Complainant Satnam Singh has filed the present complaint against opposite parties (for short O.P.) U/S 12 of the Consumer Protection Act, 1986 whereby he has prayed for issuance of a direction to the opposite parties to deliver his vehicle by replacing it with a new vehicle. Opposite party no.4 be directed to pay the bill of repair if any, to the opposite party no.1 and further to pay him a sum of Rs.50,000/- as compensation for suffering and unnecessary harassment alongwith Rs.3000/- as litigation expenses.

2.      The case of the complainant in brief is that he is owner of Tata Ace-2016 bearing registration No.PB-35-Z-0658, Engine No.05CTYS36938, Chassis No.MAT535001GZC14187 which was purchased from Cargo Motors Pvt.Ltd. Pathankot through finance from Kangra Central Co-operative Bank Ltd. Kangra. The vehicle was purchased on 31.05.2016 and delivered to him on 1.06.2016 by opposite party no.1 as such he is consumer of the opposite parties. The vehicle was of commercial in nature and the applicant was unemployed and purchased the vehicle with sole motive to earn his livelihood and has no other source of income. He has further pleaded that the total cost of the vehicle was Rs.4,34,108/- and paid some down payment and remaining amount of Rs.3,50,000/- was got financed trough opposite party no.3 and the vehicle was insured by ICICI Lombard General Insurance Company i.e. opposite party no.4. His vehicle was having some manufacturing defect and it  surfaced just after few days of purchase of vehicle and he informed the opposite party no.1 about the problem in the vehicle. Just after running 200 K.M. his vehicle was breakdown and as such he informed the opposite party no.1 about the fate of the vehicle. On the asking of opposite party no.1 the vehicle was left at the workshop of opposite party no.1 at Malikpur Chowk, after few days of purchase and after repair the vehicle was returned to him but after a few days it again started creating some trouble and it was again taken to the Workshop of opposite party no.1. He has next pleaded that since the purchase of vehicle; the vehicle was taken to workshop of the opposite party no.1 more than 8 times and is still lying in the workshop of opposite party no.1. He made complaints at the toll free no. of opposite party no.1 but no action was taken on the complaints filed by him. The few complaint numbers which he remembers are 42228814491, 4330882949, 43272832918. His monthly loan installment was approximately Rs.8,000/-. However, due to hidden manufacturing defects in the vehicle, it break down soon after purchase and it remained in the workshop of opposite party no.1, he failed to earn a single penny from the vehicle and as such failed to deposit the monthly installments of the loan amount. He has many times visited the office of the opposite party no.1 and requested them to replace the defective vehicle with new vehicle but of no avail. The vehicle is insured one and is in warranty period, so he cannot be held liable for any payment to the opposite party no.1. He has many times made requests to the opposite party no.1 to return the vehicle. The opposite party has got no authority to hold his vehicle and as such his vehicle was illegally withheld by the opposite party no.1 without any fault. He is unemployed and wants to earn his livelihood by plying the vehicle purchased from the O.P.No.1. Due to defective vehicle and wrongful seizure of the vehicle by the opposite party no.1, he failed to earn any income and as such suffered a huge loss both financially and mentally due to negligence. Thus there is deficiency in service on the part of the opposite parties. Hence this complaint.

3.    Upon notice, opposite party no.1 & 2 appeared through their counsel and filed a joint written statement taking preliminary objections to the effect that complaint is not maintainable in the present Forum ; the complainant is not covered under the definition of consumer; the complainant is estopped by his own act and conduct to file the present complaint;  there is no deficiency in service on the part of the opposite parties and the Hon’ble Forum has no jurisdiction to try and entertain this complaint and the present complaint is liable to be dismissed under Section 26 of the Act for being false, vexatious, frivolous and baseless. On merits, it was submitted that the vehicle was commercial in nature hence is not covered under the Consumer Protection Act. It is admitted by the complainant that he had purchased the vehicle and got it financed through opposite party no.3 as such the opposite party are not privy to such agreement between the complainant and opposite party no.3. It was denied that the vehicle broke down at 200 Kms or the vehicle came to the workshop of the opposite party at 200 Kms. As per record of the opposite party, vehicle was brought to the workshop on 17.06.2016 at 1240 Kms for routine checkup and repair. No dates are given as to when and on which Kms the vehicle came to the workshop and received back after its alleged repairs and the risk of repetition the opposite party crave leave to file a details reply as and when the complainant would provide the details as mentioned above. All averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.

4.       Upon notice, opposite party no.3 appeared and filed its written reply submitting therein that complainant was advanced loan for purchasing vehicle and he is liable to pay back the loan amount with interest being the public money. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.

5.      Upon notice, opposite party no.4 appeared through its counsel and filed written reply taking the preliminary objections that the complainant has no cause of action to file the present complaint; the complainant has wrongly filed the present complaint against ICICI Lombard Gen. Ins. Co.; the policy has still not verified and till then it is denied that the vehicle was insured with the opposite parties and even the complaint is premature as the complainant never filed any claim before the opposite party. On merits, it was submitted that the opposite party has no link with the manufacturing defect in the vehicle. The dispute is between the complainant and manufacturer and the complainant wrongly made the insurance company as party to the complaint. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.

6.        Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1, alongwith other documents Ex.C2 to Ex.C9 and closed the evidence.

7.       Counsel for the opposite parties no.1 & 2 tendered into evidence affidavit of Sh.I.D.Sharma Sr.Manager Cargo Motors Pvt. Ex.OP1,2/1 and of Varinder Bhardwaj Assistant Works Manager Ex.OP1,2/2, alongwith other documents Ex.OP1,2/3 to Ex.OP1,2/15 and closed the evidence.  

8.       Ms.Vishaka Sharma Manager of opposite party no.3 tendered into evidence her own affidavit Ex.OPW-3/1, alongwith other documents Ex.OP3/1 to Ex.OP-3/3 including Mark ‘X’, Mark ‘Y’ and Mark ‘Z’ and closed the evidence.

9.       Counsel for the opposite party no.4 tendered into evidence affidavit of Sh.Aman Singh Authorized Signatory Ex.OP-4/1 and closed the evidence.

10.         We have carefully examined all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present complainant and the opposite party litigants while (at the same time) taking the due judicial-notice of the fact that relief has been sought against the opposite party vendor workshop and manufacturers only and not against the financing Bank and the general Insurers who been enjoined to the present complaint as pro-forma defendants only.  

11.     We find that the present dispute/complaint has arisen as a result of the alleged inherent manufacturing defect in the newly purchased Tata Ace 2016 coupled with further non-satisfactory repairs at the hands of the opposite party vendors workshop. However, the complainant has failed to prove the allegation of manufacturing defect through an expert opinion and/or otherwise through any other secondary evidence etc. Although, the OP1 vendor workshop and OP2 manufacturers have been fully responsible and liable to provide an efficient after sales service including satisfactory repairs to their customer/consumer vendees but somehow they could not come up to the high expectations of the present complainant who left his vehicle abandoned with the OP1 workshop alleging it to be not in good working order. However, we find that the complainant has not even explained the exact nature of the alleged manufacturing defect and/or even the trouble faced by him during the use of the Tata vehicle whereas the titled opposite party vendor workshop have somehow failed to provide the requisite satisfactory repairs to the complainant’s vehicle that has since been lying with OP1 at its Gurdaspur Work Shop since 02.08.2016.

12.     We further find that the complainant has simply alleged ‘manufacturing defect’ in the vehicle but has not produced any evidence to prove his allegation and as such his sought after relief of ‘replacement and/or refund’ shall not be considered. Thus, the OP1vendors workshop and OP2 manufacturers are absolved of their liability through the failure of the complainant to prove his allegation of manufacturing defect. The complainant has also not cared (rather not bothered) to inquire of the present repair-status of his Tata vehicle and report the same to the forum accordingly. Somehow, the OP1 vendor Service Centre had first provided the requisite repairs to the defective vehicle but it again went out of order and the OP service provider was allegedly re-approached to provide service-repairs but the same were not satisfactorily provided and thus prompted the present complaint. Thus, we are of the considered opinion that the OP1 vendor workshop has not been able to provide satisfactory repair-services whereas the present complainant has not been able to statutorily establish any of the allegations as made out by him in the present complaint. 

13.     In the light of all above, we are of the considered opinion that the instant complaint can be best disposed of by directing the OP1 vendor workshop to re-check the Tata Ace vehicle for its being in perfect order functioning ready for delivery to the complainant (if he so consents) who shall however be at liberty to take back the vehicle from the OP1 Work Shop within a period of ‘15’ working days on receipt of the copy of the present orders and the complainant shall accept its delivery after checking the same to his satisfaction. The parties shall however themselves bear their own costs, here.

14.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.

                    (Naveen Puri)                                                   

                                                                                                   President   

Announced:                                                                       (Jagdeep Kaur)

March,21 2017                                                                          Member

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