The present complaint has been filed by the titled complainant, a private limited company through its Director Ashok Mahajan against the titled opposite parties alleging having sold/delivered him a defective vehicle Innova Crysta – TB (ZX-7S) MT infested with some manufacturing-defect as its Tyres get repeatedly burst and had to be changed four times within six-months of purchase and the complainant has thus sought replacement of the vehicle itself or at least the Tyres with the defect removed permanently and for once.
2. The complainant claims to have purchased the new luxury vehicle Make Oct' 2016 from the OP1 authorized Toyota dealer/vendor and got it registered (PB-06-AJ-3873) on 02.01.2017. The vehicle was financed by the Gurdaspur Branch of Canara Bank and was thus duly hypothecated in favor of the Bank whose repayment EMI (equated monthly) installments were in-time regular i.e., all associated cum collateral issues had been in order except the vehicle that was infested with some manufacturing defect as its Tyres were getting repeatedly burst for no noticeable/apparent reason. The complainant owner had to himself replace the Tyres four times within a total travel of 27080 km.
3. The complainant had approached the OP vendors many a times requesting him on every visit either to rectify/repair/remove the 'defect' permanently or otherwise to replace the vehicle as it had been under the warranty period, till that time. The vehicle was got checked for more than once at the Amritsar workshop of the OP2 Vendors whereas similar repair-works of other owners' vehicles were even done at Pathankot at their respective residences by the OP2 mechanics. Finally, at the point-blank refusal by the OP vendors to resolve the issue either way pertaining to the defective-vehicle, the complainant has filed the instant complaint praying for the here-in-above sought reliefs and has also filed the here-in-under listed documents-in-evidence, for successful prosecution of the same.
4. Listed documents (filed by the complainant Co.): i) Ex.C1 -Complainant's deposition/affidavit by its Director; ii) Ex.C2 - Copies of Aadhar; iii) Ex.C3 – Copy of R.C. (Registration Certificate); iv) Ex.C4 – Appointment & Walk-around Check-sheet; v) Ex.C5 – Insurance Certificate Copy; vi) Ex.C6 – Copy of Provisional R.C.; vii) Ex.C7 – Copy of Tax-Receipt; viii) Ex.C8 - Copy Legal Notice and ix) Ex.C9 - Postal-Receipt; x) Ex.C10 – Payment Confirmation & Inspection Report by Ajay Service Station that the Tyre Rims are not of Standard Size and the defect results into bursting of the Tyres; alongwith Rejoinder.
5. Upon notice/summoning by the commission, the opposite party 1 and 2 Vendors appeared through their counsel and filed the written reply comprised of the preliminary as well other (on-merit) objections that are summarized hereunder so as to retain the original fidelity to the extent possible (feasible) as:
I) That the Forum has no territorial jurisdiction to adjudicate and put the present complaint on trial;
II) That the complainant has no cause of action cum locus-standee and he is estopped by his own acts cum conduct to file the present complaint;
III) That the complaint stands manipulated and twisted that shapes into one cock and bull story;
IV) That the complaint is bad for non-joining of necessary parties Toyota Kirloskar Motors Pvt Ltd., the Manufacturers of the Vehicle, in question;
V) That the complainant is not statutory consumer as the vehicle is registered in the name of the finance co., and used for commercial-purpose;
VI) That the complaint is not maintainable as the involved amount has been admittedly above Rs.20 Lac the thresh-hold pecuniary limit of the forum;
VII) That the complainant has been a firm and as per the settled law it can sue of be sued by two or more partners and not otherwise.
On merits, the OP vendors while repeating its preliminary objections in altered words have straightaway denied the contents of the paragraphs 1 to 5 and again 7 to 16 the last paragraph addressing these as wrong, incorrect or being matters of record only. In response to paragraph 6 of the complaint the OP vendors state having sent the Tyres for replacement to the Manufacturers Bridgestone India Pvt. Ltd., who after having examined these had over-ruled/refused replacement alleging cuts caused by foreign sharp-objects from out-side with no signs/symptoms/evidence of manufacturing defect in the Tyres. And, lastly the OP vendors have sought dismissal of the complaint with costs and have also filed in support an affidavit (Ex.OP1/A), vehicle-invoice (Ex.OP1,2/1) and the related Tyre Mfrs Reports (Ex1,2/2) dated 03.07.2018 and (Ex1,2/3) dated 03.10.2018, respectively. In the last lines at the end, the OP vendors have repeated that the forum has no jurisdiction to try the present complaint as such the same has been liable to be returned for filing at the appropriate forum at Amritsar, in the interest of justice and equity.
6. The OP3 Manufacturers were allowed to be enjoined as an opposite party at the application by the complainant during the course of the proceedings and upon being summoned vide notice they appeared through counsel who filed their written reply comprising of preliminary submissions as I) Introduction as Manufacturers of Toyota Brand Vehicles/Cars at Ramanagara (Karnataka) and represented here by its duly authorized Dy. Manager Vinay Bhagawan (who claims to be well conversant with the present complaint) vide Special Power of Attorney (Ex.OP3/1), II) the OP3 are the leading and prominent Car Manufacturers who are known for its quality and reliability and are led by the philosophy of Customer First and have a wide network of authorized dealers throughout the country; And, III) the OP3 relationship with the OP1 and the OP2 are on principal-to-principal basis who do purchase vehicles and spare-parts from the OP3 and sell the same directly to the customers and also manage all the primary and collateral related to Sales etc., and thus as an obvious corollary the OP3 are neither liable nor responsible for acts of the OP1/ OP2.
7. However, the OP3 Manufacturers have repeated the same pleadings as were raised by the OP1/OP2 during their preliminary as well as other objections, on merit, and have also produced the same documents in evidence i.e., Car Invoice (Ex.OP3/2) and the two Tyre Check Reports (Ex.OP3/3 & OP3/4) along with the affidavit (Ex.OP3/A) and praying, in the last, for dismissal of the present complaint with costs etc. and also placed on file written arguments.
8. We have carefully examined the documents/evidence produced on record (along with the scale and scope of ‘adverse inference’ for those ignored to be produced) in order to determine the respective ‘claims’ as pleaded forth by the opposing litigants in the light of the arguments as advanced by their respective learned counsels representing the two respective sides.
9. We observe that the complainant here has failed to produce any cogent evidence in support of his allegations of manufacturing defect in his Toyota Vehicle purchased from the OP1/OP2 Vendors. Somehow, he has not produced any expert-evidence of an automobile-engineer or of an auto workshop of repute, in support of his allegation of manufacturing defect in the vehicle. We observe that the one auto-workshop Vijay Service Station in its post-examination report Ex.C10 has found the sub-standard Tyre-Rims as the culprit, the cause of tyre-bursts, but there's no highlighting/furtherance stood awarded to the report by any of the parties to the present lis (law-suit).
10. We observe further the titled opposite parties in their endeavor to get the present complaint dismissed and/or transferred/relegated to Amritsar forum have pinned-down their total efforts on naming the assumed technical flaws sans pre-evaluation home-work. We are inclined to evaluate all these objections one by one to determine their legal-merit:
I. Territorial-Jurisdiction: In the related 1986 statute section 11 (c) awards jurisdiction where the 'cause of action' wholly or in part arises; and the applicable statute of 2019 also awards territorial jurisdiction to the place where the complainant resides or personally works for gain by virtue of its section 34 (2) (d). Here, the vehicle in question, was financed by Gurdaspur Branch of Canara Bank and the payment made at Gurdaspur; the vehicle was in use at Gurdaspur, its tyres burst at Gurdaspur, defect detected/examined at Gurdaspur so the statutory- jurisdiction gets bestowed upon both the foras at Gurdaspur as well as that at Amritsar.
II. Cause of Action: The manifestation cum detection of 'defect' in the purchased car through repeated bursting of tyres provide the requisite cause of action.
III. Bad for non-joining of necessary parties: The complainant had enjoined Toyota as the opposite party/respondent vide an application as such the opposite parties had been at liberty to apply for enjoining a necessary party qua their own requirement.
IV. Pecuniary-Jurisdiction: Presently, the District Commissions do have the adjudicatory jurisdiction (Section-34) to entertain and hear complaints where value of goods and services do not exceed Rupees fifty lacs subject to other provisions of the Act.
V. Commercial-purpose: The opposite parties have failed to file some cogent evidence on records that the vehicle was purchased for exclusive use in the finance- business of the owner-company and not for personal/family use of its directors/officers etc. We have respectfully perused the state commission judgments on the subject as has been duly quoted by the OP but these do not assist them either in any way.
VI. Complainant a Limited Liability Company and not a Partnership Firm: That the OP have wrongly envisaged the complainant as a partnership firm whereas it has been a limited liability company that can be sued and in turn be sued in its own name being a juristic person through any of its director authorized for the purpose.
VII. Complaint a manipulated and twisted cock-n-bull story: Well the parties are at liberty to comment the related situations in line with their exposure n experience, in their own words however it may be understood that these expressions do not leave the least bearing upon the finals.
11. Lastly, we observe that the complainant as well as the titled opposite parties have neither contested nor took any note/notice of the quality-cum-standard of the Rims used in the Car/Vehicle as duly high-lighted/marked in the report (Ex.C10) of the modest auto workshop. However, we are of the considered opinion that no harm shall come if the Tyre Rims are examined by an automobile engineer of good standing and repute.
12. In the light of the all above, we ORDER disposal of the present complaint in the manner that the complainant shall get his Tyre Rims examined/tested/inspected from an automobile engineer and get these replaced, if reported of sub-standard quality, with one standard quality rims in line with the grace and majesty of his luxury vehicle at his own cost and expense and mail/forward the report and bills of rims, if got replaced, to the OP1 /OP2 vendor through India Post (speed post) within 45 days of the receipt of the certified copy of these orders, otherwise he shall loose his entitlement under the present award; and we hereby further ORDER the OP1/the OP2 vendors to get the defective Tyres of the vehicle replaced with new fresh Mansfield Tyres, free of cost/expense at the complainant's site in Gurdaspur within 45 days of receipt of the said report/documents from the complainant vide India Mail speed post otherwise they shall pay an additional sum amount of Rs.10,000/- as damages with 6% interest w.e.f. the date of institution of the complaint. The parties shall themselves bear the costs of the present litigation.
13. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
14. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (B.S.Matharu)
SEP. 09, 2022. Member.
YP.
