Haryana

Karnal

CC/340/2020

Mehar Singh - Complainant(s)

Versus

Dhingra Trucking Private Limited - Opp.Party(s)

Kawal Sandhu

14 Jun 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 340 of 2020

                                                        Date of instt.02.09.2020

                                                        Date of Decision: 14.06.2024

 

Mehar Singh son of Shri Tahal Singh, resident of Kharak Gadian, District Jind-Haryana.

                                                                        …….Complainant.                                             Versus

 

1. Dhingra Trucking Pvt. Ltd. G.T. Road, Ghauranda , Karnal, Haryana.
2. Sri Harsha Trucking Private Limited, Hyderabad, 1-20/Sr, D-4, Sahithi Residency Kothaguda, Kondapur, Hyderabad, Telangana, India.
3. Daimler India Commercial Vehicles Pvt. Ltd., 1^st floor, Tower-B- Tek Meadows, no.51, Rajiv Gandhi Salai, Sholinganallur, Chennai, India.

                                                                 …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.      

      Sh. Vineet Kaushik…….Member

      Dr.  Suman Singh…..Member

 

 Argued by: Shri Kawal Sandhu, counsel for the complainant.

                    OP no.1 exparte (vide order dated 05.06.2023)

                    Shri P.Vinay Kumar, counsel for the OP no.2.

                    Shri Amish Goel, counsel for the OP no.3

 

                     (Jaswant Singh, President)

ORDER: 

 

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that on 11.06.2018, complainant bought a truck of make Bharat Benz 3123 R having chasis no.MEC2976CDJP060813 & Engine no.400952D0060641 from OP no.1 for a sum of Rs.31,28,050/-. The said truck was financed from the HDB Financial Services Limited with monthly EMI of Rs.87,977/- per month. The said truck was manufactured by the OP no.3. The complainant is a National Permit Holder and has obtained a National Permit valid for all over India since 04.07.2018 to 03.07.2023. On 03.10.2019, the truck of the complainant was traveling from Chennai to Uttar Pradesh, in Kurnool, Andhra Pradesh, some technical fault arose in the Engine of the truck an amount of Rs.3633/- was spent by the complainant in getting the engine of the truck fixed and thereafter on 07.10.2019, while the truck was crossing Hyderabad again some mechanical fault arose and the truck came to a halt. On the same day i.e. 07.10.2019, the complainant communicated with the OP no.1 about the problem and OP no.1 asked the complainant to take the truck to the service station of OP no.2 in Hyderabad and to the utter shock of the complainant, the OP no.2 prepared an estimate of Rs.2,28,123/- for the repair of the truck. The truck of the complainant was duly insured with the National Insurance Company Ltd. Apart from the insurance, the truck of the complainant was having a valid warranty for the period of 24 months or 2 lakh kilometers and the warranty for the engine and transmission was for a period of 48 months or 4 lakh kilometer, whichever occurs earlier from the date of sale. When complainant reached Hyderabad in the second week of October 2019, he requested the OP no.2 to repair the engine of the vehicle which was covered in the warranty but OP no.2 clearly denied to repair the alleged vehicle and also asked the complainant to pay a sum of Rs.2,28,123/- for repairs. Complainant again approached the OP no.2 in the second week of November 2019 and again requested them to repair his truck but this time OP no.2 asked for an amount of Rs.2,28123/- for repair and an additional amount of Rs.75000/- as rent for the parked truck and since then the OP no.2 is not releasing the truck for which complainant has suffered huge losses as below:

1. The truck was carrying the Papaya fruit worth Rs.4,66,628/- from Andhra Pradesh to Uttar Pradesh and being a perishable item, the entire stock of fruit was destroyed.
2. The complainant got financed the said truck from HDB Financial Services Limited with a monthly EMI of Rs.87,977/- per month and due to loss of income since October 2019, the complainant has not been able to pay the EMI for which the HDB Financial Services Ltd. has now opted to drag the complainant in litigations.
3. The complainant has suffered huge financial losses and clientage which were based on the running of the truck which is in the illegal custody of OP no.2 as the complainant is a transporter and earns his bread and butter from the truck only.

            Since the truck was still under warranty, the OP was legally duty bound to repair the truck free of cost and since they categorically denied to release the truck of the complainant, they were not entitled to the additional charges of Rs.75000/-. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence, complainant filed the present complaint seeking direction to the OPs to replace the truck with a new truck since the truck is having a manufacturing engine defect, to direct the OP no.3 to release the truck after repairs free of cost being under warranty, to pay Rs.15,00,000/- as compensation/damages for loss of income, destruction of papaya fruit, harassment, causing mental agony and inconvenience and to pay Rs.1,00,000/- as litigation expenses.

2.             On notice, OPs no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi; jurisdiction and concealment of true and material facts. On merits, it is pleaded that before purchasing the vehicle, the complainant has taken a test drive of the vehicle and had understood in detail the specifications of the vehicle and after being fully satisfied with the performance, functions, specification and terms and conditions of after sales services of the vehicle, he purchased it. It is further pleaded that the defects, if any, covered by the terms of warranty the same are the liability of the OP no.3 but the OP has no knowledge about the physical condition of the vehicle in question. It is strongly opposed that the OPs are responsible for any kind of loss to the goods/stock carried in the vehicle. The OP no.1 has no liability to the abovesaid repair and payments as the vehicle in question is standing in the workshop of OP no.2. Furthermore, there are no manufacturing defects in the vehicle in question and hence question of liability of OP no.3 does not arise. There is no deficiency in service and unfair trade practice on the part of the OP no.1. the other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written version stating therein that OP no.2 service centre is located in Kurnool as vehicle of complainant broke down near Kurnool and OP no.2 repaired the vehicle and total bill amount was Rs.3633/-. At the spot of the breakdown of the vehicle, it was found that fuel tank of vehicle was not having fuel tank lid and it just had a plastic cup which covered the fuel tank in let. The water might have got mixed in the Diesel and suggested the driver of the vehicle namely Jitender Singh to get the vehicle fuel supply, the fuel tank and engine checked and cleaned, thoroughly at OP no.2. The driver of the vehicle refused and said that his owner will get it checked and cleaned from whom he had purchased the subject vehicle. At this stage, the technicians of the OP no.2 fixed a lid to the fuel tank in-let and sealed it by tying a cloth around the lid and replaced the damaged fuel filter cartridge and its related parts with brand new one’s as shown in the invoice. The odometer reading as per the invoice was 108356. It is further pleaded that vehicle had a break down again at odometer reading 108545 which is 190 Kms after replacing fuel filter cartridge and its related parts. The complainant contacted the OP no.2 service centre located in Hyderabad and OP no.2 found fungal infection in the water separator, diesel filter and rust in the diesel tank and replaced the faulty injector nozzles and unit pumps alongwith removing the fuel tank and internal cleaning of the fuel tank, vide job card JBC01010B1904326. OP no.2 suggested the driver not to drive the vehicle further and to get the vehicle fuel supply, fuel tank and engine checked and cleaned thoroughly at the service centre of OP no.2. But the driver of the complainant did not follow the suggestion given by the technician of OP no.2 and drove the vehicle to the service centre and left it in the premises of OP no.2. It is further pleaded that OP no.2 after thorough analysis had prepared an estimate and had informed to Zameer, who is Senior Manager  from Customer services Department of OP no.3 by sending an email on 12.09.2019 alongwith attaching the estimate besides describing the total scenario to him as it’s the  OP no.3 who can decide on the warranty related claims. OP no.2 had sent another email dated 22.09.2019 to Zameer of OP no.3 attaching PCR Format excel spread sheet which contained the complaint details alongwith Trouble shooting details and photographs of fungal infection in the Water Separator, Diesel filter and rust in Diesel Tank. As there was no response from the complainant,  OP no.2 contacted G.M. of OP no.1 by an email dated 25^th October, 2019 and requested him to speak with the customer and do the needful to clear the decomposed load from the vehicle. Finally, on 1^st November 2019, Zameer from OP no.3 sent an email chain in which there was an email from J.P. Garg of OP no.1 to OP no.3 stating that “Customer Driver will start from New Delhi by train and he will reach by day after tomorrow for further course of action.” The driver of complainant swiped his card on 31.10.2019 at the service centre of OP no.2. At this stage, the staff of OP no.2 requested the driver to clear the decomposed load from the vehicle for which the driver did not pay any heed. Hence, the complaint qua OP no.2 is liable to be dismissed. It is further pleaded that Sub Inspector of Police From Y.S. R Kadapa District Andhra Pradesh had sent a letter to OP no.2 and suggested that to keep the Crime Vehicle bearing no.HR 56 B 8315 with OP no.2 and directed not to release the said vehicle to anyone without his permission. There is no deficiency in service and unfair trade practice on the part of the OP. the other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.3 filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi; jurisdiction and concealment of true and material facts. On merits, it is pleaded that in the present complaint, complainant is not a consumer as envisaged in Section 2(7) of the Consumer Protection Act, 2019. Admittedly, the vehicle in question was purchased by the complainant for commercial purpose for running a transport business. It is further pleaded that the vehicle purchased by the complainant is a well-established product in the market and over a period of times, the consumers are using the said vehicle and the complainant had purchased the same, after being satisfied with the condition of the same and its performance. All the products manufactured by the OP no.3 are marked only after the prototype of the same is being approved by the appropriate authority. All the vehicles manufactured by the OP are put through stringent control system, quality checks and tests by the country quality department before being cleared for dispatch to the market. The complainant has filed the baseless and frivolous complaint alleging that the vehicle in question is defective, without producing any expert opinion in the form of evidence from a notified laboratory to prove that the vehicle is having the problem as alleged, or to establish any defect. The allegations of the complainant in absence of an expert report, are unproven and the instant complaint deserves to be dismissed. It is further pleaded that complainant has averred that the alleged repair which is required by the vehicle in question is covered under warranty. In this regard, it is stated that the same is patently incorrect on two accounts as summarized below:

a.     Firstly, the defect in the vehicle is not covered under warranty (water was found to be mixed in the Diesel tank of the vehicle, hence the components of the vehicle which failed were not covered under warranty).

                The factual matrix leading to the filing of the present complaint is vital and the same is enumerated as below:

        On 03.10.2019, the vehicle in question was reported to have breakdown to the OP no.2 Shri Harsha Trucking Private Ltd. Kurnool branch with the problem that the vehicle was not starting by the driver. Due attention was given by the said dealer/OP no.2 at the breakdown location. Engineers and trained mechanics of the said OP no.2 investigated the issue and found out “lot of water inside the diesel tank”. Due to presence of water in the fuel tank, the primary fuel filter housing leaked and resultantly the fuel filters had to be replaced in order to start the vehicle in question. Upon informing the driver and after obtaining his consent, the fuel pre-filter with water separator and fuel element were replaced and the vehicle was started. The driver and the customer were duly informed that the entry of water in the fuel system would have affected other parts as well and the same needs to be thoroughly checked at the service centre as the same may cause performance issues. It is further alleged that on On 07.10.2019, the driver of the vehicle in question namely Jitender Singh again reported breakdown with OP no.2 Shri Harsha Trucking Private Ltd. Hyderabad branch with the problem that the vehicle was not getting started. Due attention was given by the said dealer/OP no.2 at the breakdown location. Engineers and trained mechanics of the said OP no.2 investigated the issue and again found out “trace of water in the fuel” and hence suspected the fuel system components to have failed due to water alongwith fuel in the fuel tank. Resultantly, the OP no.2’s engineering team used “float” unit pumps and injections to check the engine of the vehicle. The engineers suggested the driver to shift load to some other vehicle, however the same was refused by the driver. The vehicle was then brought to OP no.2 dealership at Hyderabad as complete fuel system cleaning replacement of some parts was required. After due inspection at the service dealership, the said OP no.2 rectified filter house and sought approval for conducting repair and changing parts on account of Alternator not charging. Low pick up, Nozzles check up Rear RH Wheel Bolt, disc, hub check up, fuel tank cap replace and unit pump check up, which were refused by the driver. Since the reason for failure was not warrantable and the repair and parts could not be changed under warranty as per the terms and conditions of warranty, the said OP no.2 dealer tried seeking customer approval apprising him about the estimate of repair and replacement of parts on chargeable basis, however till date the same has not been received. PCR Details were prepared with regard to the breakdown in question and complete report was prepared including the photographs of the vehicle and parts including that of the odometer. The said report duly envisaged which substantiate and evidentiates:

1. Fuel Filters to be clogged.
2. Fuel tank being found with fuel contaminated with water,
3. Presence of rust particles in fuel tank.
4. Cut off test confirming the fact that fuel injectors seized due to water entry;
5. Photographs of the vehicle and its repair having traces of water, fuel contaminated with water etc.

        Pertinently, the warranty of the vehicle is subject to the terms and conditions envisaged in the “Terms of Warranty” duly provided and admitted by the complainant as per the averments in the complaint. It is evidently clear that the problem in the vehicle has arisen due to presence of water in the fuel, which has resulted into seizing of fuel injectors pump and other parts. Due to water ingress in the fuel tank, which is only attributable to the complainant and his drivers who are using the vehicle, the vehicle has broken down and is in need for change of parts. The breakdown, repair and change of parts was the result of complainant’s own misuse, negligence, improper and inadequate maintenance due to which the water had entered the fuel tank and had been consistently present, as is evident from above that on two occasions water has been found, and damage caused by it is not covered under warranty, as per the terms and conditions governing the warranty as per Terms of Warranty. The said repair and change of parts are to be borne and paid by the customer, which was duly informed, however, the complainant himself never came forward to confirm the estimate and give confirmation for the same. Hence, the claim of the complainant that the repair and replacement of parts of the vehicle in question are covered under warranty is tenable in the eyes of law. It is further pleaded that the warranty is applicable only if the vehicle is regularly serviced as per the service instruction manual provided at the time of sale of the vehicle. The vehicle has not been serviced as per the prescribed schedule of OP no.3. The service of the vehicle was due at 1,00,000/- km but the complainant did and not get its regular service condone which was to be got done within a range of 99500 KM to 100500 KM as per the prescribed service schedule. Evidently, KM reading on the odometer of the vehicle was 1,08,545 KM as is evident from job-cards and photographs attached with PCR Details, Service History of the vehicle in question. Therefore, the vehicle in question is not liable for any claim of warranty as per the Terms of warranty. There is no deficiency in service and unfair trade practice on the part of the OP. the other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Parties then led their respective evidence.

6.             Complainant has tendered into evidence his affidavit Ex.CW1/A, copy of invoice Ex.C1, copy of permit form 47 Ex.C2, copy of permit form Part-A and B Ex.C3 and Ex.C4, copy of bill Ex.C5, copy of estimate Ex.C6, copy of insurance policy Ex.C7, copy of service manual Ex.C8, copy of invoice Ex.C9, copy of demand notice Ex.C10, copy of notice of arbitration Ex.C11, copy of Registration Certificate Ex.C12 and closed the evidence on 21.11.2022 by suffering separate statement.

7.             On the other hand, On 05.06.2023 none has appeared on behalf of OP no.1 nor tendered its evidence despite availing several opportunities including one last opportunities. Hence, OP no.1 was proceeded against exparte, vide order dated 05.06.2023 of the Commission.

8.             Learned counsel for the OP no.2 has tendered into evidence affidavit of V.Parveen Kumar Ex.OP2/A, cop of invoice Ex.OP2/1, copy of job card Ex.OP2/2, copy of emails Ex.OP2/3 to Ex.OP2/5, copy of tax invoice Ex.OP2/6, copy of PCR (product concern report) details Ex.OP2/7, copy of estimate for damage parts Ex.OP2/8, photographs Ex.OP2/9, copy of letter from Sub Inspect of Police Department Ex.OP2/10, copy of intimation letter to the customer Ex.OP2/11, copy of registered post booking slip with delivery Ex.OP2/12, copy of legal notice Ex.OP2/13, copy of registered post booking slip with delivery Ex.OP2/14 and closed the evidence on 05.06.2023 by suffering separate statement.

9.             Learned counsel for the OP no.3 has tendered into evidence affidavit of Mr. Vijaya Baskar Ex.OP3/A, copy of job card and invoice dated 03.10.2019 Ex.O3/1, copy of job card and estimate dated 07.10.2019 Ex.O3/2, copy of PCR report and photographs Ex.O3/3, copy of terms of warranty Ex.O3/4, copy of schedule Ex.O3/5, copy of service history of vehicle ExO3/6, copy of schedule Ex.O3/7, copy of service history of vehicle Ex.O3/8 and closed the evidence on 11.04.2023 by suffering separate statement.

10.           We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

11.           Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that complainant on 11.06.2018, purchased a truck from OP no.1 for a sum of Rs.31,28,050/-. On 03.10.2019, there was a breakdown in the truck of the complainant and under the intimation of OP no.1, the complainant took the truck to the service station of OP no.2 in Hyderabad. Complainant requested the OP no.2 to repair the engine of the vehicle which was covered in the warranty but OP no.2 clearly denied to repair the vehicle and also asked the complainant to pay a sum of Rs.2,28,123/- for repairs and an additional amount of Rs.75,000/- as rent for the parked truck. When the complainant asked to replace the truck under warranty, then the OP no.2 did not release the truck for which complainant has suffered huge losses. Since the truck was still under warranty, the OP was legally duty bound to repair the truck free of cost but OP did not do so and lastly prayed for allowing the complaint.

12.           Per contra, learned counsel for the OP no.2, while reiterating the contents of written version, has vehemently argued that the fuel tank of vehicle was not having fuel tank lid and it just had a plastic cap which covered the fuel tank in let. The water might have got mixed in the Diesel. OP no.2 found fungal infection in the water separator, diesel filter and rust in the diesel tank and replaced the faulty injector nozzles and unit pumps alongwith removing the fuel tank and internal cleaning of the fuel tank. There is no deficiency in service on the part of the OP and lastly prayed for dismissal of the complaint.

13.           Learned counsel for the OP no.3, while reiterating the contents of written version, has vehemently argued that                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 complainant is not a consumer as envisaged in Section 2(7) of the Consumer Protection Act, 2019. The vehicle in question was purchased by the complainant for commercial purpose for running a transport business. The problem in the vehicle has arisen due to presence of water in the fuel, which has resulted into seizing of fuel injector’s pump and other parts. The warranty is applicable only if the vehicle is regularly serviced as per instruction manual provided at the time of sale of the vehicle. The vehicle has not been serviced as per the prescribed schedule of OP no.3 and lastly prayed for dismissal of the complaint.

14.           We have duly considered the rival contentions of the parties.

15.           Admittedly, complainant has purchased a truck from OP No.1. It is also admitted that some technical fault arose in the engine of the truck and the same was taken to the service station of OP No.2 at Hyderabad.

16.           The OP No.3 has alleged that the vehicle in question was being used by the complainant for commercial purpose. The onus to prove its version was relied upon the OP No.3, but OP No.3 has miserably failed to prove its version by leading any cogent and convincing evidence that the vehicle was being used for commercial purpose.  In this regard, we placed reliance upon the case law titled as M/s Prabhu Dayal Trilok Chand Versus Oriental Insurance Company Limited and Anr. in consumer case no.908 of 2016 decided on 24.05.2022 of Hon’ble National Commission wherein the Hon’ble National Commission held that a contract of insurance is a contract of indemnity and, therefore, there is no question of commercial purpose in obtaining insurance coverage. The complainant is a consumer and the complaint is maintainable. Further, in case titled as M/s Paramount Digital Color Lab and Ors etc. Versus M/s Agfa India Pvt. Ltd. and Ors. etc. in civil appeal nos. 2109-2110 of 2018 decided on 15.02.2018 wherein the Hon’ble Supreme Court held that if person purchases goods for commercial purpose and such commercial purpose is for earning livelihood by means of self employment-Such person will come within definition of consumer-Appellant purchased machine for self employment- Quality of ultimate production of machine depends upon skill of person who uses machine-In case of exigencies, if person trains another person to operate machine so as to produce final product based on skill and effort in matter of photography and development, same cannot take such person out of definition of consumer.  In view of the ratio of the law laid down in the aforesaid judgments, facts and circumstances of the case, the present complaint is maintainable before this Commission.  Hence, plea taken by the OP has no force.

17.           The OPs have also alleged that on 07.10.2019, the driver of the vehicle in question namely Jitender Singh second time reported breakdown of truck to the OP no.2. Engineers and trained mechanics of the said OP no.2 investigated the issue and again found out “trace of water in the fuel” and hence suspected the fuel system components to have failed due to water alongwith fuel in the fuel tank. Resultantly, the OP no.2’s engineering team used “float” unit pumps and injections to check the engine of the vehicle. The onus to prove its version was upon the OPs and in order to prove its case, the OPs have tendered into evidence invoice Ex.OP2/1, job card Ex.OP2/2, extract of e-mail with regard to breakdown Ex.OP2/3, Ex.OP2/4, Ex.OP2/5, invoice Ex.OP2/6, PCR details Ex.OP2/7 and photographs of the vehicle Ex.OP2/9. On perusal of the aforesaid documents and photographs, it has been proved that fuel tank of vehicle was not having fuel tank lid and it just had a plastic cap which covered the fuel tank in let and there was fungal infection in the water separator, diesel filter and rust in the diesel tank. It is proved that the defect has arisen due to presence of water in the fuel, which resulted into seizing of fuel injectors pump and other parts which is due to the fault/negligence of complainant as he did not maintain his vehicle properly.

18.           The complainant has alleged that the fault has arisen under warranty, therefore, the OPs are bound to repair the vehicle free of costs. The warranty of the vehicle is subject to the terms and conditions envisaged in the “Terms of Warranty”. It has been proved that the defect in the vehicle has arisen due to presence of water in the fuel, which has resulted into seizing of fuel injectors pump and other parts and the reason for the same is that the complainant was not timely servicing his vehicle thus, the defect is not covered under warranty, as per the terms and conditions. Thus, there is no deficiency in service and unfair trade practice on the part of OPs.

19.           Thus, as a sequel to abovesaid discussion, the present complaint is devoid of merit and deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Dated:14.06.2024

                                                                     President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

                (Vineet Kaushik)                (Dr. Suman Singh)

                     Member                               Member