Punjab

Ludhiana

CC/19/29

Anil Kumar - Complainant(s)

Versus

Goyal Automotive Pvt.Ltd - Opp.Party(s)

Hemant Kalia Adv.

23 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 29 dated 09.01.2019.                                                          Date of decision: 23.01.2023.

 

Anil Kumar S/o. Radhe Sham, Proprietor of M/s. ONS Logistics India, 24, Atma Nagar, Mundian Kalan, Ludhiana                                                                                                                                                                  .…Complainant

                                                Versus

1. M/s. Goyal Automotive Pvt. Ltd., Goyal Hyundai, G.T. Road, Vil. Jugiana, Ludhiana, through its Director.
2. M/s. Hyundai Motor India limited, 2^nd, 5^th 8 6^th Floor, Corporate-I (Baa Pot No.5) Commercial Centre, Jasola, New Delhbi-110025, through its Managing Director.                                                                                                                                                                                       …..Opposite parties 

                   Complaint under Section 12 of Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Hemant Kalia, Advocate.

For OP1                         :         Sh. M.S. Sethi, Advocate.

For OP2                         :         Complaint against OP2 not admitted vide order                                                     dated 28.02.2019.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant purchased one car make Hyundai Verna CRDI S (O) 1.6 BSIV bearing registration No.PB-10DW-0486 on 02.05.2012 from opposite party No.1, an authorized dealer of opposite party No.2 for his personal use. In April 2014, on receipt of a telephonic call from opposite party No.1, the complainant sent the car for necessary service and repair and had a conversation with the Manager of opposite party No.1 with regard to defects and service but when the car was returned, he found that the problem of the car remained unresolved. Opposite party No.1 charged an amount of Rs.11,075/- through invoice dated 02.05.2018. According to the complainant, the defects were not removed and the proper service was not rendered by opposite party No.1. It was stated by the complainant that on 17.05.2018, the complainant observed noise under the bonnet and the car was towed with crain truck in order to remove the defects. Opposite party No.1 conveyed that there is a major problem in the car engine and estimate of expenses amounting to Rs.17,835/- dated 18.05.2018 was handed over to the complainant but despite this the problem was not resolved. The complainant served a legal notice upon the opposite parties through his counsel Sh. Ashwani K. Nayyar, Advocate to resolve the problem of his car free of costs and to return back the money excess charged from him illegally and further call upon them to pay an amount of Rs.1,00,000/- as compensation on account of mental pain, harassment, financial, business and agony suffered by the complainant on account of unfair trade practice and deficiency in service on the part of the opposite parties but no positive reply to legal notice was given by the opposite parties. Hence this complaint whereby the complainant sought direction to resolve the problem of his car free of costs and to return back the money excess charged from him and also to pay Rs.1,00,000/- as compensation along with Rs.20,000/- as litigation expenses.   

2.                The complaint was not admitted against opposite party No.2 vide order dated 28.02.2019.

3.                Upon notice, opposite party No.1 appeared and filed written statement assailing the complaint by taking preliminary objections that the complainant is not a consumer o under Section 2 (d) of the Consumer Protection Act. As the car in question is the name of ONS Logistics India and the same is being used in the business activities. The complaint is time barred under Section 24-A of the Consumer Protection Act as the same is not within the warranty and after the warranty, customer is liable to pay charges for the repair or services etc. Opposite party No.2 has also  assailed the complaint on the point of maintainability as the car is in the name of ONS Logistics India which is also commercial entity and even documents were attested in the being authorized signatory of ONS Logistics India and said company was the proper and necessary party in this case which was not arrayed as such, Anil Kumar is stranger and has got no locus standi to file the present complaint.  Moreover, there is no material on record to show that the said vehicle is standing idle due to any defects in the vehicle which were not removed by the opposite party. The entire complaint is silent on this aspect. The date of purchase of vehicle is 05/2012 and the same is used extensively till 05/2018 within 6 years after plying on road on covering 143132 Kms meaning thereby the daily usage of the car was 66 Kms. The opposite party No.1 further submitted that after covering such kilometers said car cannot give trouble in running the car due to expiry of life of the parts and further the said car was out of warranty and in case of requirement of parts/accessories etc. same are subject to cost as such, there is no deficiency in service on their part for charging the same on changing defective parts etc. Liability of opposite party No.1 is only limited to charge its labour charges against the changing of certain parts and it can only be sued if there is any deficiency in service in rendering services but same was not pleaded specifically that what services are not properly rendered by opposite party No.1. Opposite party No.1 further alleged that the present complaint is field on 09.01.2019 after repair on 18.05.2018 that means complainant was having sufficient time to prove that what types of defects were therein which were not removed by opposite party in 05/2018. As such, the complaint has made baseless allegations of defects without specific nature and without relying on any evidence in support of its case as required under Section 13(1) of the Consumer Protection Act and its sub clauses of the Consumer Protection Act. Opposite party further submitted that no defect of any type was pending on 18.05.2018 which required to be resolved and the complainant was required to lodge his complaint at the time of getting repair. However, the complainant has not made any complaint regarding non-performance of the vehicle and during the repair with opposite party No.1, the vehicle was taken by the complainant in satisfactory condition after paying repair charges etc. as per job cards which shows the malafide /intention on the part of the complainant.

                   On merits, opposite party No.1 reiterated the crux of averments made in the preliminary objections and has denied that there is any deficiency of service. Opposite party alleged that regarding charging of Rs.11,075/- is concerned, the same are charged against the work of changes of engine oil, bulbs, filter cartridge, filter air-cleaner, service kit oil filter (2), hose, windshield washed wheel alignment, balancing each wheel and their weight, periodic maintenance service, both front brake O/H and premium interior foam base cleaning large etc. but these are not amounts to any defects rather same are amounts towards maintenance of the car which was carried only on instruction and need of the complainant. Opposite party No.1 further alleged that the complainant has not disclosed the nature of defects which were not removed and what was the proper service which was not done. Opposite party No.1 has further alleged that it not the case of the complainant that against charging of Rs.11,075/- changes of engine oil, bubs, filter cartridge, filter air-cleaner, service kit oil filter (2), hose, windshield washed wheel alignment, balancing each wheel and their weight, periodic maintenance service, both front brake O/H and premium interior foam base cleaning large etc. were found defective rather he alleged that the defects still not removed as such which were defects which were present before changing engine oil etc. nowhere pleaded or shown by way of documents. Moreover, the complainant has not disclosed previous date of service. The date of service is 02.05.2018 which was carried at 142169 Kms and thereafter the vehicle was brought to the workshop of opposite party No.1 on 18.05.2018 at 143132 Km after plying 963 kilometer within 16 days with usage of 60 Km per day approximately. Necessary repair was carried on the instruction of the complainant while replacing first time certain parts Tensioner Assy., ribbed belt-V and outside job was also got done by the opposite party and total repair bill of Rs.17,835/- was paid by the complainant after satisfaction of the work and after taking road test. Opposite party No.1 has denied the issuance of bill No.659 dated 27.05.2019 and authorizing any one to pick up the vehicle as alleged in the bill dated 27.05.2018 which is fake and false and the same was got prepared after 18.05.2018. In the end, a prayer for dismissal of the complaint has been made.

4.                In support of his claim, the complainant tendered affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of invoice summary dated 02.05.2018, Ex. C2 is the copy of invoice summary dated 18.05.2018, Ex. C3 is the copy of cheque of RS.17,835/-, Ex. C4 is the copy of email dated 01.06.2018, Ex. C5 is the copy of bill dated 27.05.2018, Ex. C7 is the copy of registration certificate of the vehicle in question, Ex. C8  is the legal notice dated 11.06.2018, Ex. C9 and Ex. C10 are the postal receipts and closed the evidence.

5.                On the other hand, counsel for opposite party No.1 tendered affidavit Ex. DW1 of Sh. Rajesh Kumar, Manager of opposite party No.1 and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties. We have also gone through the written arguments submitted by the complainant.

7.                The complainant Anil Kumar has invoked the jurisdiction of this Commission, being the Proprietor of M/s. ONS Logistic India, 24, Atma Nagar, Mundian Kalan, Ludhiana claiming himself to be owner of the vehicle bearing registration No.PB-10DW-0486 purchased by him on 02.05.2012 for his personal use. However, invoice Ex. C1, Ex. C2 and RC Ex. C7 shows the ownership in the name of M/s. ONS Logistics India. The close scrutiny of the complaint reveals the allegations of the complainant to be of vague and incoherent in nature. The complainant is not sure of the date when the vehicle firstly developed snag and nature of the defects to be remediated by the opposite parties. Finally, we have been able to gather that the grievance of the complainant pertains to the invoice dated 02.05.2018 of Rs.11,075/-, invoice No.659 dated 27./05.2018 of Rs.1300/-, invoice dated 18.05.2018 of Rs.17,835/-. These invoices include the services charges, labour charges etc. Opposite party No.1 has candidly admitted that the amount was charged against the regular services done by the company in order to keep the vehicle in a roadworthy condition. Opposite party No.1 has refuted the contentions of the complainant that the company has overcharged him while servicing the vehicle. These invoices appear to be of normal charges and as such, the contentions of the complainant are untenable. Even otherwise, the vehicle was purchased in the year 2012 and the complaint pertains to the year 2018 after plying the vehicle for about 6 years covering a distance of 143132 kilometers. Now the services rendered by opposite party No.1 do not fall in the warranty period which had already elapsed long back. Even it can also be seen that as and when the complainant raised a complaint and contacted the service manager of opposite party No.1, they have responded promptly. As such, it cannot be said that opposite party No.1 was deficient in rendering the services.

8.                Moreover, the onus of proof of deficiency in services is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In this regard, in case title Ravneet Singh Bagga Vs KLM Royal Dutch Airines and another in 2000 (1) SCC 66, it has been held by the Hon’ble Supreme Court of India that the burden of proving the deficiency in service is upon the person who alleges it. Para No.6 of this judgment is reproduced as under:-

“6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

The Hon’ble Supreme Court of India in another case 2020 (9) SCC 424 title as Indigo Airlines Vs Kalpana Rani Debbarma and others held that the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. Para No.28 of the said judgment is reproduced as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer For a, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, this Commission is of the opinion that the complainant has failed to prove his case and the same liable to be dismissed.

9.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

Monika Bhagat)           (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:23.01.2023.

Gobind Ram.

 

 

 

 

Anil Kumar Vs M/s. Goyal Automotive                                   CC/19/29

 

Present:       Sh. Hemant Kalia,  Advocate for complainant.

                   Sh. M.S. Sethi, Advocate for OP1.

                   Complaint against OP2 not admitted vide order dated 28.02.2019.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

Monika Bhagat)           (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:23.01.2023.

Gobind Ram.