Punjab

Ludhiana

CC/19/14

Charanjeet Singh - Complainant(s)

Versus

Atul Auto Limited - Opp.Party(s)

Rajneesh Lakhanpal Adv.

07 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:14 dated 01.01.2019.                                                Date of decision: 07.03.2023.

 

Charanjeet Singh aged 22 years son of Narinder Singh Wadhwa, resident of H. No.199-YF, Near Nanak Darbar Gurdwara, Rishi Nagar, Haibowal Khurd, Ludhiana.                  

……Complainant

                                                Versus

1. Atul Auto Limited, 8-B, National Highway, Near Microwave Tower, Shapar-Verava-360024, District Rajkot, Gujarat, through its Director/Managing Director/Authorized Signatory.
2. MRPC Motors (Authorized Dealer : Atul Auto Limited), Workshop at Oswal Cancer Hospital Road, Focal Point, Behind MRPC Petro Pump, Ludhiana through its Manager/Proprietor/Authorized signatory.
3. Chand Automobiles, 658, Industrial Area, Near Bye-pass Chowk, Ludhiana through its Manager/Proprietor/Authorized signatory.
4. IndusInd Bank Limited, Corporate Office at 8^th Floor, Tower-1, One Indiabulls Centre, 841, S.B. Marg, Elphinstone Road, Mumbai-400013.

…….Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Rajneesh Lakhanpal, Advocate.  

For OP1                         :         None. (Evidence already closed by order vide                                            order dated 25.01.2023)

For OP2                         :         Complaint against OP2 stands dismissed as                                                        withdrawn vide order dated 09.08.2022.

For OP3                         :         Exparte.

For OP4                         :         Complaint against OP4 not admitted vide order                                        dated 11.01.2019

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant is owner of Atul Gemini Three Wheeler PG bearing registration No.PB-10-FV-4529 which was purchased from opposite party No.2 for an amount of Rs.1,57,500/- vide invoice No.R-0013 dated 02.11.2016. The complainant got the said vehicle financed from opposite party No.4 having loan account No.PLL03818G and was paying EMIs to opposite party No.4 bank. The complainant submitted that after its purchase, the said vehicle started giving troubles and the complainant several times got the same checked on different dates. As and when he got his vehicle checked from MRPC Motors opposite party No.2, its officials told the complainant that there is manufacturing defect in the vehicle and the engine of the vehicle is not working properly and the same shall have to be opened and they opened the engine of the vehicle. After service of the vehicle, they delivered the same to the complainant after 15 days i.e. on 05.06.2017 and assured him that now the vehicle shall not give any problem. The complainant further submitted that even thereafter, the defect/problem of the vehicle did not resolve and it started consuming more mobil oil and noise of the vehicle also increased. Again the complainant visited the office of opposite party No.2 and he was astonished to see that opposite party No.2 had closed down his agency and when he enquired about the same from nearby locality, he came to know that the said agency has been taken over by opposite party No.3 Chand Automobiles and the same officials were working there who had been previously working with opposite party No.2. On 02.06.2018 when the complainant got his vehicle checked from opposite party No.3, its official thoroughly examined the vehicle and came to conclusion that there is a manufacturing defect in the vehicle and same cannot be resolved. However, they changed some parts of the vehicle  and charged Rs.3328/- vide invoice No.T-298 dated 02.06.2018. The complainant further approached opposite party No.1 to 3 with request to resolve the problem or to change the vehicle with new one and to refund Rs.3328/- charged vide invoice no.T-298 dated 02.06.2018 and also to compensate him but they flatly refused to accede to the genuine request of the complainant. The act and conduct of the opposite parties amounts to deficiency in service due to which the complainant has suffered harassment physically and mentally for which he is entitled to compensation of Rs.2,00,000/-. In the end, the complainant has prayed for directing opposite party No.1 to 3 to pay an amount of Rs.2,00,000/- as compensation  and to resolve the problem in the vehicle free of costs or to change the vehicle with new one.

2.                The complaint was not admitted against opposite party No.4 vide order dated 11.01.2019. Notice to opposite party No.3 was issued through registered post on 16.01.2019 but it did not appear despite service of notice and as such, opposite party No.3 was proceeded against exparte vide order dated 29.03.2019. The complainant suffered statement to withdraw the complaint as against opposite party No.2 and as such, vide order dated 09.08.2022, the complaint against opposite party No.2 was dismissed as withdrawn.

3.                Upon notice, opposite party No.1 appeared and filed written statement and took preliminary objections that there is no deficiency in service on its part and the complainant has leveled false allegations against it. According to opposite party No.1, the complainant himself has created a whole problem for causing problem in the vehicle and with malafide intention wants to take undue advantage for lower down the image and repudiation of the company in the market as there was not a major problem in the vehicle which was cured by opposite party No.1. The problem was also created by the complainant for not taking the paid service and only availed 5 warranted services and run the vehicle without engine oil.

                   On merits, opposite party No.1 alleged that after purchasing the vehicle customer has to avail 20 services in two years which 5 are within warranty and remaining 15 are paid services but the complainant has not availed all the services and just availed free services and had not come with the dealer thereafter. Whenever the complainant came to opposite partyNo.1 and narrated about the problem in vehicle, the vehicle was immediately checked properly and problem was resolved and parts of the vehicle which was to be replaced properly. Opposite party No.1 further averred that opposite party No.2  was changed and opposite party No.3 was taken over thereafter. Opposite party No.3 told the complainant that as the vehicle is not in warranty period, so he has to pay the charges of replacing the part to which the complainant agreed and the vehicle was repaired by replacing some parts. Opposite party No.1 further averred the complainant did not come to it for refunding the charges. Even the complainant was running the vehicle without engine oil without taking service in stipulated period and is taking undue advantage making false allegations against it. Opposite party No.1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint and also tendered affidavit Ex. CB of his father Sh. Narinder Singh Wadhwa son of Ajit Singh. The complainant also tendered documents Ex. C1 is the copy of retail invoice No.R-0013 dated 02.11.2016, Ex. C2 is the copy of temporary certificate of registration No.PB-10-V/2016/Temp/7291, Ex. C3 is the copy of delivery challan dated 28.11.2016, Ex. C4 is the copy of registration certificate No.PB10-FV-4529, Ex. C5 is the copy of insurance certificate, Ex. C6 is the copy of permit, Ex. R7 is the copy of retail invoice dated 09.11.2016, Ex. C8 is the copy of receipt No.3480 dated 28.11.2016, Ex. C9 is the copy of retail invoice dated 10.12.2016, Ex. C10 is the copy of retail invoice dated 31.12.2016, Ex. C11 is the copy of receipt No.4575 dated 17.01.2017, Ex. C12 is the copy of retail invoice dated 25.02.2017, Ex. C13 is the copy of receipt No.4987 dated 25.02.2017, Ex. C14 is the copy of retail invoice dated 18.04.2017, Ex. C15 is the receipt No.266 dated 18.04.2017, Ex. C16 is the copy of retail invoice dated 05.06.2017, Ex. C17 is the copy of receipt No.450 dated 05.06.2017, Ex. C18 is the copy of tax invoice dated 02.06.2018, Ex. C19 are the photographs of the vehicle and closed the evidence.

5.                Opposite party No.1 failed to adduce evidence and documents  despite grant of numerous opportunities and as such, evidence of opposite party No.1 was closed by order vide order dated 25.01.2023.

6.                We have heard the arguments of the counsel for the complainant and also gone through the complaint, affidavit and annexed documents and written reply produced on record by both the parties.

7.                Undisputably, the complainant purchased a three wheeler LPG make Atul Gemini bearing registration No.PB-10-FV-4529 from opposite party No.2 for a sum of Rs.1,57,500/- vide invoice No.R-0013 dated 02.11.2016. He availed the loan facilities from opposite party No.4 bank. The complainant got his vehicle checked from opposite party No.2 an authorized dealer of opposite party No.1 in the last week of May 2017 which was handed over to the complainant on 05.06.2017. According to the complainant, the officials of opposite party No.2 told the complainant about the existence of some manufacturing defect in the vehicle. Again on 02.06.2018 i.e. after a lapse of about one year, the complainant experienced the excessive consumption of mobil oil in the vehicle which was examined by new authorized dealer i.e. opposite party No.3 and according to the complainant, they also suggested about the existence of some manufacturing defect. However, an amount of Rs.3328/- was charged from the complainant. Going by the pleadings and evidence of the complainant, the complainant did not produce any single document/job card where the engineers of these authorized centers (OPs) confirmed the existence of some manufacturing defect. Independently also, the complainant has not got examined their expert or any automobile engineer to substantiate his claim with regard to existence of manufacturing defect in the vehicle.

8.                Contrary to that, it is the consistent stand of opposite party No.1 that as per the policy of the company, the complainant was required to avail 20 services within two years from the date of its purchase, 5 of which were free services within warranty and remaining 15 were paid services. Perusal of record shows that the complainant availed only 5 free services which were within warranty but did not approach the authorized dealer for remaining 15 paid services. Since the vehicle of the complainant was not within the warranty period so opposite party No.3 has rightly charged the charges for replacing the parts. As such, the complainant is not entitled to refund of amount of Rs.3328/- which was charged by opposite party No.3. Even otherwise, the initial onus for proving the deficiency in service was upon the complainant.

9.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:07.03.2023.

Gobind Ram.

 

 

Charanjeet Singh Vs Atul Auto                           CC/19/14

Present:       Sh. Rajneesh Lakhanpal, Advocate for the complainant.

                   None for OP1. (Evidence already closed by order vide order dated           25.01.2023)

                   OP3 exparte.

Complaint against OP2 stands dismissed as withdrawn vide order dated 09.08.2022.

                   Complaint against OP4 not admitted vide order dated 11.01.2019

 

                   None turned up for opposite party No.1 today also. None has been putting in appearance on behalf of opposite party No.1 since 25.01.2023.

                   Arguments of the counsel for the complainant heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:07.03.2023.

Gobind Ram.