| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 275 of 05-05-2014 Decided on : 10-02-2016 M/s. Sky Land Resorts, Multania Road, Bathinda, through its Prop. Smt. Renu Bala W/o Sh. Bhushan Kumar, aged about 43 years, R/o H. No. 6203, Sirki Bazar, Bathinda. …...Complainant Versus Imperial Motors, G.T. Road, Bathinda, 151 001, through its Prop./ Partner/Authorized Signatory Mahindra India & World Headquarters, Mohindra Towers, G.M. Bhosale Marg, Mumbai 400 018, through its MD.
.......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986. Quorum : Sh. M.P.Singh. Pahwa, President Smt. Sukhwinder Kaur, Member Sh. Jarnail Singh, Member Present : For the Complainant : Sh. Kuldeep Singla, Advocate. For the opposite parties : Sh. Ashok Gupta, Advocate, for OP No. 1. Sh. Lachman Dass, Advocate for OP No. 2. O R D E R M. P. Singh Pahwa, President M/s. Sky Land Resorts, has filed this complaint through its Prop. Smt. Renu Bala against Imperial Motors and another, opposite parties under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act'). Briefly stated the case of the complainant is that in order to earn the livelihood for herself and her family, she purchased a vehicle Model Maxximo Load Carr 0.9L 2CY CRDE NA B, manufactured by opposite party No. 2 from opposite party No. 1 on 25-09-2011 for a sum of Rs. 3,10,000/-. The complainant paid total amount to opposite party No. 1. At the time of purchasing the vehicle, the opposite party assured the complainant that said vehicle is of best quality. There is no complaint regarding functioning of vehicle. The opposite party No. 1 had also provided one year guarantee in case of any defect in the vehicle and assured best services. After purchasing the vehicle, the complainant got the same registered in his name vide Registration No. PB -03AC-2673 and started using the same for carriage of goods for earning the livelihood for herself and her family members. From very beginning of purchase of the vehicle, the same has not been running smoothly. It has been creating problems. The complainant approached opposite party No. 1 and complained about the same but the mechanic of opposite party No. 1 used to provide formal service to the vehicle and used to assure the complainant that there will be no problem in future in the said vehicle. The vehicle did not work properly. It has been creating problems including the problem of starting. In order to pass the warranty period, the officials of opposite parties have been providing only formal service. When the warranty of the vehicle in question expired, the opposite parties refused to provide any service to the vehicle although the problems were continuing from very beginning of the purchase of said vehicle. The complainant also got the vehicle repaired from opposite party No. 1 from time to time by spending huge amount, but it never worked properly and is giving start problem and causing lot of problems. The complainant lastly took the said vehicle for repair to the workshop of opposite party No. 1 by towing the same on 13-2-14 as the vehicle did not get start. She spent Rs. 3,000/- for repair but despite that vehicle did not get start. It is lying in the workshop of opposite party No. 1 since 13-2-2014. It is alleged that there is manufacturing defect in the vehicle. The mechanic of opposite party No. 1 also confirmed that there is some manufacturing defect in the vehicle as the entire lot from which the said vehicle was purchased, was having some manufacturing defect. The complainant also requested the opposite parties to replace the aforesaid vehicle with new one or in alternative to refund total amount to the complainant, but to no effect. The opposite parties have been initially providing formal service to pass the warranty and thereafter started charging huge amount from her for repair/service. Since there is manufacturing defect in the vehicle, as such the vehicle in question is creating lot of problems since the date of its purchase. The value and utility of vehicle has been totally deteriorated. The complainant has also suffered huge financial loss. The complainant has also suffered huge loss on account repairing of the vehicle in question besides huge loss of income. It is further pleaded that complainant does not want to get the vehicle repaired as there is manufacturing defect in the vehicle. The complainant repeatedly requested the opposite parties to get the said vehicle replaced with new one but the opposite parties flatly refused to accede to the requests of the complainant. On this backdrop of facts, the complainant has alleged deficiency in service on the part of the opposite parties. She has claimed Rs. 50,000/- as compensation on account of mental tension, agony, botheration, harassment etc., ; Rs. 11,000/- cost of complaint and direction to the opposite parties to replace the vehicle with new one. Upon notice, the opposite parties appeared through their respective counsel and contested the complaint by filing separate written versions. The opposite party No. 1 in its written version raised legal objections that complaint is not maintainable. That this forum has no jurisdiction to entertain and decide the complaint. That complainant is having many transport commercial vehicles and is earning a huge profit. The complainant is involved in commercial activities. She is not consumer under the 'Act'. That question involved is purely of sale and purchase which does not fall in the definition of 'consumer'. That complicated questions of law are involved which cannot be decided by this Forum. That complaint is false and manipulated and is liable to be dismissed with special cost. That complainant has concealed the material facts from this Forum and is not entitled to any relief. That complainant purchased three wheeler but not mentioned for what purpose she purchased the vehicle in question. That complainant has not followed the procedure of Section 13 of the 'Act; hence this complaint is liable to be dismissed. On merits, the opposite party No. 1 has controverted all the material averments. However, it is admitted that complainant purchased a vehicle from opposite party No. 1 on 25-9-2011. It is further stated that complainant has not purchased the vehicle for earning her livelihood rather it was purchased for carrying the load for purpose of marriage palace and resort in which the complainant is proprietor. There was no guarantee rather one year warranty was given by opposite party No. 2 regarding some parts. The complainant is using the vehicle for commercial activities. The vehicle was running in very good condition without any problem. The complainant never made any complaint to the opposite parties regarding the vehicle. The alleged bills are routine bills. No defect is mentioned in the bills. It is further pleaded that vehicle was brought in the month of July, 2013. Oil pipe was found leaking which was replaced vide job sheet No. 319 and invoice No. 270 of Rs. 829/-. Thereafter on 30-7-2013, the vehicle was again brought and electrical fuel pump was replaced and Rs. 4860/- was charged. There was no warranty as warranty was expired after one year of purchase of vehicle. The vehicle was again checked on 10-10-2013. Only gear cable and gear oil was changed and Rs. 2235/- was charged. The complainant again brought the vehicle on 6-11-2013 with complaint of starting problem. It was thoroughly checked. Defect was removed. The vehicle was checked in the presence of complainant on 13-2-2014. All the complaints were removed at the satisfaction of the complainant. The vehicle was checked and found correct. It was started in the presence of the person who brought the vehicle but the person left the vehicle by making excuse that he will take the vehicle within few minutes, but he never came to workshop for lifting the vehicle. The opposite parties called many times to complainant to get the delivery of vehicle. Even letters were also written, but the complainant is forcing the opposite parties to provide a new vehicle in place of old which is not possible. There is no defect in the vehicle. All the alleged complaints were removed. These defects occurred with passage of time, rash and negligent driving and moreover due to overloading. The complainant has not specifically mentioned in her complaint what type of manufacturing defect is in the vehicle. After controverting all other material averments, the opposite party No. 1 prayed for dismissal of complaint. The opposite party No. 2 in its written version also raised preliminary objections that complaint is time barred. The complainant company purchased the vehicle in question on 25-09-2011 and complaint has been filed in the month of October, 2014 i.e. after expiry of more than two years whereas the limitation under Section 24-A of the 'Act' is of two years. That the complainant is not consumer as contemplated under the definition of consumer. The vehicle is a commercial vehicle running in the activities of the resort through some driver. The complainant is not using it for earning livelihood by way of self occupation. The complaint is liable to be dismissed on this ground. Further legal objections are that relation between it and its dealers is on principal to principal basis. The dealers are authorized to purchase the vehicles manufactured by opposite party No. 2 in bulk quantities and in turn re-sell them to their own customers. All the transactions with dealers are on principal to principal basis and opposite party No. 2 is not aware of the ultimate customer of dealers. As such, there is no privity of contract between replying opposite party No. 1 and ultimate customer of the vehicle (complainant in this case). That no cause of action arose to file to complaint in favour of the complainant. That complainant has not approached this Forum with clean hands. That there is no deficiency in service on the part of the opposite party No. 2. That there is no expert opinion on the record to prove the defects. That the complaint is set up of frivolous, vague and baseless allegations. It is liable to be dismissed under Section 26 of the 'Act'. On merits, the opposite party No. 2 has also controverted all the material averments and reiterated its stand as taken in preliminary objections. Parties were afforded opportunity to produce evidence. In support of her claim, complainant has tendered into evidence her affidavits dated 29-4-14 and 10-4-2015 (Ex. C-1 and Ex. C-8), Job Card Invoices (Ex. C-2 to Ex. C-6), photocopy of RC of vehicle (Ex. C-7) and affidavit of Sukhdev Singh dated 10-4-2015 (Ex. C-9). In order to rebut this evidence, opposite party No. 1 has tendered into evidence affidavit dated 29-5-15 (Ex. OP-1/1), photo copies of job cards (Ex. OP-1/2 to Ex. OP-1/5), photo copies of letters (Ex. OP-1/6 and Ex. OP-1/7) and photo copy of resolution (Ex. OP-1/8). The opposite party No. 2 has tendered into evidence affidavit dated 12-6-2015 of Mahendra Pratap Singh (Ex. OP-2/1) and photocopy of standard vehicle warranty (Ex. OP-1/2). We have heard learned counsel for the parties and gone through the record. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that it is not disputed that complainant purchased the vehicle in question from opposite party No. 1 on 25-09-2011. The complainant has placed on record job card invoices Ex. C-2 to Ex. C-6 which prove that vehicle was got repaired from opposite party No. 1 from time to time against bill. Therefore, it stands proved that vehicle was having manufacturing defect. It is further submitted by learned counsel for the complainant that since 13-2-2014, the vehicle is lying with the opposite parties as it is not in a working condition. The complainant has asserted that opposite parties have failed to repair it properly. The opposite party No. 1 is taking contradictory stand. In written statement, it is pleaded that vehicle was checked on 13-2-2014 and the complaints were removed and it was found correct. It was started in the presence of person who brought the vehicle. Therefore, Forum can take judicial notice of the fact that in case the vehicle was properly functioning as alleged by opposite party No.1, the complainant was having no reason to park the vehicle with opposite party No.1. Moreover, opposite party No. 1 has also placed on record copy of letter Ex. OP-1/6 to prove that complainant is not coming forward to collect the vehicle but in this letter rather it is mentioned that vehicle is standing in their workshop for some mechanical job for couple of months. The opposite parties have also produced an estimate alongwith this letter. As per this letter, Rs. 11,423/- was estimated cost of repair and the complainant has been asked to deposit 50% of this amount before doing the needful. Therefore, this documentary evidence belies the version of the opposite parties that the vehicle was fully repaired to the satisfaction of the representative of the complainant. This fact also proves manufacturing defect. The complainant has already been charged Rs. 3,000/- vide invoice dated 13-2-2014 (Ex. C-2). When the vehicle was not fully repaired on 13-2-2014, the opposite parties were having no right to charge this amount. Therefore, if this Forum comes to the conclusion that complainant is unable to prove manufacturing defect, the opposite party No. 1 should be directed to repair the vehicle completely and without charging anything else as it has already received the charges to completely repair the vehicle. On the other hand, learned counsel for opposite parties have submitted that complainant has to prove his case by affirmative evidence. As per complainant, the vehicle in question was purchased on 25-09-2011 and the complainant has alleged manufacturing defect. The warranty was admittedly for one year. The job cards relied upon by the complainant are of the year 2013 and 2014. There is no evidence to prove that any defect was noticed within one year. Therefore, the complainant has failed to prove any manufacturing defect. As such, she is not entitled to any relief in this regard. The complainant has further pleaded that on 13-2-2014, the opposite party No. 1 has charged Rs. 3,000/- and despite that the vehicle is not fully repaired. This fact also stands belied by documentary evidence. Ex. C-2 is the job card invoice dated 13-2-2014. This document is signed by Sanjiv Kumar, customer being representative of complainant and Sanjiv Kumar has acknowledged the receipt of vehicle in perfect order and condition. As per this invoice the charges were for suspension overhaul, wheel alignment and writing RR etc., No engine parts were repaired or examined. Of course the opposite parties have produced letter Ex. OP-1/6 alongwith estimate, but this estimate was got prepared by complainant to get the vehicle further repaired. The complainant has not brought on record any estimate which could have proved that other parts were required to be repaired/replaced. Therefore, no adverse inference can be drawn against the opposite parties only for this estimate. The opposite parties have charged Rs. 3,000/- for the services done as per Invoice Ex. C-2. The opposite parties have right to claim charges for the services if any, required to be got done by the complainant. It is further submitted by learned counsel for the opposite parties that present complaint is beyond the purview of complaint/consumer. The complainant has alleged manufacturing defect. The complainant has not alleged any defect in the services performed by the opposite parties against the charges of Rs. 3,000/-. The vehicle in question is commercial vehicle. The complaint has been filed on behalf of Sky Land Resorts, Bathinda. The complainant was required to plead and prove that vehicle was purchased to earn livelihood by means of self employment. The complainant has neither pleaded nor proved these facts. The contention of the learned counsel for the complainant that opposite parties be directed to repair the vehicle without further charges is beyond the scope of the complaint. It is not the prayer of the complainant in the complaint. Moreover, the opposite parties cannot be forced to repair the vehicle without any charges. There is no legal or contractual obligation on the part of opposite party No. 1 to repair the vehicle of the complainant without any charges. As per complainant herself, the vehicle was brought to the workshop of opposite party No. 1 by towing the same. Therefore, it is not the case of the complainant that before taking the vehicle to opposite party No. 1, it was in a working/operating conditions. As such, the complaint is without any merit and it be dismissed. We have carefully gone through the record and have considered the rival contentions. Before coming to the main point, it is to be seen whether the complainant falls within the purview of consumer under the 'Act'. The complaint has been filed on behalf of Sky Land Resorts, Bathinda through its proprietor Smt. Renu Bala. The vehicle is commercial vehicle. It is pleaded that in order to earn livelihood for herself and her family, complainant purchased the vehicle but it is nowhere pleaded that vehicle was purchased by complainant to earn livelihood by means of self employment. Mere pleading that vehicle was purchased to earn livelihood will not bring the complainant within the ambit of consumer as defined under the 'Act'. Even otherwise on merits also, the complainant has failed to prove her case. The prayer of the complainant is that the opposite parties be directed to replace the defective vehicle with new one as it is having manufacturing defect. From this prayer of the complainant, the only inference is that the complainant has alleged manufacturing defect in the vehicle. Admittedly the vehicle was purchased on 25-9-2011. As per complainant there was warranty of one year which stands expired on 24-9-2012. The complainant has not brought any documentary evidence to prove that any manufacturing defect or other defect was reported to the opposite parties within warranty period of one year. Of course the complainant has placed on record job card invoices Ex. C-2 to Ex. C-6 but all the documents are of July, 2013 onwards i.e. after expiry of warranty period. Therefore from these job card invoices, it cannot be concluded that there was any manufacturing defect in the vehicle. As such, complainant cannot be allowed replacement of vehicle. The learned counsel for the complainant has alternatively prayed for direction to opposite party No. 1 to repair the vehicle without further charges. Of course this prayer is beyond the scope of complainant. This relief was not claimed in the complaint. Even otherwise opposite party No. 1 is not under any legal or contractual obligation to repair the vehicle of the complainant without any charges. The opposite parties also cannot be directed to repair the vehicle of the complainant on receipt of charges as it is a matter of mutual agreement between the parties. The opposite parties cannot be forced to repair the vehicle of the complainant even on receipt of charges. Keeping in view the facts, circumstances and the evidence placed on file, this Forum is of the considered opinion that from all angles, the complaint is without any merit. Hence, it stands dismissed with no order as to costs. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 10-02-2016 (M.P.Singh Pahwa ) President (Sukhwinder Kaur) Member (Jarnail Singh ) Member
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