Haryana

Kurukshetra

134/2017

Pappu Ram - Complainant(s)

Versus

Gaurav Automobiles - Opp.Party(s)

Rahul Sharan

05 Feb 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL COMMISSION, KURUKSHETRA.

 

Complaint Case No.134 of 2017.

Date of instt: 05.07.2017. 

                                                                        Date of Decision: 05.02.2021

 

Pappu Ram son of Sh. Chunni Lal, resident of village Samaspur, Tehsil Thanesar, Distt. Kurukshetra.

 

                                                ……..Complainant.

                        Vs.

 

1. M/s Gaurav Auto Mobiles, Indersain colony, near Tej Partap tank, Thanesar, Distt. Kurukshetra through its Prop.
2. Suraj Bhan, office near 3^rd gate, Pehowa Road, Kurukshetra, agent of OP no.1.
3. Soni E-vehicle Pvt. Ltd. Plot No.14/6, Site IV, Sahibabad, Ghaziabad (UP), through its Managing Director.
4. United India Insurance Company Ltd. Railway Road, Kurukshetra, through its Branch Manager.

 

..………Opposite parties.

 

                Complaint under section 12 of Consumer Protection Act.   

 

 

Before       Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Shri Issam Singh Sagwal, Member.                   .

 

Present:     Sh. Rahul Saharan, Legal Aid Counsel for complainant.

Ms. Purnima Malhotra, Advocate for opposite party no.4.

Opposite parties no.1 to 3 ex-parte.   

ORDER     

 

                   This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Pappu Ram against M/s Gaurav Auto Mobiles and others, the opposite parties.

2.            Brief facts of the present complaint are that complainant was in need of a Soni E-vehicle rickshaw for running his livelihood and he approached op no.2 and op no.2 got opened an account in the Allahabad bank at Kurukshetra and said op no.2 got sanctioned a loan of Rs.1,00,000/- from the said bank and the said bank paid the said amount of Rs.one lac to OP no.1. The complainant got the said vehicle and there was a condition that the complainant will return the loan in installments to the tune of Rs.2200/- every month. The complainant also deposited down payment of Rs.24,500/- with the said bank as the price of the said vehicle was Rs.1,20,000/-. There was guarantee of said vehicle for one year. It is further averred that after one month from the date of purchase of said vehicle, it came to the knowledge of complainant that the motor and battery, nut bolt and brakes etc. are totally defective and said vehicle suddenly stops at any place and suddenly starts. That thereafter the complainant approached the ops many times and requested them to change the same with new one as there are so many defects in the said vehicle, but the ops were putting of the matter on one pretext or the other and now the said E-vehicle rickshaw is still standing without any work. That complainant also moved applications to Deputy Commissioner, Kurukshetra, Hon’ble Chief Minister, Haryana and also on CM window but to no effect. Hence, this complaint. Thus, the complainant has filed the present complaint alleging deficiency in services on the part of the OPs and prayed for refund of the cost of the auto rickshaw alongwith compensation.

 

3.             On notice, opposite party no.1 failed to appear and was proceeded against ex-parte vide order dated 24.04.2018,

 

4.             Initially, ops no.2 and 3 appeared through counsel and sought adjournments for filing written statement but did not file the same and their defense was struck off and ultimately none appeared on behalf of OPs, therefore, right of OP No.2 and 3 was struck off vide order dated 25.10.2018.

 

5.             The OP  no.4 appeared and filed written statement raising certain preliminary objections that complaint is legally not maintainable and is liable to be dismissed with costs; that complainant has no locus standi to file and maintain the complaint; that complainant has no cause of action to file and maintain the present complaint. In the entire complaint, the complainant has failed to disclose the cause of action to file the present complaint against the answering op, that complainant is stopped from filing the present complaint against the answering op, that complainant never approached to the answering op prior to filing of present complaint and as such the present complaint is a pre-mature complaint and is liable to be dismissed; that complaint is bad for mis joinder and non joinder of necessary parties. It is further submitted that there neither happened any death, injury to person, nor occurred any damage in any accident. So, as per Section 147 (ii) of the M.V. Act, no liability can be fastened upon the insurance company and the insurance company is not liable to indemnify any loss (if any) caused to the complainant. On merits, it is submitted that in case of any kind of manufacturing defect in the machinery automatically, then the answering op cannot be compelled for grant of any compensation and is not covered under the terms and conditions of the contractual liability of insurance company. Lastly it is submitted that this Forum has no jurisdiction to entertain, try and decide the present complaint. Moreover, the alleged e-rickshaw was purchased by complainant for commercial purpose and the person who purchased any machinery for commercial purpose does not fall within the ambit of the consumer. With these averments, dismissal of complaint prayed for.

 

6.             The complainant has tendered affidavit Ex.CW1/A and documents Ex.C1 to Ex.C17. On the other hand, op no.4 tendered affidavit Ex.RW1/A.

 

7.             We have heard learned counsel for complainant as well as learned counsel for op no.4 and have perused the case file carefully.

 

8.             The learned counsel for the  OP no.4 has argued that the vehicle was insured with the OP No.4 but defect if any in the said vehicle are not covered under the insurance policy, because neither it is a theft case nor the vehicle was damaged in the accident and as such no liability can be fastened upon the OP No.4.

                We find force in the argument advanced on behalf of OP No.4.Admittedly, the e-rickshaw in question was insured with the OP No.4 but  the damages in the vehicle are not accidental and as such OP No.4 cannot be held liable for its repair or replacement.

 

9.             The learned counsel for the complainant has argued that while filing the present complaint, the counsel  for the complainant left to mention some real facts in the complaint and he had filed the application for amendment of the complaint but this Commission was pleased to dismiss the said application. It is argued that even if the application for amendment of the complaint was dismissed but the facts mentioned in the application can be considered as argument on behalf of the complainant. It is argued that name of owner in the sale certificate Ex.C5 has been wrongly mentioned as Narender Kumar whereas in actual it is complainant Pappu Ram and the manufacturer area is 2015 instead of 2016, The complainant has taken loan/finance from Allahabad as is evident from Ex.C-11 but this fact has not been mentioned in the insurance policy Ex.C-2. It is further submitted that registration certificate has not been given by the OPs to the complainant.  It is further argued  that the   complainant was earning his livelihood through the said vehicle and the defective vehicle has been given to the complainant and the said vehicle has not been repaired or replaced by the OP No.1 to 3  and as such  an act on the part of the OPs amounts to deficiency  in services and unfair trade practice on the part of the OPs.

 

10.            We are agree with the arguments advanced by the learned counsel for the complainant. It is settled law that a person cannot be allowed to suffer due to mistake on the part of his counsel in drafting the matter. In the present case, no doubt, application for amendment of the complaint filed by the complainant was dismissed by this Commission but the argument advanced by the counsel for the complainant on the points mentioned in the said application can be considered because trail of the  complaint before this Commission is purely on summary trial basis and as per settled law points raised during the arguments can well be considered.   Vide retail invoice the complainant had purchased the said vehicle for Rs.1,20,000/-. The said vehicle was got insured by complainant Pappu Ram son of Chunni Lal from OP No.4 vide copy of insurance policy Ex.C-2.  Ex.C-4 is sale letter issued by OP No.1. Vide Ex.C-6 temporary registration number has been issued by Transport Commissioner, Haryana. As per the complainant, after the purchase of the vehicle, motor and battery, nut bolts and brakes etc. became totally defective and it used to stop at any place. The complainant approached the OPs many a times but nothing has been done. The complainant has given applications to various authorities as placed on the file and vide Ex.C-5, Addl. Deputy Commissioner, Kurukshetra also wrote Ex.C-15 to this Commission also. Thus, from the above discussion, it is established that the complainant purchased vehicle/E-rickshaw from OP no.1 to 3 for Rs.1,20,000/- and the same soon after its purchase became defective and the same was not  repaired or replaced by the OP No.1 to 3. This version of the complainant goes unrebutted and unchallenged as the OP no.1 to 3 failed to appear before this Commission and were proceeded against  ex parte. Further, from the document Ex.C-4 sale certificate, it is evident that the said vehicle was  sold to one Narender Kumar son of Jai Pal, resident of Mirzapur District Kurukshetra and in the said document model of the said vehicle  in the document Ex.C-5 i.e. Form 22, has been shown to be 2015, therefore, the OPs no.1 to 3 sold an old and used vehicle to the complainant. Therefore, deficiency in services and unfair trade practice on the part of the OP No.1 to 3  is made out and the OP No.1 to 3 found liable to refund the sum of Rs.1,20,000/- to the complainant against receipt of the damaged vehicle/e-rickshaw from the complainant.

 

11.            In view of our above discussion, we accept the present complaint and direct the OP no.1 to 3 to refund the cost of the vehicle i.e. Rs.1,20,000/- alongwith interest @ 9% per annum from the date of filing of the present complaint i.e. 05.07.2017 till its actual realization to the complainant. The complainant shall return the vehicle/rickshaw to the OP no.1. The complainant shall also be entitled for a sum of Rs.30,000/- for the mental harassment and agony caused to him. The OPs  1 to 3  are   further directed to make the compliance of this order within a  period of  45 days from the date of preparation of certified copy of this order, failing which, the complainant will be at liberty to initiate proceedings under Section 25/27 of the Act against the OPs. The complaint qua OP No.4 stands dismissed. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

 

Announced in open Commission:

Dt.:5.02.2021.                                                    (Neelam Kashyap)

                                                                             President.

 

 

(Issam Singh Sagwal),         (Neelam)       

 Member                              Member.