Delhi

East Delhi

CC/141/2016

ABDUL - Complainant(s)

Versus

AMAAN KINETIC AUTO - Opp.Party(s)

04 Jul 2019

ORDER

             DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT Delhi

              CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092                                       

                                                                                                        Consumer complaint no.     141/2016                                                                                                                                                                                                         

                                                                                                        Date of Institution             13/04/2016

                                                                                                        Order reserved on             04/07/2019

                                                                                                        Date of Order                     08/07/2019               

In matter of

Mr Abdul  Rahman  

R/o- 1168, Churi Walan,

Jama Masjid, Delhi 110006……………………….……………….Complainant                                                                   

                                                                            

                                                                              Vs

1-The Manager   

M/s Amaan Kinetic Auto    

1/7, Lalita Park, Vikas Marg, Delhi -110092

 

2-The Manager   

Mahindra Two wheelers Ltd.   

D-1 Block, Plot no. 18/2,  

MIDC Chinchwad Pune, 411019 …………………………………….Opponents   

 

Complainant                                             In person  

Opponent 1…………………...…………………Deleted   

Opponent 2 Advocates………………………Mr Amit Dubey  Asso.  

 

Quorum ……….………………………………….Sh Sukhdev Singh       President

                                                                   Dr P N Tiwari               Member

                                                                   Smt Harpreet Kaur     Member                 

 

Order by Dr P N Tiwari  Member  

 

Brief - This complaint has been filed u/s 12 of the Consumer Protection Act, 1986, for alleged deficiency of services by OP1/service provider cum seller, but suffered harassment due to delay in advising complainant on the ground of filing complaint case no. 67/2012 on wrong territorial jurisdiction by New Delhi/Central Distt. Consumer Forum in four years of trail by their order dated 16/02/2016 as dismissed as not maintainable, hence re-filed in this Forum on 13/04/2016.      

Facts of the case – Complainant purchased a DURO scooter vide registration no. DL1-SS-2337 from Amman Auto cum service provider/OP1 being manufactured by Mahindra & Mahindra Co./OP2 on 03/03/2010 vide invoice no. 171 for a sum of Rs 41,000/-by cash (Ex CW1/1). It was stated that after running about 350 km, scooter started giving starting problems and excess fuel consumption, so was taken to OP1 for availing services as scooter was under warranty. Despite of repeated visit to OP1, no satisfactory service was provided which had caused lots of mental and physical harassment. Due to the deficiency of OP1, OP2 was also informed, but none had given satisfactory reply. Hence complaint case was filed before the New Delhi District Forum which was later dismissed as ‘Not Maintainable’ after four years of trial (Ex CW1/2). Hence complainant filed in this Forum for claiming harassment and refund of the cost of his scooter.  

 

After repeated notices, OP1 put his appearance and stated OP1 who was his brother had expired long back and he had taken over the shop, but had no connection now in two wheelers dealership from OP2. He submitted that he was running business of AMAAN Electricals since then. Whatsoever allegations of manufacturing defects or deficiency in services by OP1, now OP2 would be liable as OP1 was authorised seller and service provider of OP2. So, he may be exempted from the array of party.  

OP2 / Mahindra Two Wheeler Ltd. admitted that said two wheeler was purchased by the complainant from OP1 and time to time service was also done by OP1. All the defects were removed and complainant was satisfied till his last complaint. It was stated that the said scooter had one year standard warranty and there was no manufacturing defect, so as complainant demanded refund of the cost of the scooter doesn’t arise. OP2 also took reference of few citations as

i- CN Anantharaman vs Fiat India Ltd., AIR 2011 SC 523,

ii- Sushila Automobiles Pvt Ltd vs Dr Birendra Narayan Prasad& others, (III)(2010)CPJ 130 NC iii-Jose Philip Mampillins Premier Automobiles Ltd & others, 2004 (I)CPC 438 SC. It was held in these citations that until manufacturer defect was not present and goods could not be repaired then replacement would be done otherwise there would be no liability of manufacturer.  It was stated that complainant purchased scooter after proper satisfaction and scooter was new and in good condition which was always pre tested by Quality Inspectors (QI) and Diagnostic Expert cum Trainer.

It was also stated that in Maruti Udyog Ltd vs Susheel Kumar Gabgotra, 2006 (4) SC 113, where manufacturer could not be ordered to replace the goods or refund its price merely because some defective part could be replaced under warranty. The contract between OP1 and OP2 was based on principle to principle basis. Here, OP1 was working independently and autonomous in its functioning, so OP2 had no liability for any deficiency of OP1.

Complainant submitted his evidences through his own affidavit and affirmed on oath that all the facts and evidences on record were correct and rely on evidences on record from exhibit 26 to 36. Complainant stated that he accepted replies of OP2 from Exhibit 01 to 25 sent by OP2 through OP1 showing his agony and harassment from OP1. Complainant further stated that he was using Kinetic Maevel from 2001 to 2010 and sold it out in very good condition. Thereafter he purchased this scooter which had given maximum pain and trouble during its six years use. Neither defects were removed nor amount refunded, so he sold it and purchased Hero Maestro in 2016 which was running without any defect with good fuel consumption average. To establish deficiency in services, Complainant had submitted as M/s Maruti Udyog Ltd vs Susheel Kumar in CA 3734/2004 SC and Harmeet Singh vs BMW India Pvt Ltd, SCDRC (CHDH) in CC 13/22.

OP1 submitted their evidence through Mr Mohd Muqueem Neem, work manager with OP1 and submitted detail service reports through Annexures from 01 to 38. OP1 submitted that whenever problem was reported by complainant, defects were rectified as the said scooter was in warranty. Hence there was no deficiency in services.

 

OP2 also submitted their evidences through Mr Naveen Malhotra, AR with OP2 who stated on affidavit that OP2 had no role in any deficiency in services from OP1 and their all products were of world class reputation and supplied to their authorised dealers after strict quality control by their experts.  It was also submitted that OP2 did not accept any consideration amount from any complainant directly, so there was no direct contract with their consumers. At any time of service under warranty never manufacturing defect was noted by OP1. Refund of cost of any products only subject to non replaceable or presence of manufacturing defect, but in the said scooter, no such defects were on record, so OP2 would not be liable for any consideration.

Complainant submitted written arguments where he stated that the said scooter was defective since its purchase and suffered injuries many times because of no proper services were done by OP1. Due to continuous physical and mental harassment from this scooter, sold it and purchased another scooter. The arguments were taken on record.  

OP2 also submitted their written arguments and stated that the said scooter had run 16126 km till 02/03/2012 and every times services were done as per standard service protocol and whenever it was noted that some part was not repairable, it was replaced without any payment as scooter was under warranty. Therefore there was no point in issue for any refund of the cost of the scooter. Written argument taken on record.  

 

Arguments were heard from the complainant as none appeared from OP side. After perusal of file and evidences order was reserved on merit.

We have gone through all the facts and evidences on record. It was observed that scooter was taken for repeated services and alleged defects were removed in warranty tenure. The said scooter had run over 16000 km in two years and no manufacturing defects were reported. All the alleged deficiencies leading to personal injuries and maximum financial loss were without any concrete evidence and complainant had sold the said scooter reason best known to him. He had purchased another new scooter in 2016 without showing evidence. So, no liability can be fastened on OP2. During arguments, brother of deceased OP1 stated that his brother had died earlier and his shop had been taken over by his brother, but for another trade / electrical parts business and had no connection with OP2 and did not represent OP1. He further stated that he was before this Forum as he received notice on the same address. So citation submitted by complainant cannot be relied upon where as op’s reference relied & no deficiency was found in op-1 & op-2 more so two wheeler was sold by complainant before filing complaint here.

 

Hence, we have come to the conclusion that complainant has failed to prove any deficiency of OP2 and OP1. More so, OP1 had died earlier and no such party existing since long, so there is no merit in this complaint. Before coming to the final conclusion, we also relied on judgments as Indian Oil Corporation vs Consumer Protection Council, Kerala (1994) 1 SCC 397, where it was held that reliance has to be placed on the circumstances, documents and conduct of the parties to prove that the relationship between the parties was on Principal to Principal basis and in Hind Motors India Ltd vs Balvinder Singh in RP 3298/2004 for relationship between the parties.

Thus based on facts, evidences and merit of the case, we come to the conclusion that this complaint has no merit and deserves to be dismissed so dismissed without any order to cost.

 

The first free copy of this order be sent to the parties as per the Section 18 (6) of the Consumer Protection Regulation, 2005 ( in short CPR)  and file be consigned to the Record Room under Section 20(1) of CPR

 

 (Dr) P N Tiwari Member                                                                             Mrs Harpreet Kaur  Member              

                                                          Sukhdev Singh  President