DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC.No.33 of 03-02-2009<br /> Decided on: 13.11.2009<br /> <br /> Rajinder Singh son of Sh. Jangir Singh, resident of near Bus Stand, Bhagta Bhai Ka, Distt. Bathinda.<br /> <br /> ……….Complainant.<br /> Versus<br /> <br /> 1. Imperial Motors, G.T. Road, Bathinda, through its prop./partner/Manager.<br /> 2. Mahindra & Mahindra Ltd., Zaheerabad 502 200 Distt. Medak (AP), through its Managing Director/Director.<br /> 3. Mahindra & Mahindra Ltd., Registered office Gateway Building Appollo Bunder, Mumbai, through its Managing Director/Director/Manager.<br /> ………….Opposite parties.<br /> <br /> Complaint under section 12 of<br /> the Consumer Protection Act,1986.<br /> <br /> Present:-<br /> For the complainant : Sh. G.S.Sidhu, counsel for the complainant and also complainant in person. <br /> For the opposite parties: Sh.Sukhminder Singh, counsel for the <br /> opposite party No.1<br /> Sh. Sandeep Bhagla, counsel for the <br /> opposite parties No.2&3.<br /> <br /> QUORUM<br /> <br /> Sh. George, President.<br /> Dr. Phulinder Preet, Member.<br /> Sh. Amarjeet Paul, Member.<br /> <br /> ORDER<br /> <br /> GEORGE, PRESIDENT:-<br /> <br /> 1. The present complaint has been filed by the complainant under<br /> <br /> Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as ‘Act’) with the allegations against the opposite parties that he purchased on 20-2-2008 one Bolero Camper DI Long 2 WD CMVR from opposite party No.1 bearing engine and chasis No. 83a55774, Model 2008 as per sale Invoice No. 230 dt. 20-2-2008 and temporary No. PB-03-TEMP-P-0307 as a new brand vehicle. He took all the precutions and get all the services done well within specify time as prescribed, but the chasis of the said vehicle started rusting, he took the vehicle to opposite parties and shown the same to the technicians of opposite parties and he was told by them that chasis of the vehicle sold to him is not new rather the same is old and due to this reason, the rust is appearing and has damaged the vehicle at different points and therefore, he is entitled to get the vehicle replaced with a new one as the defect of rusting appears to be a manufacturing one. He has suffered on account of indulgence of opposite parties into unfair trade practice. He approached opposite parties and requested to do the needful, but his requests are not taken care of by opposite parties, as a result of which, he had to suffer harassment, humiliation and lot of botheration. He issued a legal notice dt. 23-12-2008 to opposite parties No.1 & 3 but despite legal notice, he was not provided with any relief. Due to the callous attitude of opposite parities, he has suffered mental tension, agony and financial loss, harassment and humiliation and is, therefore, entitled for reasonable and adequate amount of compensation to the tune of Rs. One lakh along with replacement with new vehicle and payment of adequate litigation expenses.<br /> 2. All the three opposite parties contested the allegations. Opposite party No.1 in reply raised objections qua locus standi non-joinder and mis-joinder of necessary party; complaint is not maintainable; complainant has not come with clean hand; he has filed the complaint on false, frivolous and vexatious facts; complaint is not maintainable before this Forum; opposite party had not given any guarantee and warranty against rusting of the vehicle; the condition of the vehicle depends upon actual usages of the vehicle; rusting of chassis of a vehicle cannot be termed as manufacturing defect; the alleged rusting of vehicle is not covered within the warranty as per the terms so stipulated in the service booklet; though, opposite party No.1 has in no way admitted that there is any warranty on deterioration of the body of the vehicle ; opposite party No. 1 only a dealer and is not responsible for any manufacturing defect; though, there is no manufacturing defect in the vehicle, but even then liability, if any, what so ever cannot be fastened on opposite party No.1 in this case; there is no deficiency in service on the part of opposite party No.1; the matter involved is technical in nature which can be decided only by Civil Court; the matter can be taken care of by an arbitrator as mentioned in the Job Card to resolve any dispute between complainant and opposite party No.1; complainant has already run the vehicle more than fifteen thousands kms and there being no alleged complaint raised on his part about rusting of the vehicle and as such the warranty stands waived and lapsed due to the Act and conduct of the complainant. The complainant has no cause of action; complainant has not brought on record any opinion of expert as regard the alleged allegations of rusting of the vehicle in respect of manufacturing defect of the chasis of the vehicle.<br /> 3. On merits also, opposite party No.1 while denying all the allegations of the complainant has reiterated all the points/facts referred to here-in-above. <br /> 4. Complainant in order to prove the allegations, filed his own two affidavits dt. 12.06.09 and dt. 22.09.09 Ex.C-14 and Ex.C-22, and also brought on record, copy of sale certificate Ex.C-1; copy of standard warranty page Nos. 13 &15 Ex.C-2; copy of temporary R.C. Ex.C-3; copies of retail Invoice Ex.C-4 to Ex.C-6; copy of Form No.22 Ex.C-7; copy of legal notice dt. 23.12.08 Ex.C-8; postal receipts Ex.C-9 to Ex.C-11; copy of A.D. Ex.C-12; copy of complaint Ex.C-13, and also brought on record, affidavits of Sh. Sukhmander Singh and Sh. Baldev Singh dt. 24.06.09 Ex.C-15 and Ex.C-17; copy of R.C. of Vehicle No. PB-03N/9070 Ex.C-16; copy of National Trade Certificate of Baldev Singh Ex.C-18; copy of certificate dt. 08.04.1996 Ex.C-19; copy of certificate dt. 21.12.2005 Ex.C-20; copy of Matriculation certificate Ex.C-21; Photographs Ex.C-23 to Ex.C-44 and copies of extended warranty Ex.C-45 to Ex.C-46, respectively.<br /> 5. To controvert the evidence of the complainant, opposite parties filed affidavits of Sh. Sanjiv Devjun, G.M., Sh. Deepak Sharma and Sh. Benny John, Deputy Manager Commercial dt. 21.07.09 Ex.R-1, Ex.R-10 and Ex.R-13, and also brought on record, copy of retail Invoice Ex.R-2; copy of Tax Invoice Ex.R-3; copies of Job Card Ex.R-4. Ex.R-6 and Ex.R-8; copies of satisfaction note Ex.R-5, Ex.R-7 and Ex.R-9; copy of detail Marks Card Ex.R-11 and copy of provisional certificate Ex.R-12, respectively.<br /> 6. We have heard the learned counsel for both the parties and perused the entire record of the case carefully.<br /> 7. It is an admitted fact that the learned counsel on behalf of complainant has vehemently urged that complainant purchased one Bolero Camper DI Long 2 WD CMVR, bearing engine and chassi No. 83a55774 Model 2008 as per sale Invoice No. 230 from opposite party No.1 on 20.02.2008, and he got the vehicle serviced as per the schedule. The vehicle was purchased by Sale Certificate Ex.C-1. He also urged that, within a period of 6-7 months of the purchase of the vehicle within the warranty period, its chassis started gave out of order, due to rust has eaten the said vehicle. The rust started eating the vehicle from various points of the chassi, this was brought to the notice of the opposite party No.1, and the vehicle was also got examined from the mechanics of opposite party No.1. The complainant was told that chassis of the vehicle is not a new one, and that due to this reason, the rust has appeared, and damaged the vehicle. The learned counsel further urged that he issued a legal notice to opposite party No.1 dated 23.12.2008 Ex.C-8, wherein the fact that the chassi of the vehicle is eaten up by the rust, brought to knowledge of opposite party No.1. Opposite party No.1 paid no heed to the legal notice, and therefore, the complainant had to file the present complaint. The learned counsel has taken us through the documents Ex.C-1 to Ex.C-13, and also Ex.C-16, Ex.C-18 to Ex.C-21, Ex.C-23 to Ex.C-46, and also affidavits of Sh. Rajinder Singh complainant Ex.C-14 and Ex.C-22, and also affidavits of Sh. Sukhmander Singh and Sh. Baldev Singh, who are examined as experts, their affidavits Ex.C-15 and Ex.C-17, respectively. Complainant has pleaded in his affidavit Ex.C-22 that he purchased the vehicle for his livelihood for his self-employment. This is an admitted fact that complainant is an retired Ex-Service man, and after his retirement, he purchased the said vehicle for his self-employment to earn livelihood, and he has no other source of income except his meagre figure, which is insufficient to maintain the expenditure of large family i.e. his wife and six children. The statement made by Sh. Sukhmander Singh in his affidavit Ex.C-15, and Sh. Baldev Singh in his affidavit Ex.C-17 has revealed that the said vehicle was examined by them, and they found mostly the entire chassi is eaten up by rust. It shows that the chassis of the vehicle is totally damaged by the rust.<br /> 8. The respondents in order to controvert the affidavits filed on behalf of the complainant Ex.C-15 and Ex.C-17, examined Sh. Deepak Sharma, who is working as Service Manager of opposite party No.1, and he filed his affidavit Ex.R-10. According to him, he examined the vehicle on three occasions, when the vehicle was brought by the complainant for service, and he had supervised the said services of the vehicle personally. There was no rusting in the vehicle, and complainant signed the Job Sheets on all the three occasions, showing his full satisfaction with the vehicle. The chassi of the vehicle was free from rusting, at the time of servicing of the vehicle. Meaning thereby, the claim of the complainant is that the chassi of the vehicle damaged, due to rusting, which is duly supported by the affidavit of Sh. Sukhmander Singh Ex.C-15 as well as affidavit of Sh. Baldev Singh Ex.C-17, but denied on behalf of the opposite parties as their Works Manager has filed affidavit Ex.R-10 that the chassi of the vehicle was not damaged due to rusting, when he examined the same.<br /> 9. The question remained, as to whether in fact, the chassi of the vehicle damaged, due to rusting, or not. To prove this fact, complainant moved an application before the Forum to examine the vehicle, and that this application was allowed, and the vehicle was examined by the Forum in presence of learned counsel for the parties.<br /> 10. The complainant in order to prove the rusting conditions of the chassis of the vehicle brought on record, the latest photographs of the vehicle Ex.C-23 to Ex.C-44. These photographs speak out the true position of the vehicle, as it shows apparently that the chassis of the vehicle is being eaten up by the rust, and as damaged badly.<br /> 11. Opposite parties were not ready to except the version of the complainant, and their learned counsel for opposite parties moved an application for examination of the vehicle by an independent expert. In order to afford, both the parties reasonable opportunity to lead evidence. Accordingly, the application was allowed, and Works Manager of Tara Automobiles, Bathinda, was appointed as Local Commissioner vide letter dated 13.10.2009 to examine the vehicle in Maruti Workshop in presence of both the parties on 15.10.2009 at 4 P.M., and Works Manager of Tara Automobiles was directed to submit his report before the Forum on 20.10.2009. The local Commissioner, Works Manager of Tara Automobiles filed his report before the Forum on the date fixed, as the vehicle was examined by him, in the presence of the parties and their counsel on 15.10.2009. A memo to this effect, also filed alongwith his report dated 19.10.2009. Sh. G.S. Sekhon, Works Manager of Tara Automobiles, Bathinda, in his report examined as under: “As per instruction, where in, he inspected the vehicle in the workshop of Tara Automobiles, (Authorized Maruti Suzuki Dealer) workshop in the presence of both the parties & their counsels. Kilometer reading of the vehicle at the time of inspection was 58578 KM. The chassis no. of the vehicle checked & got it tallied with the Chassis no. mentioned in the aforesaid letter which is same. But however, the identification place which contains chassis & engine no. is not fixed/riveted, as per the manufacturing norms. It is screwed on the body of the vehicle & creates the confusion about its authenticity. The chassis no. punched on the frame of the vehicle confirm that the vehicle is manufacturing of year 2008. The front wind shield fitted in the vehicle is stamped 2007 Model & the quarter glasses of both the rear door of the vehicle stamped 2006 Model. Vehicle also got rusted badly it may be due to poor quality of paint & metal sheet used for the body.” This report is also contested by learned counsel for opposite parties, and filed objections that the quarter glasses showing the stamp to 2007 Model, and 2006 Model, even to replace at the later stage, and the report is not authentic.<br /> 12. We have taken into consideration, the entire record of the case carefully. The rusting of the chassi is visual from naked eye, and thus there remains no doubt that the chassi of the vehicle has been eaten up, due to rust, which may be due to poor quality of paint & metal sheet used for the body, and if the poor quality metal sheet used for the body, it is nothing, but the manufacturing defect, and as such, opposite parties can not escape their liability by raising the plea that as per their Warranty Card Ex.C-2, opposite parties are not responsible for any defect in the metal. The condition of this kind in the warranty means to be unfair trade practice, and opposite parties can not escape their liability or responsibility by using the poor quality sheet in the manufacturing body plate of the vehicle. The vehicle as per visual inspection as well as the report of Sh. G.S. Sekhon, Works Manager of Tara Automobiles, Bathinda, the photographs Ex.C-23 to Ex.C-44, and also an affidavits brought on record of Sh. Sukhmander Singh Ex.C-15 as well as affidavit of Sh. Baldev Singh Ex.C-17 definitely controvert the affidavit filed on behalf of opposite parties by Sh. Deepak Sharma Ex.R-10.<br /> 13. The observations made by Sh. G.S. Sekhon in his report that the identification plate, which contains chassis & engine no. is not fixed/riveted as per the manufacturing norms. It is screwed found on the body of the vehicle & creates the confusion about its authenticity. It is a serious flaw, which remained unexplained by the opposite parties, as to why the identification plate contain chassis & engine no. is not fixed/riveted as per the manufacturing norms, and under what circumstances, the identification plate was screwed on the body of the vehicle, which leaves un rebutable inference that the chassi and the engine of the vehicle were some how interfered that either by the manufacturer or by the dealer, before the vehicle was sold, and possession was delivered to the complainant. <br /> 14. The learned counsel appearing on behalf of opposite parties have urged that the vehicle is commercial in nature, and it has been purchased by complainant for commercial use, and therefore, complainant does not fall within meaning of consumer, and Consumer Forum has no jurisdiction to take cognizance of the complaint. We have considered the arguments. The complainant is admittedly a retired Ex-Service man, and he has purchased the vehicle for earning his livelihood by self-employment, and he is driving the same himself. To this effect, he also filed his affidavit Ex.C-22. Thus, buyer of goods or commodities for “self consumption” in economic activities in which they are engaged would be consumers as defined in the Act. Similar view has been taken by Hon’ble The Supreme Court of India in case Madan Kumar Singh (D) through Legal Representative Vs. District Magistrate, Sultanpur and others, 2009 CTJ 1108 (S.C.) (CP). The Hon’ble Supreme Court of India has further held that “the purchase of the truck by the appellant would also be covered under Explanation to Section 2(1) (d) of the Act. The appellant had mentioned categorically that he had bought the said truck to be used exclusively by him, for the purpose of earning his livelihood, by means of self-employment. Even if he was to employ a driver for running the truck aforesaid, it would not have changed the matter in any case, as even then appellant would have continued to earn his livelihood from it and of course, by means of self-employment. Furthermore, there is nothing on record to show that he wanted to use the truck for any commercial purpose.”<br /> 15. In the case of the complainant, he has specifically stated in his affidavit Ex.C-22 that he has purchased the vehicle to be used for earning his livelihood by self-employment for himself and his family members. No evidence has been brought on the record contrary to this, on behalf of any of the opposite parties, and accordingly, we conclude that the purchase of the vehicle by the complainant would be covered under Explanation to Section 2 (1) (d) of the Act, and this Forum has jurisdiction to entertain the complaint and decide the same. <br /> 16. Accordingly, we allow the complaint, and direct opposite parties as <br /> under:-<br /> (i) Opposite parties shall be responsible for replacement of the vehicle with a new one, with same model, with full warranty period, or in the alternative, refund of the full cost price of the vehicle i.e. Rs. 4,84,000/- alongwith interest @ 9% P.A., from the date of purchase of the vehicle, till the entire cost price & interest is paid on replacement or payment of cost price etc. as referred in above, and the complainant shall handover the old vehicle to opposite parties.<br /> (ii) Opposite parties shall also pay compensation to the tune of Rs. 1,00,000/- to the complainant, on account of mental tension, agony, harassment, and inconvenience , he has suffered, due to unfair trade practice, and selling vehicle as new one, with a chassis and engine manufactured with low quality material, by opposite parties.<br /> (iii) Opposite parties shall also liable to pay litigation expenses to the tune of Rs. 10,000/-.<br /> 17. The compliance of this order be made within 45 days from the date of receipt of copy of this order.<br /> 18. The copy of this order be sent to the parties concerned free of cost, and file be indexed and consigned.<br /> <br /> Pronounced (GEORGE)<br /> 13.11.2009 PRESIDENT<br /> <br /> <br /> (DR. PHULINDER PREET)<br /> MEMBER<br /> <br /> <br /> (AMARJEET PAUL)<br /> MEMBER<br /> <br /> <br /> <br /> <br />