Delhi

West Delhi

CC/13/612

VIJAY MALHOTRA - Complainant(s)

Versus

HIGH TECH CAR MOTORS - Opp.Party(s)

30 Nov 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-III: WEST

GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI-110058

 

Complaint Case No. 612/2013

 

In the matter of:

 

Vijay Malhotra

R/o B-55, Gali No.6,

Sitapuri, Part-I, New Delhi                                                 ……Complainant

 

VERSUS

1.Hi Tech Car Masters Pvt. Ltd.

B-45, Keshopuram Industrial Area,

Opposite H-3 Block Petrol Pump

Vikas Puri, New Delhi-110018

 

2. The Manager, Hi Tech Car Masters  Pvt. Ltd.

B-45, Kashopur, Industrial Area

Opposite H-3 Block, Petrol Pump Vikaspuri,

New Delhi-110018

 

3.TATA Motors,

Office at: Bombay House, 24,

Homi, Modi Street, Fort, Mumbai-400001.       

Through its Principal Officers.

 

4.Global Administration Services  Pvt. Ltd.,

5^th Floor, Vartika Triangle, Susant Lok-I,

MG Road, Gurgaon-122002

 

5.M/s Techno Automobiles Pvt. Ltd,

521, Nangli Sakrawati,

Industrial Area, Najafgarh,

New Delhi-110043

                                                                                             .....Opposite Parties

 

DATE OF INSTITUTION:  JUDGMENT RESERVED ON:    DATE OF DECISION:

04.10.2013 30.11.2022  30.11.2022

 

CORAM

 

Ms. Sonica Mehrotra, President

Ms.Richa Jindal, Member

Mr. Anil Kumar Koushal, Member

Present: Mr. Vishwanath,  counsel  for the complainant 

                 Mr. Suresh Pant and Mr. Ashok Kumar Mishra, counsel for OP.3.

 

ORDER

Per: Mr. Anil Kumar Koushal, Member

 

          Facts of the present case as culled out from the record are detailed below:

1.       Complainant states that he had  purchased a  TATA Indica Manza AQUA new QD 90 BS-IV  vehicle bearing regn No. DL-1YC-6766 from  OP.5,   who is authorized dealer of OP.3, vide their bill dated 23.11.2011.  The vehicle initially had two years warranty.   Extended warranty of this vehicle was also obtained on payment of  Rs.5500/-  to OP.5 vide receipt No.2705 dated  06.02.2012.  A receipt to this effect was also  issued by OP.5  against cover Note No.100066228, dated 06.2.2012.   The  extended warranty was to run from 75000 kms and was valid till 150000 or 36 months from the date of purchase, whichever occurs first.

2.       It is submitted by the complainant that after purchasing the said vehicle, time to time it went for servicing etc. to OP.1, authorized Services Station of OP.3. On 29.07.2013 at about 10.30 a.m. with meter reading of 61111, OP.1 accepted the vehicle of complainant for routine servicing  vide  their job slip NO.14017 dated 29.07.2013.  On the same day i.e. 29.07.2013, on physical examination of  the said vehicle by the supervisor of OP.1, he  changed the engine oil and filter and found the minor defects as mentioned in the said job order and the complainant was called to collect the said vehicle in the evening and on visiting there in the evening time, the complainant was stated that there is some problem in Heater plug and after setting it right the said vehicle would be handed over to the complainant on the next day i.e. on 30.07.2013. On 30.07.2013 the complainant was informed that there is some technical defect in the said vehicle and after checking it on laptop, the complainant would be informed later on. But thereafter no information was given to the complainant and the vehicle has not been returned till date. After about 5 days, when the complainant contacted  the said workshop of  OP.1  and visited there, the complainant was informed that the Engine of the said vehicle is not functioning properly and giving back compressor problem as well as total Engine loss and regarding this when the complainant talked to the supervisor of the opposite party No.1, he stated  that he will send email to the Office of OP.3 for survey of said vehicle regarding Engine problem.  Complainant mentioned that all the routine services in the car were done by OP.1, the authorized Services Station of OP.3.

3.       After about  10 days, the complainant was informed through Mr. Navneet, Manager of OP.1, that half Engine Assembly has been approved/sanctioned by the TATA Motors and work will also start very soon on the complainant's said vehicle and after about two days the complainant contacted the workshop of opposite Party No.1 and he was informed that it was a wrong email and no sanction of half Engine assembly has been approved by OP.3 and the complainant will have to bear the entire cost for the repair of the said vehicle and the complainant was advised to talk to Regional Office of OP.3  at Gurgaon but on talking at the regional office of OP.3 at Gurgaon, they also did not give any satisfactory answer and  even said that it was an accidental vehicle.

4.       It is submitted by the complainant that due to continued harassment of the complainant on the part of OP.1  and non-interference by OP.3  on OP.1, a legal notice was sent to OP/1, 2 and 3 on 03.09.2013 which was duly received by them on 04.09.2013 and 06.09.2013 respectively and due to continuous  non-                                                                                 redressal  of his grievance, the complainant filed the present complaint on 03.10.2013.

5.       It is submitted by the complainant that during the course of proceedings  before this Commission and much after  service of legal notice dated 03.09.2013, OP.1 sent a letter dated 10.01.2014 as an eyewash and only as their  face saving attempt, informing the complainant that vehicle was ready at the service station on 04.09.2013 and due to not taking delivery thereof, the complainant should pay parking charges of Rs.33,000/- @ Rs.200/- per day for 165 days w.e.f. 04.09.2013. Accordingly complainant visited the service station and found that the vehicle was completely in condemned shape and not in working condition and consequently he advised OP.1 not to befool him but to cooperate  in the proceeding now before this Commission by filing its written statement.

6.       Contention of the complainant is that he has not been provided anything in writing apart from the  job order  and the letter dated 10.1.2014 as already mentioned above  and  the complainant's vehicle is still lying at the workshop of opposite Party No.1 since more than one month and the employees of opposite party No.1 are making different kind of unbelievable excuses for harassing the complainant and because of  the negligence of opposite party No.1  as well as OP No.3 and delay,  OP. 1  could not succeed in timely rectification of the  fault and kept on making lame  excuses.

7.       As per complainant, the said vehicle was financed by the complainant with OP.4 vide loan No.5000842850 which is under the direct control and cover of opposite party No.3 and now OP.4  is forcing and compelling  the complainant to pay instalments of loan  of the said vehicle though  very well knowing the above mentioned facts.  Complainant submits that in the absence of the said vehicle, he is  suffering heavy loss as it is the only source of his livelihood.

8.       According to the complainant, the manufacturer of vehicle/OP.3 initially gave two years  warranty or upto 75000 kms whichever is earlier.  However, in case of commercial vehicle it is claimed to be only upto 50000 kms and since the vehicle had covered 61111 kms at the time of delivering  the same for servicing at the service centre of OP.1, OP.3 claimed to be not liable for any default under the CP Act.  As per  complainant, it was stated by OP.3 that it was the liability of OP.5 who extended the warranty. Complainant states that for the extended warranty beyond the prescribed period/Kms, he had paid Rs.5500/- on 06.02.2012 to OP.4 through OP.5, who is authorised dealer of OP.3/the manufacturer.  It is the case of complainant that  on the receipt dated 06.02.2012 issued by OP.4, OP.5 has also put their stamp.  The cover note for the extended warranty  was issued  in favour of complainant  addressed as “Individual taxi owner” covering the vehicle’s extended warranty after 75000kms and upto 15000 kms or 36 months from the date of purchase, whichever is earlier. This cover note also bears the stamp of OP.5 knowing very well that it was a commercial vehicle and as per OP.3 the initial warranty would be only upto 50000 kms but  still OP.5 and OP.4 had mentioned the warranty of commercial vehicle upto 75000 kms as if the original warranty was upto 75000 as in the case of vehicles other than commercial vehicle.  Complainant states that  it was a matter between the OP.3 and OPs 4 & 5  to sort out as to who is liable  to carry out servicing  and repairs of the vehicle at 61111 kms since the complainant has already given all the papers  to OP.1.  In any case the complainant was entitled to  servicing and repairs at 61111 kms either from OP.3 or OPs.1, 4 & 5 and therefore, OP.1 should not have refused service/repair of the vehicle and withheld the same for no fault of the complainant.  It was only because of this deficiency on the part of OP.1 which was not properly coordinated by OPs. 3, 4 and 5 that the vehicle of the complainant is still lying with OP.1 and it is almost condemned now for want of timely repairs and maintenance.

9.       The complainant states that for redressal of his grievance, he had also sent a legal notice to the opposite parties 1, 2 and 3 on  03.09.2013 by speed post through his counsel to immediately release the said vehicle after setting right it defects instead of making different types of  excuses and pay an amount of Rupees Fifty Thousand as a compensation on account of harassment, negligence in service and mental agony and loss caused by the opposite parties to the complainant.

10.     It is the submission of the complainant that despite  making his all efforts,  the OPs have not redressed his  grievances  and continuously harassing, which shows lack of service to the consumer against the principles of Consumer Protection Act.  According to him, the OPs have not provided proper requisite service to the complainant as required by law and further they have  committed fraud and cheating with the complainant by illegally withholding the above said vehicle of the complainant, which amounts to deficiency of service. Hence the present complaint.

11.     By way of present complaint, following prayers are made:

1.To direct OPs 1 & 2  to immediately release the  vehicle of the complainant after setting right its defects instead of making different kinds of excuses  and pay him Rs.50,000/-  as a compensation on account of harassment, negligence in service and  mental agony and loss caused by the opposite parties to the complainant;

2. To punish the opposite parties as per law for committing the offence and deficiency of service;

3. The opposite parties  be directed to pay the cost of  proceedings to the complainant, in view of submission made above in the interest of justice.

4. To Pass any other relief which this Forum may deem fit and proper, in favour of the complainant and against the opposite party, in the interests of justice.

12.     Complainant filed on record copies of receipt Nos.TechAU-RCT-1112-004783  and 4789, both dated 23.11.2011 in the sum of Rs.1,66,000/- and Rs.705/- respectively  issued by OP.5 to the complainant towards part cash down payment received by it for sale of the vehicle in question to the complainant, copy of receipt No.TAW/2705, dated 06.02.2012   in the sum of Rs.5500/-  issued by OP.5 in favour of complainant towards extended warranty of the vehicle beyond the original warranty, copy of receipt dated 06.02.2012  issued by OP.4 in favour of the complainant  in the sum of Rs.5500/- towards the   cover note  No.100066228 for extended warranty fee of the vehicle of complainant, which receipt bore the stamp of OP.5 also, copy of the proposal form/Policy/Schedule dated 06.02.2012 issued by OP.5 in favour of the complainant thereby admitting that the complainant  was “individual taxi owner”  and the  extended warranty of the vehicle in question  shall start at 75000 kms and will be valid till 150000 kms  or 36 months from the date of purchase whichever occurs first, copy of job card No.14017, dated 29.07.2013 drawn by OP.1  at the time of booking of the vehicle for servicing etc., copy of the legal notice dated 03.09.2013 sent by the complainant to   OPs. 1 to 3, copy of the extended warranty booklet in respect of Taxis under booklet series code 77 issued by the United India Insurance Company Limted showing the scope of insurance cover under the extended warranty.

13.     Upon notice being issued to OPs 1,2 and 3, OP.3 filed its memo of appearance. Later on written statement was filed by OP.3.

14.     It may be noted that initially there were only three OPs.  Later on two applications were filed by the complainant  under Order 1 rule 10 and Order 6 Rule 17, CPC for impleadment of necessary parties and consequential  amendment of  complaint.  Both were allowed.  Accordingly  notice was directed to be issued to all the six OPs except OP.3 who had already entered appearance in the amended complaint.  Later on appearance was entered on behalf of OP.1 and OP.4.  Thereafter on an application being filed by OP.4 (Tata Motors Finance Ltd) for deletion of its name from the array of parties as no relief was claimed against it, the said OP.4 was discharged and deleted from the array of parties.  Despite service and  repeated opportunities, no reply was filed on behalf of OPs 1,2 5 and 6 and accordingly vide orders dated 24.09.2015, said OPs were proceeded against ex parte. Now the only OP left in the fray was OP.3.

15.     In the meantime, counsel for the complainant had  filed application under Order 7 Rule 14(3) CPC for bringing on record some additional documents.  OP.3 did not file reply to the said application.  The said application was allowed on 23.02.2022.  Thereafter amended  memo of parties was filed by the complainant.  

16.     In the reply filed by OP.3 it submitted that it is  a company duly incorporated under the provisions of the Companies Act, 1913 and  renowned manufacturer of various types of commercial vehicles  and passenger cars  across the world and is widely acclaimed for its class and quality. It is submitted that the cars and the vehicles manufactured by the answering opposite party pass through stringent quality checks and road trials before the actual commercial production starts and the cars and vehicles are marketed only after being approved by the Automotive Research Association of India (in short ARAI). The cars and vehicles manufactured at the plant of the answering opposite party are also thoroughly inspected for control systems, quality checks and test drive before passing through factory works for dispatch to the authorized dealers appointed on a 'principal to principal' basis for sale of the cars and vehicles. OP.3 further submitted that it is ably supported by the excellent dealerships/authorized service centers, having excellent workshop setup for after sales servicing of the vehicles, which are manned by qualified and experienced personnel only. It is submitted that the customers of all vehicles manufactured by the answering opposite party are provided services through a large network of authorized dealers and Tata Authorized Service Centre (TASC). The network of such workshops/service points is being continuously enhanced and widened in order to bring maximum and efficient services as closer to the customers' doorsteps as far as possible. These workshops provide scheduled services, running repairs, major repairs, spare parts support and even carry out accidental repairs to the vehicles. It is stated that all dealer workshops have dedicated helpline for attending to any breakdown, thus providing assistance to the customers in distress situation and an all India 24 x 7 Toll free helpline is operational over and above the dealership helpline. Every procedure for service/check- ups is standardized and procedures are laid down for the service centers, workshops etc. for carrying out necessary services/check-ups/ replacement as may be required. This has been the successful result and endeavour of the Research and Development Department of the answering opposite party. The answering opposite party has carved a niche for themselves in the products as well as in after sales service across the country. The manufacturers of the vehicles and the vehicles owners are bound by the terms and conditions of the warranty policy applicable for the vehicles.

17.     OP.3  took the preliminary objection that the present complaint filed by the complainant is an abuse of process of law and is not maintainable because the complainant has not approached this Commission with clean hands and has suppressed and concealed the material facts. The averments made in the complaint are vague, baseless and with mala fide intent. It is submitted that the vehicle purchased by the complainant (DL-1YC-6766) is a commercial vehicle and also registered as a TAXI and as such, the complainant cannot enjoy the status of a 'Consumer' under the purview of Consumer Protection Act, hence the complaint is not maintainable and liable to be dismissed on this count alone. OP.3 further submitted that as per clause 1 of the warranty of vehicle, the terms of warranty is limited only to either 50,000 Kms or 24 months whichever is earlier in case of vehicle used as a Taxi. In the present case, when the vehicle was reported for repairs on 29.07.2013, the vehicle had already covered 61111 Kms as is evident from the job slip filed by the complainant himself. Hence, the warranty of the vehicle ceases to exist and the complaint of the complainant is thus liable to be dismissed against this answering OP on this ground alone.

18.     OP.3 contended that  the complainant himself admitted in his complaint that he got his vehicle financed through Tata Motors Finance Pvt. Ltd. It is submitted that Tata Motors Finance Pvt. Ltd. is a separate entity and has nothing to do with the answering OP. Furthermore, since the vehicle has been purchased under finance, the complainant as such is not the de-jure owner of the vehicle in question and is merely the Hirer/Bailee. Hence, the complainant does not come under the definition of the Consumer as provided under Section 2(1) (d) of the Consumer Protection Act, hence, the jurisdiction of this Commission is barred under the Consumer Protection Act amended up to date.

19.     OP.3 stated that it is only a manufacturer of vehicles and provides initial warranty up to 50,000 Kms or 24 months whichever is earlier, for commercial vehicles, such as Taxi. After expiry of the original warranty period, the manufacturer/answering opposite party has no liability whatsoever and the extended warranty, if taken by the complainant, is the responsibility of the insurance company from whom the extended warranty is taken. This fact is clearly stated in the terms & conditions of the agreement between the manufacturer/opposite party and its authorized dealers which are reproduced hereunder:

"1(a) Subject to the terms hereof, the company hereby appoints the Dealer as its 'Authorized Dealer' to sell and service on a principal-to-principal basis........"

(c) It is expressly agreed and declared that notwithstanding anything herein contained, this Agreement does not constitute any form of agency or principal-agent relationship between the dealer and the company. The dealer and the company shall deal solely on a principal-to-principal basis in the manner provided in this Agreement".

20.     OP.3  submitted that the warranty offered on every vehicle, manufactured by the answering opposite party, is subject to such terms & conditions as contained therein. It is submitted that the Complainant has not carried out 1st Free Mandatory Service. In this regard, reliance may be place on clause 5 of the terms & conditions of warranty, which provides as under :-

 

“This warranty shall not apply if the vehicle or any part thereof is repaired or altered otherwise than in accordance with our standard repair procedure, or by any person other than our authorized dealers or their sub- dealers or service centers in any way so as, in our judgment which shall be final and binding, the vehicle or the part has been subjected to misuse, negligence, improper or inadequate maintenance and servicing or accident or loading in excess of the carrying capacity as certified by us or the services prescribed in Operator's Service Book are not carried out at our sales or service establishments, our authorized dealers or their sub- dealers or service centers."

 

Even otherwise, in the present case, the Answering OP has nothing to do with the present controversy. The Complainant, himself, admitted that he faced some problem at 61111 Kms and the warranty provided by this Answering OP was valid till 50000 Kms. Thus, the Complainant cannot allege any grievance from the answering OP.

21.     OP.3. submitted that the vehicle was reported at 61112 Kms at the workshop of OP No. 1 with the complaint of cold starting problem. On inspection, it was found that Oil Sump was pressed and Engine Shield hit. It was further found that 4 No. Heater Plug was broken and was repaired from the outside local mechanic. Since, there was external impact on the Oil Sump. According to it, OP.4/Global Administration Service and United India Insurance, who provided Extended Warranty, have refused to carry out repairs under the Extended Warranty.

22.     OP.3 contended that  the relationship  between the OPs  is on principal to principal basis. It is submitted that, the answering respondent cannot be held liable for any independent act and/or omission, committed by the other OPs. Thus for the acts of the one OP, another OP could not be held vicariously liable. In this regard, reference may be taken from the case of Indian Oil Corporation vs. Consumer Protection Council, Kerala & Anr. (1994) 1, Supreme Court Cases 397, whereby the Hon'ble Supreme Court observed that "reliance has to be placed on the circumstances, documents and conduct of parties to prove that the relationship of the parties is of 'principal and agent' or of one of 'principal to principal' basis. In the instant case on the basis of the facts of the case, it was held that the relationship of the parties is on 'principal to principal' basis.

23.     OP.3 also relied on the case titled Maruti Udyog Limited vs. Nagender Prasad Sinha & Anr. II (2009) CPJ 295 (NC), in which the Hon'ble Apex Court had observed that relationship  between the Petitioner and O.P. No. 2 was of principal to principal basis.  Therefore, in view of the settled provisions of law, there is no liability which can be imposed on this opposite party No.3 for act/omission of the other opposite party- dealer.

24.     OP.3 further submitted that without prejudice to the foregoing submission,  the instant complaint makes out no ground for relief under the provisions of section 14 of the Consumer Protection Act, 1986. The onus lies on the complainant to show that the reliefs as contemplated under section 14 can be given for the defect in goods supplied or deficiency in service provided to the complainant. In the present case,  it is crystal clear that there has been no deficiency in service in the goods purchased by the complainant and/or deficiency in service on the part of the answering opposite party.  Therefore, the complaint is liable to be dismissed under section 26 of the Consumer Protection Act. It is submitted by OP.3 that the complaint has been filed with ulterior motive and malafide intention to cause harassment and prejudice to the answering opposite party.

25.     OP.3  further submitted that  this Commission  has no jurisdiction to entertain, try and adjudicate the present complaint. The complainant has raised issues, which involves questions of facts as well as law, and it necessarily requires deposition of evidence and trials and can be appropriately done only by a civil court. Hence, the proper forum, to agitate the alleged grievance, is before the civil court and proceedings under the Consumer Protection Act envisage a summary procedure of complaints of simple nature and the complicated questions of law and facts can be decided only by a civil court. Therefore, the complaint is liable to be dismissed on this score alone.

26.     As per OP.3 in the present case, when the vehicle was reported on 29.07.2013, prior to filing of the present complaint, the vehicle had already covered 61111 Kms. If there is any grievance of the complainant, the same lies with OP.4/Global Administration Service or United India Insurance Company, however they have not been impleaded as the necessary parties in the present case. Hence the present complaint deserves to be dismissed for non-joinder of necessary parties.

 27.    OP.3 further submitted that as per information received, when the complainant brought the vehicle to the authorized workshop/OP.1 of the answering opposite party, during inspection it was found that the vehicle had met with an accident. As such, the complainant cannot claim any compensation from the answering opposite party.

28.     OP.3 also denied  having received legal notice from the complainant.

29.     OP.3 filed with its reply copy of the warranty terms and conditions of the vehicle in question, photographs of the damaged  vehicle of complainant before giving for servicing, copy of registration plate of the vehicle, photograph showing the speedometer reading of the vehicle at the relevant time.

30.     Though OP.4 also filed its written statement but  since the said OP was deleted from the array of parties on an application  being filed by it,  as afore-stated, its reply is not being considered herein.

31.     Dissatisfied with the reply of OP.3, complainant countered it by filing rejoinder. Complainant submitted that  the present complaint is legally maintainable according to the definition of the term "Consumer" under clause (d) of sub-section (1) of section 2 of the Consumer Protection Act 1986 since the vehicle purchased is for self use as taxi for earning livelihood. Complainant further submitted that in view of the extended warranty obtained by the complainant by paying Rs.5,500/- on 06.02.2012 to OP.5 & 6 - the extended warranty was to commence at 75000 Km and not 50,000/- Km. as per cover note/policy No.100066228 issued by them and hence the original manufacturer's warranty was upto 75000 Km. For any controversy between the manufacturer and the insurer, the complainant/consumer cannot be made to suffer. The insurance Cos. have already been impleaded as OP. No. 5 & 6.

32.     Complainant admitted the averment of OP.3 to the extent that the vehicle purchased was got financed through TATA Motor finances Ltd.  However, complainant  denied that he  was only a bailee/hirer and not a dejure owner and hence not a consumer. Complainant had purchased the vehicle in his own name for self use as a taxi for earning his own livelihood. Under finance agreement the vehicles possession was to remain with the complainant and the warranty was with reference to the user of the vehicle only without which it was not possible to ascertain about the defect if any in the goods purchased.

33.     Complainant denied that he had not got all the mandatory services done  from the authorized service station. He also   denied the averment of OP.3  to the extent that the damage alleged to be noticed in the vehicle was due to any accident.  He submitted that  when the vehicle was brought at the authorized workshop/OP.1 on 29.07.2013 at the Km reading of 61111,  for  servicing on self propulsion/driving, the alleged damages  were not noticed  and consequently  not mentioned in the job slip No.14017 dated 29.07.2013.   These  damages are of the nature which could have been so seen from the naked eyes. In fact the damages now alleged to be due to any accident, could have been the result of any accident after the vehicle was left at the workshop due to any act/negligence of own staff of such authorized workshop/OP.1, where the vehicle is still lying since 29.07.2013.  Complainant denied the statement of OP No.3 that because of such damages due to the alleged accident, OP.5/M/s. Global Administration Services and United India Insurance company who provided this extended warranty have refused to carry out the repairs, seems to be their  spokesman for them. It is peculiar that ever since the vehicle was left for servicing in the authorized service station/OP.1 on 29.07.2013, neither OP.1/services station nor manufacturer/OP.3 nor insurer/OP.4 have given any written communication for not carrying out the repair under the warranty or extended warranty although legal notice was sent before institution of the present complaint. When  OP No.3 claims to be not liable for any relief to the complainant, what for he is shielding other OPs who are claimed to be distinct entities by OP.3. Off late the service station i.e. OP No.1 has vide its vague and ambiguous letter dated 10.01.2014 informed the complainant that his vehicle was ready on 04.09.2013 but due to not picking up the same, he is demanding parking charges of Rs.33,000/- @Rs.200/- per day from 04.09.2013. According to complainant, this  is only to overcome the existing complaint case before this Commission  which has been duly replied to by the complainant.

34.     Complainant submitted that the  liability of the manufacturer does not cease in view of it being a renowned company as claimed in its preliminary submissions. Complainant reiterated and reaffirmed the prayer made in the complaint  as correct and solicited grant thereof in the interest of justice.

35.     Evidence by way of affidavit was filed by the complainant and he exhibited the documents filed on record as C.W.1/A to C.W.1/G. OP.3 also filed its evidence by way of affidavit and exhibited the documents filed on record. 

36.     Written arguments were filed by the complainant as well as by OP.No.3 respectively. Oral arguments were heard on 18.10.2022. Mr. Vishwanath, counsel for the complainant and Mr. Suresh Pant, counsel for OP.3 addressed arguments based on the pleadings filed on record.  Counsel for the complainant submitted that  since extended warranty was taken by the complainant on payment of Rs.5500/- to OPs 4 & 5,  OP.1 could not have refused service/repair.  The vehicle since the time i.e. 29.07.2013 is lying with it and no steps have been taken to give it back to him in working conditiion. This amounts to  deficiency on the part of OP.1. After hearing arguments of counsel for the respective parties, orders were reserved.    

37.     In order to understand the case of the parties, it is necessary to refer to the definition of consumer under the Consumer Protection Act, 1986 since the case was filed in 2013.  Relevant Section  2(1)(d) is reproduced below:

2(1)(d)        "consumer" means any person who—

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)   hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment; 

 

38.     On the point whether a person is a consumer or not, we are guided by the classic  verdict of the Hon’ble Supreme Court in the case of Laxmi Engineering Works vs P.S.G. Industrial Institute, decided on 4 April, 1995 ,  1995 AIR 1428, 1995 SCC (3) 583 wherein the  Hon’ble Court observed as under:

“24. ……………………

 (ii)Whether the purpose for which a person has bought goods is a "commercial purpose" within the meaning of the definition of expression "consumer" in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case.

(iii)A person who buys goods and uses them himself, exclusively for the purpose of earning his livelihood, by means of self employment is within the definition of the expression "consumer".

 

39.  Now in the present case, the complainant has categorically and vehemently submitted that he had purchased the vehicle for his livelihood. Even the Proposal Form/Policy schedule towards the extended warranty of vehicle in question issued by OP.5 on 06.12.2012  mentions the fact of “Individual Taxi Owners”. This proves beyond reasonable doubt that the vehicle purchased by the complainant was for self use and to earn his livelihood.  The aforementioned definition as also the verdict of Hon’ble Apex Court make it amply clear that the complainant is covered under the Explanation attached to Section 2(1)(d) of the CP Act, 1986 and can be very well termed as a “Consumer”.

40.    As regards the contention of OP.3 that disputed questions of fact and law are involved for which the proper course would have been to approach the Civil Courts as lot of evidence is required to be adduced and tried, the complainant relied on the judgment of the Hon’ble NCDRC in the case of International Airports Authority of India vs. M/s Solidair India Limited(First Appeal No178/1994), decided on 27.11.1998 to bring home his argument that the facts stated in the present complaint are crystal clear and are not disputed.  Having gone through the contents of that judgment, we find force in the argument of the complainant and find the said judgment to be on all fours.

41.    As regards the liability of OP.3  being the manufacturer of the vehicle in the whole scenario, we do find force in the argument of counsel for OP.3 that the relationship of the manufacturer and the dealer is on principal to principal basis leaving no scope for interference by the manufacturer/OP.3 in the affairs between the complainant and OPs. 1, 4  and 5. No ground of vehicle being defective has been taken by the complainant for which OP.3 could be held liable.  Therefore, OP.3 is absolved of any liability  which may arise upon conclusion of the proceedings in the present complaint.  However, we fail to understand and it is beyond our imagination that when the relationship between the manufacturer/OP.3 and OP.1 was on principal to principal basis, how come, OP.3 came into picture to bring on record the photographs of the damaged vehicle. As per  OP.3, the original warranty given with the vehicle was 50000 kms and not 75000 kms as contended by the complainant and according to the OP.3 the said warranty expired at 50000 and the vehicle of the complainant had admittedly visited the OP.1/authorized service centre at 61112 kms, therefore  the servicing etc of the vehicle was beyond the warranty period. Further, OP.3 admitted in its reply that if at all any liability arises for such repairs upon taking the extended warranty by the complainant, it falls on OPs. 4 & 5. Here we again fail to understand, when the OP.3 has principal to principle relationship with its dealers, as to why OP.3 was meddling  in the affairs of complainant  and OP.1 and OPs 4 & 5 who had entered into an agreement on payment of certain sum to extend the period of original warranty carried by the vehicle, whether it was 50000 or 75000 kms.     In any case, when admittedly as per documents filed on record, the service  warranty of  the vehicle had been extended beyond the period of two years on payment of Rs.5500/- to OPs 4 & 5, the question whether the original warranty was 50000 kms or 75000 kms is academic only as in any case  even after 50000 kms on extension of warranty, the vehicle was eligible to be repaired as per warranty terms.  Further, nowhere in the job card dated 29.07.2013, there is any mention of vehicle being accidental or the first service of the vehicle was not got done from the authorized vendor, as alleged by OP.3.  Had that been so, OP.1 would not have accepted the vehicle for servicing on 29.07.2013.  There is some hanky panky and calls for investigation whether any hand in glove relationship existed between OP.1 and OP.3. Complainant is right in his submission that somehow  OP.3 was shielding the other OPs.  

42.      At this stage it is relevant to take note of the letter dated 10.01.2014 issued by OP.1 to the complainant as reminder-II:

“Your vehicle was ready on dated (04/09/2013) our service advisor  has informed you but still you are not coming to pick your vehicle. As per company norms we will started parking  charges that day when was your invoiced Rs.200/- per day from that day 200*165=33000/-“

 The tone and tenor of above letter demonstrates that OP.1 reacted only upon filing  of the present complaint.  Though  the said letter was termed as “reminder 2” but apparently before that no action whatsoever was taken by OP.1 from the date of delivery of vehicle to it on 29.07.2013 to hand over the vehicle to the complainant in working condition based on the extended warranty.   Had it been so vigilant, it would have participated in the present proceedings after receipt of notice and got the matter resolved  in the initial stages instead of making the complainant to wait for  more than nine years for conclusion of these proceedings. Mere absence of OP.1 and OPs 4 & 5 from these proceedings is testimony of deficiency on their part.  The complainant has all these nine years since 29.07.2013 been made fool by OP1 and OPs 4 & 5 by not adhering  to the extended warranty schedule upon receipt of demanded  money and not delivering the vehicle to the complainant in working condition.  The letter dated 10.1.2014 by OP.1 to the complainant  clearly shows that there was not even a whisper of any issue relating to extended warranty beyond 50000/75000 kms or the vehicle being accidental etc. but to cover up their wrong deeds and delays and in order to justify its stand and to extract money from complainant, OP.1 just mentioned about the parking charges @Rs.200/- per day starting from 04.09.2013 to put pressure on the complainant to come to terms.  Had that been so, the complainant should have been intimated in time  in order not to prompt him to take recourse to the present complaint.  All this appears to be an after though on the part of OP.1, after filing of the present complaint in October, 2013. This is a glaring case of  deficiency in service, gross negligence and lack of coordination on the part of OPs 1, 4 and 5 together.

42.      For the foregoing reasons and in the absence of averments to the contrary on behalf of OPs 1, 4 and 5, who have all been proceeded against ex parte, we partly allow the  complaint to the extent of only against OP.1, OP.4 and OP.5 and  hold them  guilty of  not only gross negligence and deficiency in service but also unfair trade practice for not taking any action in all these nine years in delivering the vehicle to the complainant in a working condition admittedly when the vehicle had extended warranty which covered all  mechanical defects as per the policy schedule and keeping the complainant on tenterhook.      

43.       Before finalizing the matter, we wanted certain clarifications from the complainant to the following effect:

1. What is the total cost of vehicle
2. How much loan taken and how much paid
3. Whether any reminder –I was received before reminder-II dated 10.1.2014

Accordingly the matter was listed for the purpose on 30.11.2022.  On 30.11.2022, counsel for the complainant submitted that the total cost of the vehicle in question  purchased from OP.5 was Rs.8,70,000/-.  We find that the same amount is also reflected in the letter of extended warranty issued by OP.5 (Annexure B2 attached with the complaint). Complainant also placed on record a statement showing that the total loan taken by  him was of Rs.4,35,303/- from Tata Motor Finance Solutions  Ltd., and as on 29.11.2022, an amount of Rs.6,84,963/- inclusive of interest is still due to be paid to the said company by the complainant.  As usual, Mr. Ashok Kumar Mishra, counsel for OP.3 again reiterated its stand taken earlier that it has no role to play in the whole affair and at the same time he submitted that the original warranty of the vehicle in question was upto 50000.

 44.      We may note that the car of the complainant is lying idle with OP.1 for the last more nine years since 29.07.2013.  The warranty of the vehicle  has in any case expired  with the passage of time.  The condition of the vehicle in all these nine years has drastically deteriorated resulting in its depreciation to the extent of  almost 80% of its value @ 10% depreciation per year. When the vehicle of complainant was delivered to OP.1 for servicing its, it had already run for 61111 kms and completed two years.  That way 20% of depreciation had already taken place in the vehicle.  The complainant had purchased the vehicle in question for Rs.8,70,000/-.  Therefore, no useful purpose will be served by ordering OP.1 to deliver back the car to the complainant in a working condition.   OP.1 is, therefore, directed  to refund to the complainant, 80% of the actual cost of the vehicle amounting  to Rs.6,96,000/-.

44.       At this stage it may be noted that since the vehicle of the complainant is hypothecated with Tata Motors Finance Limited, 11-B/A, Second Floor, Tiwari House, Pusa Road, New Delhi-110005   from whom the complainant had taken a car loan of Rs.4,35,303/-, the said company  shall be the first charge holder on the amount  to be awarded by this Commission.  Accordingly, out of the amount of Rs.6,96,000/- awarded  in favour of the complainant, OPs. 1, 4 and 5 shall  jointly and severally  pay a sum of Rs.6,84,963/- to Tata Motors Finance Ltd  and the balance amount of Rs.11037/- shall be paid to the complainant.  The vehicle was the only source of  livelihood of the complainant and he has been deprived of his earning for all these nine years and at the same time was compelled to pay hefty interest on the loan taken towards its purchase.  Therefore, for the harassment and agony and financial loss suffered by the  complainant in all these nine years, OPs.1, 4 and 5 are directed to pay jointly a sum of Rs.40,000/- as compensation to the complainant.  The OPs 1, 4 and 5 are also directed to pay to the complainant a sum of Rs.60,000/- as litigation cost for dragging the present complaint for nine years.   Let this order be complied with by OPs 1, 4 and 5 within 30 days of receipt of copy of this order.

          It is made clear that upon receipt of  balance loan amount of Rs.6,84,963/- from OPs 1, 4 and 5, Tata Motors Finance Limited  shall issue a Certificate to the effect that there are no dues pending against the vehicle of the complainant as on date.   

A copy of this order shall be supplied to parties to the dispute free of cost  under Regulation 21 of CPR, 2020 on a written requisition/application being made by them in the name of President of this Commission.

File be consigned to record room.

 

 

(Richa Jindal)                           (Anil Kumar Koushal)                       (Sonica Mehrotra)

  Member                                      Member                                          President