BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 23 of 2016.
Date of Institution : 19.1.2016
Date of Decision : 10.03.2017
Saroj Kumar son of Shri Hira Singh, resident of Arya Nagar, Bhiwani, Tehsil and District Bhiwani.
….Complainant.
Versus.
1. M/s Garg Motors, Dealer Mahindra & Mahindra through its proprietor, at Hisar road, Sirsa.
2. Mahindra & Mahindra Ltd., Sector -5, 11 E, SIDCUL, Haridawar- 249403
..…Opposite Parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI S.B.LOHIA ………………………..PRESIDENT.
SHRI RANBIR SINGH PANGHAL ……MEMBER.
Present: Sh. G.K.Sharma, Advocate for the complainant.
Sh. A.K. Gupta, Advocate for opposite party no.1.
Opposite party no.2 exparte.
ORDER
In brief, the case of the complainant is that complainant being in hard need of vehicle Bolero Jeep purchased the same from opposite party no.1 vide sale certificate dated 3.9.2014 against the payment of Rs.6,05,574/- and said vehicle was hypothecated with Cholamandalam Investment Finance Company Ltd. At the time of purchase of the vehicle, the op no.1 on behalf of op no.2 assured the complainant that in case the complainant uses the said vehicle as Maxi-cab and furnishes the documents with the op no.1 within period of 90 days, then he would be entitled for the refund of 10% amount out of the total price of the vehicle. The complainant in due compliance of the directions issued by op no.1 got registered the vehicle with Regional Transport Authority, Bhiwani and the endorsement with regard to the vehicle as tourist Maxi cab was got incorporated on the registration certificate. The complainant also furnished all the relevant documents with the op no.1 within stipulated period of 90 days and op no.1 assured him that they will forward the said case of complainant before the company and very soon he would be paid the refund of 10% out of total price of the vehicle. The complainant took the rounds in the office of op no.1 time and again but all in vain. It is further alleged that after that the ops have repudiated the claim of complainant on the false ground that period of 90 days have been calculated from the excise gate pass of the company whereas neither such condition was ever explained to the complainant by op no.1 nor any such condition has been mentioned in the sale invoice. Now the ops just in order to withheld the genuine claim of complainant has taken false stand of period from the excise gate pass of the company. The complainant took the delivery of the vehicle only on 3.9.2014 and thereafter he got completed all the proceedings regarding registration of the vehicle as well as the insurance and after completing all the formalities, he has submitted the documents and claimed the refund of 10% amount of the bill which is legally payable by the ops but now they have refused to redress the grievance of complainant by taking false stand. The ops have wrongly withheld the refundable amount of Rs.60,557.40/- and as such he is entitled for the said amount alongwith interest @2% per month from the date of its payment till the date of actual realization besides compensation for harassment. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections that complaint does not fall within the purview of Consumer Protection Act; that this Forum has no jurisdiction to entertain the present complaint and that complainant is estopped by his own act and conduct to file the present complaint. It has also been submitted that the answering op never charges any excise duty nor the excise duty is payable by the answering op in any way. The exemption if any granted to the vehicle registered as taxi is to be granted by the Central Excise Department and as such the matter is between the complainant and the Central Excise Department and does not relate to the answering op. The answering op has never undertaken to refund the excise duty paid by the manufacturer to the Central Excise Department. So, the complaint is also bad for mis-joinder and non joinder of necessary parties. It has been further submitted that at the time of purchase of the vehicle by the complainant it was made clear to him that the vehicle in question was delivered vide excise gate pass on 31.3.2014 by Mahindra and vehicle was sold on 30.9.2014 and as such he shall not entitled to refund of any excise duty even if the vehicle was registered as a taxi. The complainant had purchased the vehicle with this understanding that he was not entitled to the refund of any claim of excise duty. However, later on the complainant after getting the vehicle registered on 5.11.2014 asked the answering op to forward the claim with Mahindra and Mahindra as it is. So the answering op simply forwarded the claim to Mahindra and Mahindra which was rejected on the ground that the vehicle was not registered within 90 days from the excise gate pass date and as such the answering op informed the complainant accordingly. The complainant has filed a complaint before the Permanent Lok Adalat. The evidence was led by both the parties and the case was fixed for arguments. The Permanent Lok Adalat had pointed out that the matter relating to subsidy cannot be entertained and as such complainant simply opted to withdraw the complaint and has filed the present complaint which is also not maintainable. It has also been submitted that it is incorrect that answering op ever assured the refund of 10% of total price. The excise duty is much less than that and the same is around Rs.20,000/- to Rs.25,000/-. With these averments, dismissal of complaint has been prayed for.
3. None appeared on behalf of op no.2 despite notice and as such op no.2 was proceeded against exparte.
4. By way of evidence, complainant produced his affidavit Ex.CW1/A, affidavit of Pawan Kumar Ex.CW2/A and copies of documents Ex.C1 to Ex.C18. On the other hand, op no.1 produced affidavit Ex.R1.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. To decide the present complaint, first of all we have gone through the definitions contained in Section 2 of the Consumer Protection Act, 1986 for the purpose of maintainability of present complaint before this Forum. In Section 2 (1) (d) of the Act, it is clearly mentioned that a person purchases goods for commercial purpose is not a consumer subject to exceptions of earning his livelihood by means of self employment. In the present complaint or in the evidence adduced before this Forum, the complainant has nowhere stated that the vehicle was being used by him to earn his livelihood by means of self employment. As such complainant does not fall under the definition of the consumer as explained in Section 2 (1) (d) of the Act.
7. Now coming to the other aspect of merits of the case, it is clear that if any concession in excise duty was to be given to the complainant that was to be granted by the Central Excise Department and no money/ concession was to be granted by present ops and complainant has failed to implead the concerned department as a party in the present complaint. It is the case of the op no.1 that it simply forwarded the matter to the higher authorities for granting concession who after consideration repudiated the claim on the ground that vehicle has not been registered within the period of 90 days from the date of gate pass. Moreover, it is not proved on the case file that ops have ever given any undertaking to the complainant for refund of the excise duty. As such in our view, present complaint against the ops is not maintainable from any corner.
8. Resultantly, the present complaint is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. President,
Dated: 10.3.2017. Member. District Consumer Disputes
Redressal Forum, Sirsa.
