Complainant Sukhwinder 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 replace his defective vehicle in question with new one. Opposite parties be also directed to pay Rs.50,000/- as compensation and litigation expenses on account of mental and physical harassment to him at the hands of the opposite parties in the interest of justice.
2. The case of the complainant in brief is that he has purchased the vehicle from the opposite party no.1 on 29.11.2012 and thereafter he got the same registered through District Transport Officer, Gurdaspur and the Registration number of the vehicle is PB-06-Q-4791. The Engine Number of the vehicle in question is 50EXYSB 0875 and Chassis No.MAT445402CVG59275. The opposite party no.1 has got financed his said vehicle from the opposite party no.2 for the sum of Rs.3,00,000/-. The opposite party no.1 has sold the defective vehicle in question to him, as from the very beginning of the purchase of the vehicle in question, the Engine of the vehicle in question started giving problems. Thereafter he approached the opposite party no.1 and then the opposite party no.1 changed the Engine of the vehicle in question and also replaced the Injectors and also replaced the High Pressure Pump etc. But inspite of that the defect was not removed and the vehicle runs up till 10,000 K.Ms and while covering this distance, the opposite party no.1 has changed the abovementioned entire things of the vehicle in question, which shows that the vehicle was having manufacturing defects. Due to the defective vehicle sold by the opposite party no.1, he was not able to give installment of the vehicle in question to the opposite party no.2. The vehicle in question being defective one, is lying in the Workshop of Cargo Motors, Batala. The opposite parties are now alleging that the Engine is liable to be overhauled and for this they are demanding Rs.70,000/- from him. He is poor person and purchased this vehicle for earning his livelihood and the opposite party no.1 sold his defective vehicle and due to the illegal act of the opposite party no.1, he is passing his days under starvation. He has many times requested the opposite party no.1 to replace his defective vehicle and provide him new vehicle and also to pay compensation but they have refused to admit his claim. Due to the illegal act and conduct of the opposite parties he has suffered great mental agony and he has suffered mental as well as physical harassment from the hands of the opposite parties. Thus there is deficiency in service on the part of the opposite parties. Hence the present complaint with the aforesaid prayer.
3. Upon notice, opposite party no.1 & 3 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 complaint is estopped by his act and conduct to file the present complaint; there was no deficiency in service on the part of the opposite parties and the present complaint has been filed by the complainant with the ulterior motive to harass the opposite parties. Further it is stated that the complaint is not covered under the Consumer Protection Act, as the vehicle is being plied as commercial vehicle; the vehicle met with an accident at 34651 Kms on 24.09.2013; as per terms and conditions of warranty it has abated at 36000 Kms i.e. before 22.10.2013; the vehicle had been taken to other service stations for which the complainant has not made any reference or disclosure hence replying OP is not aware for what purpose the vehicle has been taken to other workshops. And the complainant is guilty of fiddling with the Speedo meter of the vehicle while on 22.10.2013 Kms was 36712 and on 12.11.2013 it was 31125 Kms and the present complaint is liable to be dismissed under Section 26 of the Act for being false, vexatious, frivolous and baseless. On merits, the similar objections have been raised though in detail and the complaint has been prayed to be dismissed U/S 26 of the C.P.Act with costs of Rs.10,000/- as provided under the Act.
4. Upon notice, opposite party no.2 appeared through its counsel and filed written reply taking the preliminary objections that the present complaint is not maintainable against the opposite party; the present complaint is barred for mis-joinder of parties; the vehicle in question is purchased by the complainant for the commercial purposes and earning profits only; no cause of action accrues to the complainant against the opposite party; the jurisdiction of this Ld.Forum is barred to the complainant against the opposite party no.2 as there is arbitration agreement between the complainant and the opposite party no.2 for raising all the disputes and differences before the arbitrator and the complainant has not come to the court with the clean hands and is liable to pay the exemplary costs for filing this false and frivolous complaint. On merits, all averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.
5. Upon notice, opposite parties no.4 and 5 appeared through their counsel and filed their joint written reply taking the preliminary objections that the complainant is not a consumer within the meaning of the term ‘Consumer’ as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. It was submitted that the vehicle in question is a commercial vehicle and has covered a distance of 48816 Kms as on 23.1.2014 i.e. within a mere span of 15 Months. The extensive usage of vehicle shows that the vehicle is being used for commercial purpose and as such the complainant cannot claim the status of a ‘Consumer’ under the Consumer Protection Act, 1986 and is not entitled for any relief from this Hon’ble Forum. It has been further submitted that the present complaint is badly time barred. The complainant has purchased the vehicle in question in the month of September 2012 and has instituted the present complaint in the month of March 2015 i.e. after 2 years 6 months. Limitation for filing of a complaint as per provisions of section 24 A of the Consumer Protection Act is two years. The present complaint instituted after two years is thus not maintainable and is liable to be dismissed. On merits, it was submitted that the complainant has firstly brought the vehicle in question at 9505 Kms at the workshop of Gurdaspur Automobiles for availing First Free Service and subsequently, the vehicle was brought at 19565 Kms for availing Second Free Service. Hence, the allegation of the complainant that opposite party no.1 replaced the engine and Injectors before 10000 Kms is bald and vague allegation to prejudice the mind of this Hon’ble Forum. The complainant has further failed to annex any documentary evidence in support of his averments and in the absence of any documentary evidence, the allegations of the complainant cannot be relied upon. It was further submitted that the vehicle in question has covered 48816 Kms within a mere span of 15 months, which establishes the fact that the vehicle was not having any defect. Furthermore, the warranty in respect of the vehicle in question has already been expired and the complainant cannot take warranty benefits after its expiry period.
6. Notice issued to the opposite party no.6 had not been received back. Consequently, it was proceeded against exparte vide order dated 11.5.2015. Opposite parties no.4 & 5 were also proceeded against exparte vide order dated 26.8.2015
7. Complainant tendered into evidence his own affidavit Ex.C1, alongwith other documents Ex.C2 & Ex.C3 and closed the evidence.
8. Counsel for the opposite parties no.1 & 3 tendered into evidence affidavit of Sh.I.D.Sharma Sr.Manager Cargo Motors Pvt. Ex.OP1,3/A and of Maninder Singh Ex.OP1,3/A2 alongwith other documents Ex.OP1,3/B to Ex.OP1,3/K and closed the evidence.
9. Sh.Sahib Singh, Branch Manager of opposite party no.2 tendered into evidence his own affidavit Ex.OP-2/1, alongwith other documents Ex.OP2/2 and Ex.OP-2/3 and closed the evidence.
10. We observe that the complainants’ sought after relief comprises of replacement of the allegedly defective Vehicle in question with a new one along with the quantified cost and compensation. We find that the present complainant has simply made bald allegations of ‘inherent defect’ in his Vehicle but has failed to produce any cogent evidence by way of ‘technical-narration’ of the alleged inherent defect coupled with an expert opinion duly supporting the same. However, the complainant has merely filed his own affidavit simply deposing the contents of the complaint, copy of the vehicle’s R.C. and the vehicles’ purchase-invoice and that does not even prove the other allegations as made out by him in his present complaint. In fact, the ‘onus of proof’ to prove the alleged defect, deficiency in service, employment of unfair trade practice and unscrupulous exploitation under the Act lies heavily upon the ‘complainant’ and here the present complainant has failed to discharge/ execute. On the other hand, we find that the OP service providers have produced sufficient evidence by way of Ex.OP1, 3/ c, d, e & ors. i.e., service history, warranty terms & inventory check list etc and others on record to prove absence of defect/ misconduct etc under the Act.
11. In the light of the all above, we find the present complaint devoid/ bereft of all merit under the Act and thus ORDER for its dismissal with however no orders as to its costs.
12. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
November,19 2015 Member
*MK*
