take possession of the vehicle, for which loan is advanced, by use of force.



    So, from the decisions we referred to above, we get the principles to be adopted by the financer in the mater of recovery of loan. The fact of the case before the National Commission was the same as we have in our case. So, we may say now, that the Complainant is a consumer and the Opposite Party being the finance provider is deficient in rendering service. So, this Forum may entertain the present case in its form and in law. So, we decide the case in favour of the Complainant.



    Fees paid are correct.



    So, it is ordered,



    That the complaint is allowed on contest with cost against the Opposite Party, Mahindra and Mahindra Financial Services Limited.



    The Complainant do get an order of Rs.2,56,000.00 (rupees two lacs fifty six thousand) only as an award against the Opposite Party in addition the Complainant do also get an order of compensation of Rs.10,000.00 (rupees ten thousand) only against the Opposite Party.



    All an above the Complainant shall get an order of litigation cost of Rs.1,000.00 (rupees one thousand) only against the Opposite Party.



    All the amount (rupees two lacs sixty seven thousand in total) must be paid by the Opposite Party within one month from the date of this order, failing which the Complainant will be at liberty to claim interest at the rate of 6.5 (six and half) percent per annum till realization.



    Furnish the true photocopies of this Final Order to the parties free of cost.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Shri Amritpal S/o Late Sh. Gurmukh Singh Village Bharapur PO Dhaula Kuan ,District Sirmaur, H.P.



    … Complainant.

    Versus



    Snowview Automobiles Pvt Limited ( Authorised Dealer Mahindra & Mahindra Ltd.) through its Branch Manager Sh. Umesh. Branch Office Basal Road Chambaghat Solan H.P.

    …Opposite Party.






    O R D E R:



    Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that on, 23.11.2007, the OP offered to sell a vehicle Bolero Sport to him, for an amount of Rs.5.20 lac, with an assurance that the expenses of insurance shall be borne by them, but the OP at the time of delivery of the vehicle charged a sum of Rs.5.34 lacs from him, contrary to the promise. He further proceeded to aver that immediately after the purchase of the vehicle, its gear box got defective and after repeated requests, the OP replaced the vehicle, but even the replaced vehicle was also defective, inasmuch, as, the vehicle was not as good, as, new one, and also not in proper condition as the whole body of the same was making noise while driving. Hence, it is averred that there is apparent deficiency in service on the part of the OP, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

    2. The OP-Company, in its written version, to the complaint, raised preliminary objections regarding maintainability of the complaint, inasmuch, as, status of the complainant as a consumer, and, violation of terms and conditions of warranty. On merits, it is contended that the earlier vehicle purchased by the complainant, on, 07.11.2007, was replaced by a brand new vehicle, which was approved by Mahindra & Mahindra Ltd., manufacturer of the vehicle. It is further contented that the replaced vehicle was delivered to the complainant after his due satisfaction, defect free and he also assured to pay an amount of Rs.5871/- to the OP, on or before, 15.01.2008. It is further contended that the complainant had violated the warranty policy, inasmuch, as, the vehicle was got repaired by him from unauthorized Service Station and also made alterations and additions in the said vehicle. Hence, it is contended that there was no deficiency in service on their part.

    3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their respective rival contentions.

    4. We have heard the learned counsel for the parties and have thoroughly scanned the entire record of the case.

    5. The earlier vehicle, i.e. Bolero purchased by the complainant from the OP, on, 07.11.2007 suffered certain defects during the currency of the warranty period, hence, the OP, replaced the said vehicle, with a brand new one, on, 23.11.2007. The OP, also does not deny the said fact of replacement of the earlier vehicle with a new one. Even though, the complainant assert that the replaced vehicle is not as good, as, the new one and, is, not in a proper condition, inasmuch, as, the whole body of the vehicle is making noise while driving. However, the OP contends that the complainant proceeded to get the vehicle checked, at, a workshop, other, than, the authorized workshops of the OP, hence, the defects if any, are the result of mishandling of the vehicle. Hence, the liability of the OP under the warranty barring the repair of the vehicle at unauthorized workshop, is, exculpated.

    6. The above stand as canvassed in the reply of the OP, has been supported by an affidavit. The complainant does not repudiate the fact as disclosed in the affidavit corroborating the contention on strength whereof exculpation of its liability is sought. The obvious conclusion which ensues from the above discussion, is, that the defects, if any, as had developed in the vehicle are hence, attributable to the mishandling of the vehicle, on the part of the mechanics, at, the unauthorized workshops of the OP, therefore, the OP, cannot be accordingly directed either to rectify the defects or to replace the defective vehicle with a new one as prayed in the complaint.


    Moreover, it cannot be said by any stretch of imagination, that the vehicle so delivered to the complainant, on, 23.11.2007 in exchange of the earlier vehicle, was not defect free or it suffered, from, inherent manufacturing defect, as there, is, no material on record to substantiate the said fact, rather, the, said assertion of the complainant, stands falsified, by, the existence of the affidavit Annexure R-2, executed by him, on, 23.11.2007, whose contents divulges the fact that he was satisfied with the new vehicle. Now, when and this affidavit Annexure R-2 has not come to be repulsed by the complainant so as to enable us that the said affidavit was received from him by the OP, under coercion and pressure, its recitals attain conclusiveness. Hence, the complaint being without any merit and substance, the relief as sought for by the complainant, cannot be afforded to him.

    7. In view of the above, the, complaint, is, liable to be dismissed and it is ordered accordingly. The parties are left to bear their own cost. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Shri Madan Sharma S/O Shri M.R. Sharma,

    R/ V.P.O. Deoth, Tehsil Chopal, District Shimla, H.P.



    … Complainant.

    Versus



    1. Shri Chand Ghotia Brothers, 322, Industrial Area,

    Phase-II, Panchkula-134113, Chandigarh.



    2. Mahindra & Mahindra Ltd.,

    S.C.O. 17, Sector-26 D, Madhya Marg,

    Chandigarh-160019 through its Area Manager.



    3. Mahindra & Mahindra Financial Services Ltd.,

    Asha Bhawan Opposite Hotel D-Park Tara Devi,

    Kachhi Ghati, Shimla, H.P. through its Manager.



    …Opposite Parties










    O R D E R:

    This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12, of the Consumer Protection Act, 1986. The complainant avers that he purchased Bolero Caper utility from the OP No.1 in the month of June, 2005, for a total consideration of Rs. 4.17 lacs, which was financed by him with the OP No.3, while the OP No.2 is the dealer of the OP No.1. He further proceeded to aver that when the aforesaid vehicle was brought by him to his native place, it was found that the seat belt of the same and steering box were not proper, as also, the oil-seal and steering box, diesel tank started leaking, during warranty period, hence, the said defects were brought to the notice of the OPs, but the OPs did nothing and as such, he, was forced to park the said vehicle averring that there is manufacturing defects in the vehicle. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. The OPs, in its written version to the complaint, has raised various preliminary objections, vis-à-vis maintainability of the complaint, lack of territorial jurisdiction to entertain the present complaint, and breach of terms and conditions of the warranty. On merits, it is admitted that the vehicle aforesaid was sold to the complainant, but it is denied that this vehicle was having manufacturing defects. The defects, if any, had erupted due to mishandling or due to repairs carried out at unauthorized workshops, for which act on the part of the complainant, they cannot be held liable to rectify or replace the vehicle. Hence, it is denied that there was any deficiency in service on their part or that they have received the excess amount from the complainant.

    3. Thereafter the parties led evidence by way of affidavits and documents in support of their respective rival contentions.

    4. We have heard the learned counsel for the parties at length and, have, also, thoroughly scanned the entire record of the case meticulously.

    5. During the currency of the warranty, the complainant, alleges, that, his vehicle developed manufacturing defect, hence, he had proceeded to get the vehicle repaired at the authorized workshop of the OPs, which repairs did not bear the desired results and the manufacturing defects persisted.

    6. The OPs repudiate the claim of the complainant on ground of breach of warranty, inasmuch, as, the complainant never approached the OPs for rectification of the defects nor had got the defects rectified in authorized workshops of the OP. The defects as were rectified at the purported authorized workshops of the OPs, has, been denied to be the authorized workshops, of, the OP No.1.


    The said fact has not been repudiated by the complainant, hence, with the complainant proceeding not to get the defects as and then erupted, rectified, either, at, Chandigarh or any of its authorized workshops, hence, his proceeding to get the defects rectified, at, unauthorized workshops, has, in his proceeding to do so, breached the terms and conditions of the warranty. Obviously, when, he, has proceeded to breach the terms and conditions of the warranty, the, purported manufacturing defects, as, had erupted in the vehicle, may well be adjudged to be the result of mishandling of the vehicle, at, the unauthorized workshops of the OPs. Resultantly, for such defects, as, having erupted in the vehicle, the OPs, cannot hence, be held liable and as such, the complaint being without any merit, hence, deserves dismissal.

    7. In the light of the above discussion, we find no force in this complaint and it being without any merit, is dismissed, leaving the parties to bear their own cost. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
  • adv.sumitadv.sumit Senior Member
    edited October 2009
    Ses Ram son of Sh. Him Singh resident of village Bajaura, Post Office Bajoura, Tehsil and District Mandi, H.P.



    …Complainant.

    V/S



    1. Balak Autos Private Limited Plot No.658 Industrial area - A ,G.T. Road Sherpur by pass Opp. Dai Cancer Hospital Ludhiana ( Punjab) through its Manager

    2. Mahindra and Mahindra Financial Services Limited NH -21 Ner Chowk Post Office Bhangrotu, Tehsil Sadar, District Mandi, H.P. through its Branch Manager.

    3. Naresh Kumar alias Kuku son of Sh Tara .Chand resident of village Nagwain, Post Office Nagwain, District Mandi, H.P.



    ..Opposite parties.








    ORDER.



    This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986

    ( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties . The complainant averred that the opposite party No.3 is the agent of the opposite party No.2 and at the instance of the opposite party No.3, the complainant agreed to purchase Scorpio SLX 7 STR from the opposite party No.1 and the same was financed by the opposite party No.2.


    That the opposite party No.3 few days after collecting the relevant documents demanded margin money from him . The opposite party No.3 delivered the vehicle to the complainant at his place on 15-6-2007. The complainant averred that said vehicle was purchased by him for running as a taxi in order to earn his livelihood . The complainant further averred that after purchase of the vehicle , same was attached with NHPC Mechanical and Transport circle Garsa at the rate of Rs.19,000/- per month plus fuel and other state tax except Himachal Pradesh.


    The complainant alleged that the documents of the vehicle which are required for registration of the vehicle as taxi have not been supplied by the opposite party No.1 till date and as a result of which the vehicle was removed by the NHPC vide letter dated 4-1-2008 and the vehicle is lying idle The complainant is not in a position to ply the same due to the the lack of registration of said vehicle .


    The complainant further alleged that he is paying Rs.18,000/- as monthly instalment to the opposite party No.2 except 2-3 defaults . The complainant requested the opposite parties to deliver the relevant documents pertaining to the purchase of the vehicle but his request fell into deaf ears of the opposite parties and matter had been delayed and the opposite party No.2 is also threatening the complainant to repossess the aforesaid vehicle .


    The complainant further alleged that due to deficiency in service on the part of the opposite parties the complainant could not register his vehicle till date and is not able to ply the same for transport purpose and has suffered financial loss amounting to Rs. 3,00,000/-.With these averments , the complainant had sought a direction to the opposite parties to pay Rs.3,00,000/- as financial loss till date and Rs.50,000/- as damages . Apart from this direction has also been sought to the opposite parties to supply the relevant documents .

    2. The opposite party No.1 has failed to contest the complaint and was proceeded against exparte.

    3 The opposite party No.2 filed reply wherein it had taken preliminary objections that there is relationship of creditor and debtor between the opposite party No.2 and the complainant , that the complainant has not come with clean hands and suppressed the true and material facts from this Forum , that the complainant has entered into an agreement for arbitration with the opposite party No.2 and complaint is not maintainable , that this Forum has no jurisdiction to entertain and try the present complaint.


    That no cause of action has accrued to file the complainant against the opposite party No.2 and that the complaint is not legally maintainable in the present forum. On merits , the opposite party No.2 had pleaded that the complainant has approached the opposite party No.2 to take the financial assistance for the purchase of the vehicle and he was advanced loan, and has financed the said vehicle to the tune of Rs..7,35,000/- to the complainant and the amount is to be repaid in 59 instalments of Rs. 18500/- each and the amount has been disbursed to the complainant .


    The opposite party No.1 is authorized dealer of the vehicle and is authorized to issue temporary registration certificate, sale certificate and other relevant documents and it has no concern with the same . Rest of the allegations have been denied . The opposite party No.2 had prayed for dismissal of the complaint .

    4 The opposite party No.3 has filed reply by raising preliminary objections that the complainant has not come with clean hands and suppressed the material facts , that the complainant has no cause of action to file the present complaint, and that the present complaint is not maintainable . On merits the opposite party No.3 admitted that he is agent of the opposite party No.2 but denied the remaining contents of the complaint in totality.

    5. The complainant had filed rejoinder to the replies of the opposite parties No.2 and 3 reiterating the contents of the complainant and controverted the allegations made in the reply .

    6 We have heard the ld. counsel for the parties and have carefully gone through the record. It is the admitted case of the complainant that the vehicle has been purchased by him from the opposite party No.1. It is also admitted case of the complainant that the opposite party No.2 had financed his vehicle in question and the opposite party No.3 is the agent of the opposite party No.2.


    The case of the complainant is that the relevant documents pertaining to the vehicle in question which were required for registration of the vehicle as a taxi had not been supplied to him by the opposite party No.1. The complainant has failed to explain as to how the opposite party No.2 who is the financer and the opposite party No.3 who is its agent is liable if the requisite documents have not been supplied by the opposite party No.1 to the complainant.


    During the course of arguments also , the ld. counsel for the complainant has failed to explain as to how the opposite parties No. 2 and 3 are liable . Therefore, in our opinion , the complaint is not maintainable against the opposite parties No. 2 who is financer of the vehicle and against the opposite party No.3 who is the agent of the opposite party No.3.

    7 Now the question which arises for determination by this Forum is as to whether the opposite party No.1 had not supplied the relevant documents to the complainant. In the rejoinder filed by the complainant, he has mentioned in para No.3(vii) that the complainant got his vehicle registered on 1-1-2009 after getting duplicate documents pertaining to the purchase of the vehicle from the opposite party No.1. However, the complainant has deliberately not disclosed the date on which the documents were received by him.


    As per the photocopy of the consigner slip of Trackon Couriers Private Limited filed by the complainant himself , the complainant had received the documents on 20-11-2008 vide Serial number 124310124. Therefore , as per the complainant himself he had received the documents from the opposite party No.1 and had also registered the vehicle .Since the documents as required by the complainant for registration of the vehicle has been supplied to the complainant by the opposite party No.1 , we feel that the main grievance of the complainant stood redressed and he is not entitled to any relief .
  • adv.singhadv.singh Senior Member
    edited January 2010
    Complaint No. 346/23.5.2008.
    Date of order: 10.11.2009.
    Pateshwari Tiwari son of Sh. Tulsi Ram, resident of House No.3376, Street No.3, Shaheed Ajit Singh Colony, Giaspura, Ludhiana.
    (Complainant)
    Vs.
    1. Mahindra Finance, Mahindra & Mahindra Finance Services Ltd. Plot No.15, Giaspura, Opposite Swami Motors Workshop, near Dhandari Railway Station, G.T. Road, Ludhiana through its Officer-in-Charge.

    2. Kohli Auto Company (s), 656, Industrial Area-A, Textile Colony, Bye Pass, Ludhiana through its authorised signatory.

    (Opposite parties)

    COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

    Quorum:

    Sh. T.N. Vaidya, President.

    Sh. Rajesh Kumar, Member.
    Present:

    Sh. A.K. Giri Advocate for the complainnt.

    Sh. Dinesh katyal Advocate for OP No.1.

    Sh. Gulzar Mohd. Advocate for OpNo.2.
    O R D E R

    T.N. VAIDYA, PRESIDENT:

    1. complainant claiming himself to be rustic and illiterate, alleged in this complaint under section 12 of the Consumer Protection Act, 1986 that taking advantage, opposite party got booked a three wheeler by charging booking amount vide cheque dated 28.3.2008. He got three wheeler financed from opposite party no.1, after making down payment of Rs.14,000/- paid through cheque dated 2.5.2006 and Rs.14,300/- paid in cash on 28.8.2006. Total amount paid by him was Rs. 31,300/-. Vehicle was financed from opposite party no.1 and he was handed over three wheeler bearing registration no. PB-10-BV-1857. He was asked to pay monthly instalments of the loan and his signatures were obtained on various blank papers, forms and letters etc. Five blank cheques bearing no. 598921 to 589825 drawn on Punjab National Bank, Ludhiana were also obtained without filling any particulars of the cheques, by way of security for repayment of the loan. Complainant paid 5-6 EMIs to opposite party against proper receipt but could not pay 2-3 instalments in time. Opposite party snatched the vehicle along with documents from the complainant on 18.2.2007 by repossessing the same. Thereafter, he requested for settlement of his case. But opposite party informed that the vehicle would not be returned and complainant not to raise objection and nothing will be repayable by him after such repossession. Then he demanded return of blank cheques but was told that said cheques would be returned after selling the vehicle. But when the complainant for getting entry effected in his passbook went to the bank, was surprised that cheque no. 589825 for Rs.1,08,533/- has been encashed by opposite party no.1 though he was not liable to pay any amount after repossession of the vehicle by opposite party no.1 and nothing was due from him. Opposite party no.1, as such, resorted to unfair trade practice by encashing his signed blank cheques despite repossessing the vehicle and when nothing was due from him. It caused financial loss, pain, sufferance and agony to the complainant. Therefore, served legal notice dated 26.3.2008 to opposite party demanding Rs.1,08,533/-, return of four cheques and pay Rs. 50,000/- as compensation, to which paid no heed.

    2. Opposite party no.1 in its reply pleaded that the complaint is not maintainable, complainant has no locus standi to file the same and this Fora has no jurisdiction to try it. Financing three wheeler of the complainant is admitted to be correct. But claimed that complainant failed to repay EMIs as per loan agreement, so, he of his own surrendered the three wheeler and executed letter signed by him in their favour. He by that authority in writing authorised opposite party no.1 to recover loan amount by selling financed three wheeler, in case failed to repay the same within seven days. He also undertook liability to pay out any shortfall after resale of the vehicle. Under authority given by the complainant as well as terms and conditions of clause 12 of the agreement, they were entitled to recover outstanding amount of Rs.1,08,533/- from the complainant. After selling three wheeler, there was short fall of Rs.1,08,533/- qua which notice was given to the complainant. Hence, no illegality was committed by encashing the cheque nor they are guilty of misconduct or resorting to unfair trade practice.

    3. Opposite party no.2 vide separate written statement also took objection qua maintainability of the complaint and claimed that they have been unnecessarily dragged into litigation, complaint against them is false and frivolous. They admitted selling the vehicle to the complainant but claimed that no illegality was committed by them. They never got the vehicle of the complainant financed from opposite party no.1 and obtained his signatures on blank forms and papers. They have nothing to do with the loan or its repayment by the complainant. Nothing wrong was done by them, so, the complaint against them deserves dismissal.

    4. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

    5. We have heard the arguments addressed by the ld. counsel for the parties, gone through file, scanned the documents and other material on record.

    6. Admitted aspects are that complainant purchased three wheeler from opposite party no.2 and got it financed from opposite party no.1 by entering into a loan agreement Ex.R.1 and obtained loan of Rs.1,70,000/- after making down payment of Rs. 29,875/- and service charges etc. Loan was repayable in 48 monthly equated instalments of Rs. 4888/- as detailed in schedule 1 of the agreement dated 19.5.2006 (Ex.R1).

    7. It is an admitted case of the complainant that he failed to repay certain instalments within time, as a result of which opposite party no.1 had called upon the complainant vide letter Ex.R.3 dated 25.6.2007 that a sum of Rs.29,169/- was overdue from him. Opposite party no.1 then obtained writing Ex.R.3 dated 25.6.2007 from the complainant signed by him to the effect that due to failure to pay overdue amount of Rs.29,169/- himself surrendered the vehicle voluntarily and sought seven days time to arrange the funds to pay overdue and take back the vehicle. It is further mentioned in this undertaking that in case of his failure to make payment, vehicle may be disposed off for its available market price and sale proceeds credited against total amount payable by him under loan account. In case of any short fall after such appropriation of the sale proceeds, agreed to pay the same to the Company.

    8. Also not in dispute that opposite party no.1 sold financed vehicle of the complainant for Rs.70,000/- only and thereafter claimed a sum of Rs. 1,08,533/- still due from loan account of the complainant by issuing him notice Ex.R.6 dated 5.12.2007. Then that amount of Rs.1,08,533/- was withdrawn by opposite party no.1 from saving bank account of the complainant, on the basis of blank signed cheques obtained from him earlier at the time of granting the loan.

    9. Now coming to the points raised before us in the light of aforesaid back drop of the case.

    10. Though complainant claimed repossessing of the vehicle forcibly by opposite party no.1. But there is no material to sustain his such claim. It appears that when he failed to pay EMIs regularly, as agreed under the loan agreement Ex.R.1, he himself surrendered the vehicle to opposite party no.1 under letter Ex.R.3 dated 25.6.2007. It does not appear to be a case of forcible repossession of the vehicle by opposite party no.1 with the help of musclemen.

    11. Opposite party no.1 to our view appears to be guilty of resorting to unfair trade practice, by selling repossessed vehicle of the complainant, without any prior notice or intimation to him and also suppressing and withholding material concerning sale of the vehicle. No doubt, in printed letter Ex.R.3, it is mentioned that opposite party no.1 may dispose of the vehicle for its available market price and proceeds to be credited against his loan account. But that printed letter which simply bears signatures of the complainant is dated 25.6.2007. The vehicle was sold either somewhere in Oct.2007 as sale proceeds of Rs.70,000/- were shown to be credited to the loan account of the complainant on collection of the amount on 31.10.2007. It consequently would have been in fairness of the things that opposite party no.1 should have been fair to its own consumer, by giving him pre sale notice or intimation. As the vehicle was repossessed in June, 2007 and auctioned/sold in Oct. 2007 after four months. Therefore, issuance of such notice of sale was obligatory on the part of opposite party no.1.

    12. Grouse of the complainant is that they sold the vehicle for a throw away price though it was of very high price. We can not ignore such contention, as the vehicle was financed for Rs.1,70,000/- and down payment of Rs. 29,300/- was raised by the complainant. It means cost of the vehicle was around Rs.2,00,000/-. Vehicle was new, purchased in May, 2006 and within 5-6 month of such purchase, was sold for mere amount of Rs.70,000/- only. Proceedings dealing with such resale of the vehicle with ulterior motive stand withheld by opposite party no.1 from the Fora. There is no proof that any publicity was given for sale of the vehicle and for that amount actually it was sold. No proof is adduced. How many persons participated in the bid if sold by public auction or submitted tenders, if invited. Such record would have helped us to conclude the amount for which the vehicle was sold. Opposite party no.1 simply alleged that it was sold for Rs.70,000/-, which amount was credited to loan account of the complainant. But they failed to justify such sale for Rs.70,000/- or that actually it was sold for that amount and not more than that. By withholding such material aspect from the Fora, certainly we feel that opposite party no.1 would be guilty of misconduct, resorting to unfair trade practice. It must have caused inconvenience, financial loss and harassment to the complainant. As the vehicle valuing Rs.2,00,000/- within 5 months of the purchase, was sold merely for Rs. 70,000/-only. Also no proof adduced to establish that it was sold for that amount. Record of sale has been withheld deliberately and intentionally, in order to suppress its sale price, which certainly would be misconduct on the part of opposite party no.1.

    13. Therefore, we allow this complaint against opposite party no.1 only by directing them to pay compensation of Rs.30,000/-(Rs. Thirty Thousands only) to the complainant and litigation cost of Rs.2000/-(Rs. Two Thousands only) within 45 days of receipt of copy of the order, which be made available to the parties free of costs. Complaint against opposite party no.2 is dismissed. File be completed and consigned to record.
  • adv.singhadv.singh Senior Member
    edited January 2010
    consumer case(CC) No. CC/09/33
    Rajinder Singh
    ...........Appellant(s)
    Vs.

    Imperial Motors

    Mahindra &Mahindra Ltd
    ...........Respondent(s)


    BEFORE:


    Complainant(s)/Appellant(s):


    OppositeParty/Respondent(s):

    OppositeParty/Respondent(s):


    OppositeParty/Respondent(s):

    ORDER


    DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB) CC.No.33 of 03-02-2009 Decided on: 13.11.2009 Rajinder Singh son of Sh. Jangir Singh, resident of near Bus Stand, Bhagta Bhai Ka, Distt. Bathinda. ……….Complainant. Versus 1. Imperial Motors, G.T. Road, Bathinda, through its prop./partner/Manager. 2. Mahindra & Mahindra Ltd., Zaheerabad 502 200 Distt. Medak (AP), through its Managing Director/Director. 3. Mahindra & Mahindra Ltd., Registered office Gateway Building Appollo Bunder, Mumbai, through its Managing Director/Director/Manager. ………….Opposite parties. Complaint under section 12 of the Consumer Protection Act,1986. Present:- For the complainant : Sh. G.S.Sidhu, counsel for the complainant and also complainant in person. For the opposite parties: Sh.Sukhminder Singh, counsel for the opposite party No.1 Sh. Sandeep Bhagla, counsel for the opposite parties No.2&3. QUORUM Sh. George, President. Dr. Phulinder Preet, Member. Sh. Amarjeet Paul, Member. ORDER GEORGE, PRESIDENT:- 1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as ‘Act’) with the allegations against the opposite parties that he purchased on 20-2-2008 one Bolero Camper DI Long 2 WD CMVR from opposite party No.1 bearing engine and chasis No. 83a55774, Model 2008 as per sale Invoice No. 230 dt. 20-2-2008 and temporary No. PB-03-TEMP-P-0307 as a new brand vehicle. He took all the precutions and get all the services done well within specify time as prescribed, but the chasis of the said vehicle started rusting, he took the vehicle to opposite parties and shown the same to the technicians of opposite parties and he was told by them that chasis of the vehicle sold to him is not new rather the same is old and due to this reason, the rust is appearing and has damaged the vehicle at different points and therefore, he is entitled to get the vehicle replaced with a new one as the defect of rusting appears to be a manufacturing one. He has suffered on account of indulgence of opposite parties into unfair trade practice. He approached opposite parties and requested to do the needful, but his requests are not taken care of by opposite parties, as a result of which, he had to suffer harassment, humiliation and lot of botheration. He issued a legal notice dt. 23-12-2008 to opposite parties No.1 & 3 but despite legal notice, he was not provided with any relief. Due to the callous attitude of opposite parities, he has suffered mental tension, agony and financial loss, harassment and humiliation and is, therefore, entitled for reasonable and adequate amount of compensation to the tune of Rs. One lakh along with replacement with new vehicle and payment of adequate litigation expenses. 2. All the three opposite parties contested the allegations. Opposite party No.1 in reply raised objections qua locus standi non-joinder and mis-joinder of necessary party; complaint is not maintainable; complainant has not come with clean hand; he has filed the complaint on false, frivolous and vexatious facts; complaint is not maintainable before this Forum; opposite party had not given any guarantee and warranty against rusting of the vehicle; the condition of the vehicle depends upon actual usages of the vehicle; rusting of chassis of a vehicle cannot be termed as manufacturing defect; the alleged rusting of vehicle is not covered within the warranty as per the terms so stipulated in the service booklet; though, opposite party No.1 has in no way admitted that there is any warranty on deterioration of the body of the vehicle ; opposite party No. 1 only a dealer and is not responsible for any manufacturing defect; though, there is no manufacturing defect in the vehicle, but even then liability, if any, what so ever cannot be fastened on opposite party No.1 in this case; there is no deficiency in service on the part of opposite party No.1; the matter involved is technical in nature which can be decided only by Civil Court; the matter can be taken care of by an arbitrator as mentioned in the Job Card to resolve any dispute between complainant and opposite party No.1; complainant has already run the vehicle more than fifteen thousands kms and there being no alleged complaint raised on his part about rusting of the vehicle and as such the warranty stands waived and lapsed due to the Act and conduct of the complainant. The complainant has no cause of action; complainant has not brought on record any opinion of expert as regard the alleged allegations of rusting of the vehicle in respect of manufacturing defect of the chasis of the vehicle. 3. On merits also, opposite party No.1 while denying all the allegations of the complainant has reiterated all the points/facts referred to here-in-above. 4. Complainant in order to prove the allegations, filed his own two affidavits dt. 12.06.09 and dt. 22.09.09 Ex.C-14 and Ex.C-22, and also brought on record, copy of sale certificate Ex.C-1; copy of standard warranty page Nos. 13 &15 Ex.C-2; copy of temporary R.C. Ex.C-3; copies of retail Invoice Ex.C-4 to Ex.C-6; copy of Form No.22 Ex.C-7; copy of legal notice dt. 23.12.08 Ex.C-8; postal receipts Ex.C-9 to Ex.C-11; copy of A.D. Ex.C-12; copy of complaint Ex.C-13, and also brought on record, affidavits of Sh. Sukhmander Singh and Sh. Baldev Singh dt. 24.06.09 Ex.C-15 and Ex.C-17; copy of R.C. of Vehicle No. PB-03N/9070 Ex.C-16; copy of National Trade Certificate of Baldev Singh Ex.C-18; copy of certificate dt. 08.04.1996 Ex.C-19; copy of certificate dt. 21.12.2005 Ex.C-20; copy of Matriculation certificate Ex.C-21; Photographs Ex.C-23 to Ex.C-44 and copies of extended warranty Ex.C-45 to Ex.C-46, respectively. 5. To controvert the evidence of the complainant, opposite parties filed affidavits of Sh. Sanjiv Devjun, G.M., Sh. Deepak Sharma and Sh. Benny John, Deputy Manager Commercial dt. 21.07.09 Ex.R-1, Ex.R-10 and Ex.R-13, and also brought on record, copy of retail Invoice Ex.R-2; copy of Tax Invoice Ex.R-3; copies of Job Card Ex.R-4. Ex.R-6 and Ex.R-8; copies of satisfaction note Ex.R-5, Ex.R-7 and Ex.R-9; copy of detail Marks Card Ex.R-11 and copy of provisional certificate Ex.R-12, respectively. 6. We have heard the learned counsel for both the parties and perused the entire record of the case carefully. 7. It is an admitted fact that the learned counsel on behalf of complainant has vehemently urged that complainant purchased one Bolero Camper DI Long 2 WD CMVR, bearing engine and chassi No. 83a55774 Model 2008 as per sale Invoice No. 230 from opposite party No.1 on 20.02.2008, and he got the vehicle serviced as per the schedule. The vehicle was purchased by Sale Certificate Ex.C-1. He also urged that, within a period of 6-7 months of the purchase of the vehicle within the warranty period, its chassis started gave out of order, due to rust has eaten the said vehicle. The rust started eating the vehicle from various points of the chassi, this was brought to the notice of the opposite party No.1, and the vehicle was also got examined from the mechanics of opposite party No.1. The complainant was told that chassis of the vehicle is not a new one, and that due to this reason, the rust has appeared, and damaged the vehicle. The learned counsel further urged that he issued a legal notice to opposite party No.1 dated 23.12.2008 Ex.C-8, wherein the fact that the chassi of the vehicle is eaten up by the rust, brought to knowledge of opposite party No.1. Opposite party No.1 paid no heed to the legal notice, and therefore, the complainant had to file the present complaint. The learned counsel has taken us through the documents Ex.C-1 to Ex.C-13, and also Ex.C-16, Ex.C-18 to Ex.C-21, Ex.C-23 to Ex.C-46, and also affidavits of Sh. Rajinder Singh complainant Ex.C-14 and Ex.C-22, and also affidavits of Sh. Sukhmander Singh and Sh. Baldev Singh, who are examined as experts, their affidavits Ex.C-15 and Ex.C-17, respectively. Complainant has pleaded in his affidavit Ex.C-22 that he purchased the vehicle for his livelihood for his self-employment. This is an admitted fact that complainant is an retired Ex-Service man, and after his retirement, he purchased the said vehicle for his self-employment to earn livelihood, and he has no other source of income except his meagre figure, which is insufficient to maintain the expenditure of large family i.e. his wife and six children. The statement made by Sh. Sukhmander Singh in his affidavit Ex.C-15, and Sh. Baldev Singh in his affidavit Ex.C-17 has revealed that the said vehicle was examined by them, and they found mostly the entire chassi is eaten up by rust. It shows that the chassis of the vehicle is totally damaged by the rust. 8. The respondents in order to controvert the affidavits filed on behalf of the complainant Ex.C-15 and Ex.C-17, examined Sh. Deepak Sharma, who is working as Service Manager of opposite party No.1, and he filed his affidavit Ex.R-10. According to him, he examined the vehicle on three occasions, when the vehicle was brought by the complainant for service, and he had supervised the said services of the vehicle personally. There was no rusting in the vehicle, and complainant signed the Job Sheets on all the three occasions, showing his full satisfaction with the vehicle. The chassi of the vehicle was free from rusting, at the time of servicing of the vehicle. Meaning thereby, the claim of the complainant is that the chassi of the vehicle damaged, due to rusting, which is duly supported by the affidavit of Sh. Sukhmander Singh Ex.C-15 as well as affidavit of Sh. Baldev Singh Ex.C-17, but denied on behalf of the opposite parties as their Works Manager has filed affidavit Ex.R-10 that the chassi of the vehicle was not damaged due to rusting, when he examined the same. 9. The question remained, as to whether in fact, the chassi of the vehicle damaged, due to rusting, or not. To prove this fact, complainant moved an application before the Forum to examine the vehicle, and that this application was allowed, and the vehicle was examined by the Forum in presence of learned counsel for the parties. 10. The complainant in order to prove the rusting conditions of the chassis of the vehicle brought on record, the latest photographs of the vehicle Ex.C-23 to Ex.C-44. These photographs speak out the true position of the vehicle, as it shows apparently that the chassis of the vehicle is being eaten up by the rust, and as damaged badly. 11. Opposite parties were not ready to except the version of the complainant, and their learned counsel for opposite parties moved an application for examination of the vehicle by an independent expert. In order to afford, both the parties reasonable opportunity to lead evidence. Accordingly, the application was allowed, and Works Manager of Tara Automobiles, Bathinda, was appointed as Local Commissioner vide letter dated 13.10.2009 to examine the vehicle in Maruti Workshop in presence of both the parties on 15.10.2009 at 4 P.M., and Works Manager of Tara Automobiles was directed to submit his report before the Forum on 20.10.2009. The local Commissioner, Works Manager of Tara Automobiles filed his report before the Forum on the date fixed, as the vehicle was examined by him, in the presence of the parties and their counsel on 15.10.2009. A memo to this effect, also filed alongwith his report dated 19.10.2009. Sh. G.S. Sekhon, Works Manager of Tara Automobiles, Bathinda, in his report examined as under: “As per instruction, where in, he inspected the vehicle in the workshop of Tara Automobiles, (Authorized Maruti Suzuki Dealer) workshop in the presence of both the parties & their counsels. Kilometer reading of the vehicle at the time of inspection was 58578 KM. The chassis no. of the vehicle checked & got it tallied with the Chassis no. mentioned in the aforesaid letter which is same. But however, the identification place which contains chassis & engine no. is not fixed/riveted, as per the manufacturing norms. It is screwed on the body of the vehicle & creates the confusion about its authenticity. The chassis no. punched on the frame of the vehicle confirm that the vehicle is manufacturing of year 2008. The front wind shield fitted in the vehicle is stamped 2007 Model & the quarter glasses of both the rear door of the vehicle stamped 2006 Model. Vehicle also got rusted badly it may be due to poor quality of paint & metal sheet used for the body.” This report is also contested by learned counsel for opposite parties, and filed objections that the quarter glasses showing the stamp to 2007 Model, and 2006 Model, even to replace at the later stage, and the report is not authentic. 12. We have taken into consideration, the entire record of the case carefully. The rusting of the chassi is visual from naked eye, and thus there remains no doubt that the chassi of the vehicle has been eaten up, due to rust, which may be due to poor quality of paint & metal sheet used for the body, and if the poor quality metal sheet used for the body, it is nothing, but the manufacturing defect, and as such, opposite parties can not escape their liability by raising the plea that as per their Warranty Card Ex.C-2, opposite parties are not responsible for any defect in the metal. The condition of this kind in the warranty means to be unfair trade practice, and opposite parties can not escape their liability or responsibility by using the poor quality sheet in the manufacturing body plate of the vehicle. The vehicle as per visual inspection as well as the report of Sh. G.S. Sekhon, Works Manager of Tara Automobiles, Bathinda, the photographs Ex.C-23 to Ex.C-44, and also an affidavits brought on record of Sh. Sukhmander Singh Ex.C-15 as well as affidavit of Sh. Baldev Singh Ex.C-17 definitely controvert the affidavit filed on behalf of opposite parties by Sh. Deepak Sharma Ex.R-10. 13. The observations made by Sh. G.S. Sekhon in his report that the identification plate, which contains chassis & engine no. is not fixed/riveted as per the manufacturing norms. It is screwed found on the body of the vehicle & creates the confusion about its authenticity. It is a serious flaw, which remained unexplained by the opposite parties, as to why the identification plate contain chassis & engine no. is not fixed/riveted as per the manufacturing norms, and under what circumstances, the identification plate was screwed on the body of the vehicle, which leaves un rebutable inference that the chassi and the engine of the vehicle were some how interfered that either by the manufacturer or by the dealer, before the vehicle was sold, and possession was delivered to the complainant. 14. The learned counsel appearing on behalf of opposite parties have urged that the vehicle is commercial in nature, and it has been purchased by complainant for commercial use, and therefore, complainant does not fall within meaning of consumer, and Consumer Forum has no jurisdiction to take cognizance of the complaint. We have considered the arguments. The complainant is admittedly a retired Ex-Service man, and he has purchased the vehicle for earning his livelihood by self-employment, and he is driving the same himself. To this effect, he also filed his affidavit Ex.C-22. Thus, buyer of goods or commodities for “self consumption” in economic activities in which they are engaged would be consumers as defined in the Act. Similar view has been taken by Hon’ble The Supreme Court of India in case Madan Kumar Singh (D) through Legal Representative Vs. District Magistrate, Sultanpur and others, 2009 CTJ 1108 (S.C.) (CP). The Hon’ble Supreme Court of India has further held that “the purchase of the truck by the appellant would also be covered under Explanation to Section 2(1) (d) of the Act. The appellant had mentioned categorically that he had bought the said truck to be used exclusively by him, for the purpose of earning his livelihood, by means of self-employment. Even if he was to employ a driver for running the truck aforesaid, it would not have changed the matter in any case, as even then appellant would have continued to earn his livelihood from it and of course, by means of self-employment. Furthermore, there is nothing on record to show that he wanted to use the truck for any commercial purpose.” 15. In the case of the complainant, he has specifically stated in his affidavit Ex.C-22 that he has purchased the vehicle to be used for earning his livelihood by self-employment for himself and his family members. No evidence has been brought on the record contrary to this, on behalf of any of the opposite parties, and accordingly, we conclude that the purchase of the vehicle by the complainant would be covered under Explanation to Section 2 (1) (d) of the Act, and this Forum has jurisdiction to entertain the complaint and decide the same. 16. Accordingly, we allow the complaint, and direct opposite parties as under:- (i) Opposite parties shall be responsible for replacement of the vehicle with a new one, with same model, with full warranty period, or in the alternative, refund of the full cost price of the vehicle i.e. Rs. 4,84,000/- alongwith interest @ 9% P.A., from the date of purchase of the vehicle, till the entire cost price & interest is paid on replacement or payment of cost price etc. as referred in above, and the complainant shall handover the old vehicle to opposite parties. (ii) Opposite parties shall also pay compensation to the tune of Rs. 1,00,000/- to the complainant, on account of mental tension, agony, harassment, and inconvenience , he has suffered, due to unfair trade practice, and selling vehicle as new one, with a chassis and engine manufactured with low quality material, by opposite parties. (iii) Opposite parties shall also liable to pay litigation expenses to the tune of Rs. 10,000/-. 17. The compliance of this order be made within 45 days from the date of receipt of copy of this order. 18. The copy of this order be sent to the parties concerned free of cost, and file be indexed and consigned. Pronounced (GEORGE) 13.11.2009 PRESIDENT (DR. PHULINDER PREET) MEMBER (AMARJEET PAUL) MEMBER

    DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB) CC.No.33 of 03-02-2009 Decided on: 13.11.2009 Rajinder Singh son of Sh. Jangir Singh, resident of near Bus Stand, Bhagta Bhai Ka, Distt. Bathinda. ……….Complainant. Versus 1. Imperial Motors, G.T. Road, Bathinda, through its prop./partner/Manager. 2. Mahindra & Mahindra Ltd., Zaheerabad 502 200 Distt. Medak (AP), through its Managing Director/Director. 3. Mahindra & Mahindra Ltd., Registered office Gateway Building Appollo Bunder, Mumbai, through its Managing Director/Director/Manager. ………….Opposite parties. Complaint under section 12 of the Consumer Protection Act,1986. Present:- For the complainant : Sh. G.S.Sidhu, counsel for the complainant and also complainant in person. For the opposite parties: Sh.Sukhminder Singh, counsel for the opposite party No.1 Sh. Sandeep Bhagla, counsel for the opposite parties No.2&3. QUORUM Sh. George, President. Dr. Phulinder Preet, Member. Sh. Amarjeet Paul, Member. ORDER GEORGE, PRESIDENT:- 1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as ‘Act’) with the allegations against the opposite parties that he purchased on 20-2-2008 one Bolero Camper DI Long 2 WD CMVR from opposite party No.1 bearing engine and chasis No. 83a55774, Model 2008 as per sale Invoice No. 230 dt. 20-2-2008 and temporary No. PB-03-TEMP-P-0307 as a new brand vehicle. He took all the precutions and get all the services done well within specify time as prescribed, but the chasis of the said vehicle started rusting, he took the vehicle to opposite parties and shown the same to the technicians of opposite parties and he was told by them that chasis of the vehicle sold to him is not new rather the same is old and due to this reason, the rust is appearing and has damaged the vehicle at different points and therefore, he is entitled to get the vehicle replaced with a new one as the defect of rusting appears to be a manufacturing one. He has suffered on account of indulgence of opposite parties into unfair trade practice. He approached opposite parties and requested to do the needful, but his requests are not taken care of by opposite parties, as a result of which, he had to suffer harassment, humiliation and lot of botheration. He issued a legal notice dt. 23-12-2008 to opposite parties No.1 & 3 but despite legal notice, he was not provided with any relief. Due to the callous attitude of opposite parities, he has suffered mental tension, agony and financial loss, harassment and humiliation and is, therefore, entitled for reasonable and adequate amount of compensation to the tune of Rs. One lakh along with replacement with new vehicle and payment of adequate litigation expenses. 2. All the three opposite parties contested the allegations. Opposite party No.1 in reply raised objections qua locus standi non-joinder and mis-joinder of necessary party; complaint is not maintainable; complainant has not come with clean hand; he has filed the complaint on false, frivolous and vexatious facts; complaint is not maintainable before this Forum; opposite party had not given any guarantee and warranty against rusting of the vehicle; the condition of the vehicle depends upon actual usages of the vehicle; rusting of chassis of a vehicle cannot be termed as manufacturing defect; the alleged rusting of vehicle is not covered within the warranty as per the terms so stipulated in the service booklet; though, opposite party No.1 has in no way admitted that there is any warranty on deterioration of the body of the vehicle ; opposite party No. 1 only a dealer and is not responsible for any manufacturing defect; though, there is no manufacturing defect in the vehicle, but even then liability, if any, what so ever cannot be fastened on opposite party No.1 in this case; there is no deficiency in service on the part of opposite party No.1; the matter involved is technical in nature which can be decided only by Civil Court; the matter can be taken care of by an arbitrator as mentioned in the Job Card to resolve any dispute between complainant and opposite party No.1; complainant has already run the vehicle more than fifteen thousands kms and there being no alleged complaint raised on his part about rusting of the vehicle and as such the warranty stands waived and lapsed due to the Act and conduct of the complainant. The complainant has no cause of action; complainant has not brought on record any opinion of expert as regard the alleged allegations of rusting of the vehicle in respect of manufacturing defect of the chasis of the vehicle. 3. On merits also, opposite party No.1 while denying all the allegations of the complainant has reiterated all the points/facts referred to here-in-above. 4. Complainant in order to prove the allegations, filed his own two affidavits dt. 12.06.09 and dt. 22.09.09 Ex.C-14 and Ex.C-22, and also brought on record, copy of sale certificate Ex.C-1; copy of standard warranty page Nos. 13 &15 Ex.C-2; copy of temporary R.C. Ex.C-3; copies of retail Invoice Ex.C-4 to Ex.C-6; copy of Form No.22 Ex.C-7; copy of legal notice dt. 23.12.08 Ex.C-8; postal receipts Ex.C-9 to Ex.C-11; copy of A.D. Ex.C-12; copy of complaint Ex.C-13, and also brought on record, affidavits of Sh. Sukhmander Singh and Sh. Baldev Singh dt. 24.06.09 Ex.C-15 and Ex.C-17; copy of R.C. of Vehicle No. PB-03N/9070 Ex.C-16; copy of National Trade Certificate of Baldev Singh Ex.C-18; copy of certificate dt. 08.04.1996 Ex.C-19; copy of certificate dt. 21.12.2005 Ex.C-20; copy of Matriculation certificate Ex.C-21; Photographs Ex.C-23 to Ex.C-44 and copies of extended warranty Ex.C-45 to Ex.C-46, respectively. 5. To controvert the evidence of the complainant, opposite parties filed affidavits of Sh. Sanjiv Devjun, G.M., Sh. Deepak Sharma and Sh. Benny John, Deputy Manager Commercial dt. 21.07.09 Ex.R-1, Ex.R-10 and Ex.R-13, and also brought on record, copy of retail Invoice Ex.R-2; copy of Tax Invoice Ex.R-3; copies of Job Card Ex.R-4. Ex.R-6 and Ex.R-8; copies of satisfaction note Ex.R-5, Ex.R-7 and Ex.R-9; copy of detail Marks Card Ex.R-11 and copy of provisional certificate Ex.R-12, respectively. 6. We have heard the learned counsel for both the parties and perused the entire record of the case carefully. 7. It is an admitted fact that the learned counsel on behalf of complainant has vehemently urged that complainant purchased one Bolero Camper DI Long 2 WD CMVR, bearing engine and chassi No. 83a55774 Model 2008 as per sale Invoice No. 230 from opposite party No.1 on 20.02.2008, and he got the vehicle serviced as per the schedule. The vehicle was purchased by Sale Certificate Ex.C-1. He also urged that, within a period of 6-7 months of the purchase of the vehicle within the warranty period, its chassis started gave out of order, due to rust has eaten the said vehicle. The rust started eating the vehicle from various points of the chassi, this was brought to the notice of the opposite party No.1, and the vehicle was also got examined from the mechanics of opposite party No.1. The complainant was told that chassis of the vehicle is not a new one, and that due to this reason, the rust has appeared, and damaged the vehicle. The learned counsel further urged that he issued a legal notice to opposite party No.1 dated 23.12.2008 Ex.C-8, wherein the fact that the chassi of the vehicle is eaten up by the rust, brought to knowledge of opposite party No.1. Opposite party No.1 paid no heed to the legal notice, and therefore, the complainant had to file the present complaint. The learned counsel has taken us through the documents Ex.C-1 to Ex.C-13, and also Ex.C-16, Ex.C-18 to Ex.C-21, Ex.C-23 to Ex.C-46, and also affidavits of Sh. Rajinder Singh complainant Ex.C-14 and Ex.C-22, and also affidavits of Sh. Sukhmander Singh and Sh. Baldev Singh, who are examined as experts, their affidavits Ex.C-15 and Ex.C-17, respectively. Complainant has pleaded in his affidavit Ex.C-22 that he purchased the vehicle for his livelihood for his self-employment. This is an admitted fact that complainant is an retired Ex-Service man, and after his retirement, he purchased the said vehicle for his self-employment to earn livelihood, and he has no other source of income except his meagre figure, which is insufficient to maintain the expenditure of large family i.e. his wife and six children. The statement made by Sh. Sukhmander Singh in his affidavit Ex.C-15, and Sh. Baldev Singh in his affidavit Ex.C-17 has revealed that the said vehicle was examined by them, and they found mostly the entire chassi is eaten up by rust. It shows that the chassis of the vehicle is totally damaged by the rust. 8. The respondents in order to controvert the affidavits filed on behalf of the complainant Ex.C-15 and Ex.C-17, examined Sh. Deepak Sharma, who is working as Service Manager of opposite party No.1, and he filed his affidavit Ex.R-10. According to him, he examined the vehicle on three occasions, when the vehicle was brought by the complainant for service, and he had supervised the said services of the vehicle personally. There was no rusting in the vehicle, and complainant signed the Job Sheets on all the three occasions, showing his full satisfaction with the vehicle. The chassi of the vehicle was free from rusting, at the time of servicing of the vehicle. Meaning thereby, the claim of the complainant is that the chassi of the vehicle damaged, due to rusting, which is duly supported by the affidavit of Sh. Sukhmander Singh Ex.C-15 as well as affidavit of Sh. Baldev Singh Ex.C-17, but denied on behalf of the opposite parties as their Works Manager has filed affidavit Ex.R-10 that the chassi of the vehicle was not damaged due to rusting, when he examined the same. 9. The question remained, as to whether in fact, the chassi of the vehicle damaged, due to rusting, or not. To prove this fact, complainant moved an application before the Forum to examine the vehicle, and that this application was allowed, and the vehicle was examined by the Forum in presence of learned counsel for the parties. 10. The complainant in order to prove the rusting conditions of the chassis of the vehicle brought on record, the latest photographs of the vehicle Ex.C-23 to Ex.C-44. These photographs speak out the true position of the vehicle, as it shows apparently that the chassis of the vehicle is being eaten up by the rust, and as damaged badly. 11. Opposite parties were not ready to except the version of the complainant, and their learned counsel for opposite parties moved an application for examination of the vehicle by an independent expert. In order to afford, both the parties reasonable opportunity to lead evidence. Accordingly, the application was allowed, and Works Manager of Tara Automobiles, Bathinda, was appointed as Local Commissioner vide letter dated 13.10.2009 to examine the vehicle in Maruti Workshop in presence of both the parties on 15.10.2009 at 4 P.M., and Works Manager of Tara Automobiles was directed to submit his report before the Forum on 20.10.2009. The local Commissioner, Works Manager of Tara Automobiles filed his report before the Forum on the date fixed, as the vehicle was examined by him, in the presence of the parties and their counsel on 15.10.2009. A memo to this effect, also filed alongwith his report dated 19.10.2009. Sh. G.S. Sekhon, Works Manager of Tara Automobiles, Bathinda, in his report examined as under: “As per instruction, where in, he inspected the vehicle in the workshop of Tara Automobiles, (Authorized Maruti Suzuki Dealer) workshop in the presence of both the parties & their counsels. Kilometer reading of the vehicle at the time of inspection was 58578 KM. The chassis no. of the vehicle checked & got it tallied with the Chassis no. mentioned in the aforesaid letter which is same. But however, the identification place which contains chassis & engine no. is not fixed/riveted, as per the manufacturing norms. It is screwed on the body of the vehicle & creates the confusion about its authenticity. The chassis no. punched on the frame of the vehicle confirm that the vehicle is manufacturing of year 2008. The front wind shield fitted in the vehicle is stamped 2007 Model & the quarter glasses of both the rear door of the vehicle stamped 2006 Model. Vehicle also got rusted badly it may be due to poor quality of paint & metal sheet used for the body.” This report is also contested by learned counsel for opposite parties, and filed objections that the quarter glasses showing the stamp to 2007 Model, and 2006 Model, even to replace at the later stage, and the report is not authentic. 12. We have taken into consideration, the entire record of the case carefully. The rusting of the chassi is visual from naked eye, and thus there remains no doubt that the chassi of the vehicle has been eaten up, due to rust, which may be due to poor quality of paint & metal sheet used for the body, and if the poor quality metal sheet used for the body, it is nothing, but the manufacturing defect, and as such, opposite parties can not escape their liability by raising the plea that as per their Warranty Card Ex.C-2, opposite parties are not responsible for any defect in the metal. The condition of this kind in the warranty means to be unfair trade practice, and opposite parties can not escape their liability or responsibility by using the poor quality sheet in the manufacturing body plate of the vehicle. The vehicle as per visual inspection as well as the report of Sh. G.S. Sekhon, Works Manager of Tara Automobiles, Bathinda, the photographs Ex.C-23 to Ex.C-44, and also an affidavits brought on record of Sh. Sukhmander Singh Ex.C-15 as well as affidavit of Sh. Baldev Singh Ex.C-17 definitely controvert the affidavit filed on behalf of opposite parties by Sh. Deepak Sharma Ex.R-10. 13. The observations made by Sh. G.S. Sekhon in his report that the identification plate, which contains chassis & engine no. is not fixed/riveted as per the manufacturing norms. It is screwed found on the body of the vehicle & creates the confusion about its authenticity. It is a serious flaw, which remained unexplained by the opposite parties, as to why the identification plate contain chassis & engine no. is not fixed/riveted as per the manufacturing norms, and under what circumstances, the identification plate was screwed on the body of the vehicle, which leaves un rebutable inference that the chassi and the engine of the vehicle were some how interfered that either by the manufacturer or by the dealer, before the vehicle was sold, and possession was delivered to the complainant. 14. The learned counsel appearing on behalf of opposite parties have urged that the vehicle is commercial in nature, and it has been purchased by complainant for commercial use, and therefore, complainant does not fall within meaning of consumer, and Consumer Forum has no jurisdiction to take cognizance of the complaint. We have considered the arguments. The complainant is admittedly a retired Ex-Service man, and he has purchased the vehicle for earning his livelihood by self-employment, and he is driving the same himself. To this effect, he also filed his affidavit Ex.C-22. Thus, buyer of goods or commodities for “self consumption” in economic activities in which they are engaged would be consumers as defined in the Act. Similar view has been taken by Hon’ble The Supreme Court of India in case Madan Kumar Singh (D) through Legal Representative Vs. District Magistrate, Sultanpur and others, 2009 CTJ 1108 (S.C.) (CP). The Hon’ble Supreme Court of India has further held that “the purchase of the truck by the appellant would also be covered under Explanation to Section 2(1) (d) of the Act. The appellant had mentioned categorically that he had bought the said truck to be used exclusively by him, for the purpose of earning his livelihood, by means of self-employment. Even if he was to employ a driver for running the truck aforesaid, it would not have changed the matter in any case, as even then appellant would have continued to earn his livelihood from it and of course, by means of self-employment. Furthermore, there is nothing on record to show that he wanted to use the truck for any commercial purpose.” 15. In the case of the complainant, he has specifically stated in his affidavit Ex.C-22 that he has purchased the vehicle to be used for earning his livelihood by self-employment for himself and his family members. No evidence has been brought on the record contrary to this, on behalf of any of the opposite parties, and accordingly, we conclude that the purchase of the vehicle by the complainant would be covered under Explanation to Section 2 (1) (d) of the Act, and this Forum has jurisdiction to entertain the complaint and decide the same. 16. Accordingly, we allow the complaint, and direct opposite parties as under:- (i) Opposite parties shall be responsible for replacement of the vehicle with a new one, with same model, with full warranty period, or in the alternative, refund of the full cost price of the vehicle i.e. Rs. 4,84,000/- alongwith interest @ 9% P.A., from the date of purchase of the vehicle, till the entire cost price & interest is paid on replacement or payment of cost price etc. as referred in above, and the complainant shall handover the old vehicle to opposite parties. (ii) Opposite parties shall also pay compensation to the tune of Rs. 1,00,000/- to the complainant, on account of mental tension, agony, harassment, and inconvenience , he has suffered, due to unfair trade practice, and selling vehicle as new one, with a chassis and engine manufactured with low quality material, by opposite parties. (iii) Opposite parties shall also liable to pay litigation expenses to the tune of Rs. 10,000/-. 17. The compliance of this order be made within 45 days from the date of receipt of copy of this order. 18. The copy of this order be sent to the parties concerned free of cost, and file be indexed and consigned. Pronounced (GEORGE) 13.11.2009 PRESIDENT (DR. PHULINDER PREET) MEMBER (AMARJEET PAUL) MEMBER
  • adv.singhadv.singh Senior Member
    edited February 2010
    Dt.of filing :24-03-2009

    Date of receipt of notice by OP’s: 1. 02.04.2009.

    2. 02.04.2009.

    3. Not known.(Returned)

    4. 30.03.2009.
    PRESENT : SRI. M.S.HEGDE NAGRE, PRESIDENT., M.A, L.L.B.,(Spl).

    SRI.K.S.PRASAD.B.COM., L.L.B., MEMBER.

    SMT.A.S.HEMALATHA, M.Com., LLB., MEMBER.


    C.C.29/2009
    COMPLAINANT:

    The Deputy Conservator

    Of Forest, Department of Forest,

    Government of Karnataka,

    Aranya Bhavan, Mysore Road,

    Madikeri, Rep:by Range Forest

    Officer, Kushalnagar Range,

    Kushalnagar, Somwarpet Taluk,

    Kodagu District.

    (By Sri.C.S.Ranjith, Advocate)



    V/S


    OPPOSITE PARTY/IES
    1. M/S Mahindra and Mahindra Ltd.,

    Auto Motive Section, Mahindra

    Nagar, Zaheerabad-502220,

    Medak District, Andra Pradesh

    State.



    2. M/S Mahindra and Mahindra Ltd.,

    Auto Motive Section, Raheja Chambers,

    Floor, #.109, #.12, Museum Road,

    Bangalore-560001.


    3. The Manager, M/S India Garage, Hessargatta,

    Bangalore.

    4. The Manager, M/S India Garage,

    Temple Road, Madikeri.

    (By Sri.C.M.Meddappa, Advocate)



    O R D E R



    The Complainant herein got registered the instant complaint against the Opposite Parties after obtaining necessary sanction, by invoking section 12 of Consumer Protection Act 1986 (herein referred short as the ‘Act’)



    The averments of the Complaint in brief are that the Complainant since purchased a Jeep bearing Chasis No:MAIMB 4GFK73A40413 and Engine NO:GF74A55666 which was bearing registration NO:KA-12 G-473 on 13.02.2007 (herein after referred to as the Jeep) for the office use of Range Forest Office, Kushalnagar from the Opposite Parties by paying its prevailing market price, has become the consumer and that the said Jeep was having manufacturing defects from the date of taking delivery and thereby it was not road worthy condition and that the Complainant has brought the said defects in the Jeep to the notice of the Opposite Parties and in this regard he has written letters dtd:06-12-2007 on wards and further requested the first Opposite Party to replace the Jeep as per letter dtd:22-12-2007 and that the first Opposite party has agreed for the same as per letter dated:08-01-2008 as well as dtd:06-03-2008 with a request to leave the said Jeep with 3rd Opposite Party and that even on taking delivery on 24-05-2008, the said Jeep was not road worthy condition as it suffered with manufacturing defects and that the office of Complainant has suffered a heavy loss due to mechanical defects in the said Jeep and deficiency in service on the part of the Opposite Parties and hence, the Complainant has filed this Complaint against the Opposite Parties requesting to direct the Opposite Parties to supply the defect free vehicle or to refund the value of the said Jeep paid with compensation and costs in the interest of justice and equity.



    2. The version notice of this case was duly served on the Opposite Parties. Responding to the same the Opposite Parties have appeared through the advocate and filed the objections contending interalia that the Complainant in the instant case was not having authority to file the Complaint and that the fact that Jeep in question was purchased on 08-02-2007 and registered on 13.02.2007 the Complainant has brought to the notice of respondents about the defects in the said Jeep only on 22.12.2007, after using the said Jeep but not earlier to that including at the time of free service and checkup and that the Opposite Parties have duly attended to all the defects pointed out by the Complainant or his representatives when the Jeep was sent for service and checkup and that averments under para 3 to 6 of the Complaint are denied and that there was no deficiency in service on the part of the Opposite Parties with regard to the said Jeep of the Complainant and that in view of the terms and conditions of the warranty pertaining to the said Jeep, the Complaint was not maintainable and that there was no cause of action for the Complainant to file the Complaint and that the Complaint is barred by limitation and hence, among other grounds it was requested to dismiss the Complaint with costs.



    3. In the meantime by virtue of IA dtd:20.05.2009 filed by the Complainant read with memo a Commissioner was appointed to inspect the Jeep and to report. Accordingly in pursuance of the commission warrant issued, the commissioner has inspected the Jeep and reported on 17.07.2007 mentioning about certain defects in the Jeep and that there after certain major defects in the Jeep stated to have been repaired/rectified as per his second report dtd:13.10.2009. In the meantime the both parties have filed a joint memo of settlement on 26.08.2009. However, both the parties have requested to keep the said joint memo pending and then one M.S.Chinnappa, RFO, for the Complainant and one Mohan Mutthanna Manager of Opposite Party No:4 have filed affidavit in consonance with their respective stand. Heard the arguments submitted by both the sides and then posted case for orders.



    4. On the basis of the above, following issues will arise for determination.
    1. Whether there was deficiency in service on the part of the Opposite Parties in not repairing/setting right the defects in the Jeep in question to make it on road worthy condition?

    2. What order?

    REASONS

    5. There is no dispute, that the Jeep in question was manufactured and sold by Opposite Parties 1 & 2 and the same has been purchased by Complainant from Opposite Party No:3 and Opposite Party No:4 i.e. authorized dealers of Opposite Party 1 & 2 as such the Complainant become the RC Owner of the Jeep with effect from 13.02.2007 (A copy of the RC Produced). Further, it is an admitted fact that the Complainant has used the said Jeep to certain extent but found certain manufacturing defects in the said Jeep and intimated the same to the Opposite Parties through his letter dtd:06.12.2007 and then again on 22.12.2007 and left the vehicle with Opposite Party No:3 as per the intimation received from Opposite Parties and reported to the same to the concern on 23.12.2007. Further, the fact that the Complainant has written several letters to the Opposite Parties as can be seen from the copies of the same dtd:1-01-08, 10-1-2008 1-2-08, 3-3-08 29-3-08

    2 4

    22-4-08, 25-5-08 & 07-6-08. Like wise, the Opposite Parties have responded to the same through their letter dtd:08-1-08 agreeing/promising to replace the entire body shell under goodwill FOC basis and the remaining running complaints will be solved by their dealers and further letters are dtd:06.03.2008, 11.02.2008 and 17.03.2008. So, it is evident from the above that the Complainant had brought to the notice of Opposite Parties about the defects in the said Jeep and its unroad worthy condition. It is much stressed by the learned advocate for Opposite Parties that the first intimation by Complainant complaining about the defects in the Jeep was only after the lapse of warranty period of 180 days from the date of the purchase. But, when the Opposite Parties through their letters noted above have assured/promised the Complainant for rectifying the defects in the said Jeep as well as they gone a step ahead to join the Complainant in filing the joint memo in the instant case, will make it clear that the Opposite Parties have waived the said warranty condition of 180 days from the date of the purchase of the said Jeep as rightly submitted by the learned advocate for Complainant.



    6. Now, coming to the crux of the matter about the setting right of the defects in the said Jeep of the Complainant by Opposite Parties. Admittedly the Complainant has already used the Jeep for months together (As the Odometer recording was 84601 Km’s at the time the first inspection by the commissioner appointed) who found several defects and over all the Jeep was found to be not in road worthy condition. Further, the Opposite Parties have carried out the repairs/replacement of certain parts of the said Jeep to make the same as defect free as can be seen from the second report of the commissioner dtd:13.10.2009 stating that certain major defects earlier found in the said Jeep are rectified / repaired except cracks in the Mudguards, bumpers not repaired rusty foot boards on both sides not replaced etc. No doubt, the said second report of the commissioner was opposed by the Complainant by filing objection. Any way, there is nothing on the records to substantiate the stand taken in the objection of the Complainant to the second Commission report. Therefore, one thing is certain that the said Jeep in question was having material defects which made the same non road worthy condition. However, such defects were noticed by the Complainant only on or after 06.12.07. It is also pertinent to note that still certain repairs to be carried out by the Opposite Parties to make it as defect free as highlighted by the commissioner in his second report dtd:13.10.2009. Therefore, selling of said Jeep by the Opposite Parties to the customer like Complainant or to make delay or not responding to the request of the customer properly and in time, certainly amounts to deficiency in service. Hence, we answer this issue in the affirmative.



    7. The Complainant since established that there was deficiency in service on the part of the Opposite Parties in selling the said jeep in question as well as not rectifying or repairing the same to make it a defect free Jeep by replacing the best suited new parts make this Forum to determine the same as serious aspects. However, the Opposite Parties have carried out the repairs to the major parts based on the Complaint of the Complainant. Therefore, we find it just and appropriate to direct the Opposite Parties to carry out the rest of repairs by replacing best suited new parts, necessary to the said Jeep to make it road worthy condition/defect free, within a period of 20 days from the date of this order or from the date of the handing over the jeep by the Complainant to the nearest Opposite Parties, as the case may be. More over, the deficiency in service on the part of the Opposite Parties have certainly made the office of the Complaint to suffer in the day today function due to unroad worthy condition of the Jeep due to which it hampered the turnover of the office work and in discharge of the official duties of the officials/officers for months together. Keeping in mind all these, we are of the considered view that the Opposite Parties jointly and severally shall liable to pay a sum of Rs.50,000/- towards just compensation to the Complainant. Like wise the deficiency in service on the part of the Opposite Parties made the Complaint for adjudication and as well as Complainant happened to get appointed the Commissioner at his cost and hence, for all these sufferings and expenses met by the Complainant and his office, we direct the Opposite Parties to pay a sum of Rs.5,000/- towards costs of this proceedings payable to the Complainant. The payable amount under this Order shall carry future interest at the rate of 10%. P.a.



    In view of the forging paras, we proceed to pass the following order.



    ORDER



    The Complaint filed by the Complainant is allowed in part with cost of Rs.5,000/-.



    The Opposite Parties are hereby directed to repair the said Jeep bearing register No:KA-12 G-473 of the Complainant by rectifying the defects shown in the second report of the commissioner dtd:13.10.2009 by repairing/replacing the best suited new parts to the said Jeep within a period of 20 days from this date or within 20 days from the date of handing over the said Jeep to the nearest Opposite Party by the Complainant, as the case may be. Further, the Opposite parties jointly and severally shall pay a sum of Rs.50,000/- to the complainant towards compensation.

    The payable amount under this order shall carry future interest at the rate of 10% p.a. from the date of Complaint till realization.

    The compliance of this order pertaining to the payment shall be within a period of 60 days from the date of communication of this order.

    Communicate the order to the parties.
    (Dictated to the stenographer and got it transcribed and corrected and pronounced in the open Forum on this 24th day of November 2009).
  • adv.singhadv.singh Senior Member
    edited February 2010
    C.C.No.355 of 2006
    BETWEEN:

    Kotapati Atchaiah,

    S/o. Kotaiah,

    R/o. Grandhasiri Village,

    Atchampet Mandal, Guntur District.



    C/o. Kondaveeti Raju, Advocate,

    Flat No.403, Rambha Apartment,

    7/2, Chandramouli Nagar,

    Guntur. … Complainant

    AND

    1. The Dealer,

    Modern Agro Industries,

    Tractors Division,

    D.No.8-24-61, Mangalagiri Road,

    Gaddipadu, Guntur – 522 001.

    2. Mahindra & Mahindra Limited,

    Rep. by its Authorized Person,

    Mahindra Towers,

    Worli Road No.13,

    Worli, Mumbai – 400 018.

    3. Mahindra Finance,

    Rep. by its Manager,

    2nd floor, Sadhana House,

    570, P.B.Marg,

    Worli, Mumbai – 400 018. … Opposite parties

    This complaint coming up before us for final hearing on 25-01-10 in the presence of Sri K.Raju, Advocate for complainant and of Sri N.Jimbo, Advocate for OPs 1&2, Sri D.S.R.Krishna Murthy, Advocate for OP3, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

    O R D E R

    Per Sri T.ANJANYULU, PRESIDENT:

    This complaint is filed under section 12 of Consumer Protection Act, 1986 seeking directions on the opposite parties to take back the tractor purchased by him and substitute the same with new one in good condition or to refund the value of same and also pay compensation of Rs.50,000/-.

    The brief facts of the case are that

    The complainant has requirement to purchase tractor for his agricultural purpose, as such he has approached the 1st opposite party. The 1st opposite party who is a dealer of tractor of Mahindra and Mahindra Limited carrying on business under the name and style Modern Agro Industries Tractors Division impressed upon the complainant to purchase a tractor manufactured by Mahindra and Mahindra Limited. Believing the words, the complainant purchased the tractor having chasis No.NCTW 1400, engine No.NCTW 1400, makers class-475-DI(S), Red colour by paying an advance of Rs.50,000/- vide receipt No.12 on 07-02-05. Subsequently he has paid sum of Rs.20,000/- vide receipt No.43 on 08-07-05 whereas the 3rd opposite party provided finance after six months of purchase of tractor. Thereafter, the complainant had paid installments regularly without default.

    Three months after purchase, the complainant faced repairs to his tractor. Due to which his agricultural operations were disturbed and sustained heavy loss besides mental agony. There are so many problems in the engine of tractor. The 1st opposite party did not affect proper repairs. The complainant made requests several times to 1st opposite party to change entire engine of tractor or to change the tractor itself. The 1st opposite party did not respond for the same. The complainant also wrote letters to 2nd opposite party informing the problem faced by him in purchasing the tractor of their company. Service Engineers of tractor, who came from Bangalore on the intimation of complainant, also gave evasive replies in respect of trouble of tractor. They are not skilled engineers. The tractor is not useful to the complainant till this day. He is wasting money by spending on tractor and also agricultural operations. Thus he sustained heavy loss in his cultivation. The battery and radiator of tractor are also not functioning properly. Due to deficiency of service of opposite parties the complainant suffering mentally, physically and also financially.

    At last the complainant got issued notice on 27-09-06 requesting the opposite parties to take back tractor and gave new tractor in good condition or to refund the value of same and also compensate the complainant towards mental agony caused to him. The opposite parties 1 and 2 received the same and gave reply on 03-10-06 with all false allegations. Hence, the complaint.

    The 1st opposite party has filed its version denying all the allegations made in the complaint. It raises the question of jurisdiction of Forum within the meaning of Sec. 2(i)(d) of the Act.

    However, submissions are that the complainant had purchased Mahindra Tractor 475D1 NST model from opposite parties. There are no repairs to his vehicle at any point of time and all service periods were completed and at present the guarantee period was also completed. At the request of complainant on 05-04-06 the opposite parties company mechanic got repaired the vehicle and handed over the same in good and running condition. After examining the same, the complainant had also put up his signature on a letter. In order to harass and gain new vehicle, the complainant got issued legal notice and filed this vexatious complaint. The complainant is guilty of suppresio vari and suggestion falsi.

    It is submitted that the 3rd opposite party has provided finance facility to complainant for purchase of tractor. The complainant is irregular in paying monthly installments. The 3rd opposite party several times demanded him to discharge balance amount. But he has been postponing the same on one pretext or the other except empty promises. Finally the opposite parties got issued a letter dt.08-06-06 demanding the complainant to pay balance amount due to them. At last the complainant approached opposite parties and issued cheque bearing No.856409 dt.03-09-06 for Rs.55,000/- drawn on State Bank of India, Ponnekallu, Tadikonda Mandal, Guntur District towards part payment of debt to 3rd opposite party. But the same was returned with a memo dt.22-09-06. To avoid payments to opposite parties, the complainant tactfully filed the present complaint after exchange of notices. The complainant has to pay balance installments of Rs.35,066/- to 3rd opposite party with interest from 16-02-05. Therefore, it is prayed to dismiss the complaint against this opposite party with exemplary costs.

    The 2nd opposite party has filed its version denying all the allegations made in the complaint. It is submitted that the 1st opposite party/dealer received total sum of Rs.70,000/- from complainant and presently the complainant has to pay Rs.46,166/- to 1st opposite party/dealer.

    The engine noise problem arises at 791 (2/6/05) Hrs and the opposite parties repaired engine under warranty basis. So no heavy loss is caused to complainant. Thereafter he has raised the same complaint with the dealer at 1127 hrs (4/4/06). At that time, the service engineer went personally, visited the complainant and taken trail and effected minor adjustments in tractor. Then the complainant also gave satisfaction letter to dealer/1st opposite party stating that the tractor is in good condition. After two months, again the complainant called to toll free and gave complaint about engine and gear box. Since the complainant frequently complaining about engine and gear box, the dealer/1st opposite party informed the complainant to come to workshop for inspection. But the complainant has some financial issue with the dealer/1st opposite party and refused to come to workshop. Then this opposite party went to customer home personally and taken trail on the tractor. They noticed no such problem with the tractor. The complainant has wrong perception about tractor. They asked him to come to workshop to check major specifications. He has agreed to visit workshop but even after 4 months also he did not turn up for inspection. After sale of tractor, the customer has come to workshop only three times. Presently tractor is running without hour meter. Since the opposite parties are ready to give the services but the complainant is not coming to workshop. So the dealer/1st opposite party will not take back the tractor after 20 months from the date of delivery. Therefore, it is prayed to dismiss the complaint with exemplary costs.

    The 3rd opposite party also filed its version denying general allegations made in the complaint. It claims that there is need or necessity to implead it as 3rd opposite party. It is an independent unit and there is no need to follow the advice of opposite parties 1 and 2 to finance the vehicle. There is no allegation leveled against this opposite party by the complainant. This opposite party gained lot of reputation in general public for its services for the last several years. This opposite party advanced loan amount to complainant on 30-07-05 on hypothecation of tractor which is repayable in half yearly installments. The complainant having taken loan amount repaid installments till date. The allegation that this opposite party advanced loan after six months is not correct. There are no latches or negligence or deficiency of service on the part of this opposite party either in advancing loan or in its service. Therefore, it is prayed to dismiss the complaint.

    All the parties have filed their respective affidavits. The complainant got marked documents vide Ex.A1 to A15, whereas the opposite parties 1 and 2 have got marked the documents Ex.B1 to B30.

    Now the points for determination are that

    1. Whether the tractor purchased by complainant from opposite parties 1 and 2 has any manufacturing defects in it?
    2. Whether the opposite parties 1 and 2 have committed deficiency of service?
    3. Whether the complainant is entitled for the reliefs as sought for?
    4. To what extent?

    POINTS 1 & 2

    It is an admitted fact that the complainant has purchased tractor from dealer/1st opposite party which is manufactured by 2nd opposite party i.e., Mahindra and Mahindra Limited on part of finance advanced by 3rd opposite party. It is his allegation that 3 months after purchase of tractor, he has found problem in the engine of tractor, due to which it has to be repaired and his agricultural work suffered. Inspite of making several requests on 1st opposite party it did not effect the repairs properly. It is also his allegation that he wrote several letters to 2nd opposite party about problems faced by him and at last service engineer came from Bangalore who is not skilled engineer. As such the tractor could not be repaired and kept in good condition. He spent lot of money both on tractor and as well as on agricultural operations. At last he got issued legal notice on 27-09-06 for change of tractor or refund of its value, who gave evasive reply through letter dt.03-10-06.

    It is the contention of opposite parties that the vehicle has no manufacturing defect at all and there is no deficiency of service on their part. They have offered best of services to complainant as and when requested. They also sent service engineer from Bangalore to the house of complainant who found the engine and other parts of tractor were functioning properly. As per pre-delivery inspection report vide Ex.B21, the vehicle was delivered in fit and sound state after satisfaction of party. Accordingly, there is no specific averment that the vehicle sold by opposite parties was defective. As such there is no dispute regarding quality, quantity, weight and standard of goods sold. As per the statement made by complainant himself it is about repairs and troubles of vehicle which the opposite parties have properly responded and offered their services, as per four free labour services vide Ex.B1 to B4, job cards vide Ex.B6 and Exs.B25 to B30 and letter addressed by complainant himself on 08-07-05 vide Ex.B23 expressing his satisfaction about the same. The opposite parties also filed photographs of tractor to show the vehicle condition and its colour. Therefore, it is their contention that there is absolutely no manufacturing defect in the vehicle purchased by complainant.

    In view of the above referred contentions, we got to resolve the issues under consideration. The documents filed by complainant (Xerox copies) vide Ex.A1 to A15 pertains to purchase of vehicle from 1st opposite party such as receipts, temporary certificate of registration, office copy of legal notice, reply notice and the terms printed in Telugu and the warranty, which are not in dispute. The date of purchase of vehicle and its delivery is 07/16-02-05. Four services were effected i.e., on 10-05-05, 06-08-05, 09-11-05 and on 08-02-06 at a regular interval of three months, which is evident from Ex.B1 to B4. While doing first service on 29-03-05 vide Ex.B25 job card a sum of Rs.2200/- charged and as seen from job card vide Ex.B26 engine oil was changed on 03-05-05 by charging Rs.2200/-. As per job card vide Ex.B27 abnormal noise was found coming from engine and engine oil is to be changed on 02-06-05 for which a sum of Rs.3000/- is estimated. The job card vide Ex.B29 dt.27-12-05 it is noted engine oil to be changed, self not working, gear oil to be changed, Hyd oil to be changed, electrical checkup. As per job card vide Ex.B30 no date is mentioned, it is found noise coming from gear box. As per job card vide Ex.B28 no date is mentioned, abnormal noise was found coming from engine for which crank shaft connecting brgs broken were repaired at the estimated cost of Rs.3000/-. They have charged complainant. A letter of satisfaction is obtained vide Ex.B23 from complainant on 08-07-05. Even after this letter of satisfaction there were troubles in the vehicle as seen from above referred job cards.

    Though the complainant did not choose to send the vehicle to Government Authorized Center for test report to find out manufacturing defect if any, both the complainant and opposite parties have jointly filed a memo to send the vehicle to M/s.Venkata Sai Automobiles, Bypass Road, Autonagar, Guntur for testing purpose. Accordingly, it was ordered. A local mechanic had taken trial and inspected the tractor for mechanical problems in engine, gear box and other vital components of the tractor. His observations are:

    1. Engine pulling power in OK
    2. Transmission noise is normal (noticed transmission oil level less and needs replacement)
    3. Hydraulics functioning OK. Observed leakages from Isolator value, VTU Housing packing & PTO seal.



    From the material available on record including the test report of local senior mechanic what is observed is that there is no defect in the tractor purchased by complainant, it is often giving trouble due to noise in engine, gear box and other aspects for which the repairs are carried out from time to time. But it appears that they are not properly and promptly attended by workshop and service engineers of opposite parties 1 and 2. As alleged by 1st opposite party in his version, the complaint is not filed for fancy sake to evade payment to 3rd opposite party. The 1st opposite party put forth more emphasis on due installments by the complainant to 3rd opposite party in para 8 and 9 of his version, whereas the 3rd opposite party in its version did not claim so. May be the complainant is in debt to 1st opposite party and the same is not for consideration before this Forum. There appears truth in the allegations leveled by complainant about problems faced by him in respect of tractor purchased. Thus we are of the considered opinion that there is no inherent manufacturing defect in the tractor purchased by him but there is deficiency of service in effecting prompt and proper repairs to the said tractor when they complained. The points are for answered accordingly.

    POINTS 3 & 4

    In the light of the discussion made above and findings reached there on, the complainant is not entitled for substitution of tractor with a new one by returning the same to opposite parties. However, the complainant is entitled for getting the vehicle repaired effectively and keep the same in good condition so as to run his agricultural operations smoothly. The opposite parties 1 and 2 shall take up the repair work of engine, gear box and other vital components and keep the vehicle in fit and sound condition at free of cost. There cannot be any doubt that the complainant has suffered mental agony for such deficiency of service committed by opposite parties 1 and 2. Therefore, we are also of the view that he is entitled for compensation of Rs.3000/- and legal expenses of Rs.1000/-.

    In the result, the complaint is allowed in part in terms as indicated below:

    1. The opposite parties 1 and 2 are hereby directed to get the tractor of complainant repaired effectively and keep it in fit and sound condition by checking engine, gear box and other vital components of the same at free of cost.

    2. Further they are directed to pay Rs.3000/- as compensation towards mental agony, pain and suffering and Rs.1000/- towards legal expenses to complainant.

    3. The above works shall be carried out along with payment of compensation and legal expenses within a period of six weeks from the date of receipt of copy of the order. Otherwise, the amounts awarded shall carry interest @9% p.a., till the date of realization.
  • edited November 2011
    hai, mahindra 475 tractor come to white smoke from exhaust. Already we serviced pump & injector also.why pls.reply.
  • monish77monish77 Junior Member
    edited December 2011
    Dear all,
    My Tata manza is stranded for the want of spares, since mid jun2011, kindly help by possible ways to compensate lost time, money wasted in communication on telephone, vehicle etc and stress caused to self and family.
    please guide....
    this is a distress call???
    which consumer court would be best?
    with warm regards.
  • edited September 2013
    I mr. Karan wasan of kirti nagar , delhi ... I purchased car xuv500 on 10th febfrom mahendra showroom which is at rama road ... From the date of purchse i m facing many problems in it... Paint becoming rust day by day .. SO many times i hve complaint.. But i did not recvd any solution ... I am so anxious abt my car ...
    Sought me out from all ths stragedy...
    Calle me at :-9971671108
  • edited January 2014
    dear sir i have booked my honda honda city diesel vxmt colour white my booking recipt no.26 at bathinda dealership deep honda in december month Last Wednesday I called them and asked about delivery of car but they refused and said they will give delivery in april...all they want is black money
    Please do the needful help to deliver the car
    I am very disappointed that agency
    Deep honda
    Bathinda (punjab)
    My email id dineshsingla063@gmail.com
    Mob- 098555-55525
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