BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 373 of 2023.
Date of Institution : 25.09.2023.
Date of Decision : 11.11.2024.
Ramesh Kumar, aged 52 years son of Sh. Sher Singh, resident of House No. 143, near Mahesh Dairy, M.C. Colony, Sirsa, Tehsil and District Sirsa, Haryana.
……Complainant.
Versus.
1. Jannat Enterprises, Office First Floor, Bhattu Road, Ambedkar Park, Near Red Light, Fatehabad (Haryana) through its Proprietor. M. No. 99918-82999.
2. Ganpati E-Rikshaw, A.K.G. Agency, Situated at Near Dr. Gandhi Hospital, Hisar Road, Sirsa, Tehsil and District Sirsa through its Proprietor. M. No. 95419-90108.
3. Amrit Malwa Capital Limited, Finance Company, Jalandhar-Punjab through its authorized signatory. M. No. 88720-80072.
...…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
Before: SH. PADAM SINGH THAKUR ………………PRESIDENT
MRS.SUKHDEEP KAUR……………………….MEMBER.
SH. OM PARKASH TUTEJA …………………MEMBER
Present: Sh. Vijay Bhalla, Advocate for complainant.
Sh. S.L. Sachdeva, Advocate for opposite parties no.1 and 2.
Opposite party no.3 already exparte.
ORDER
In brief, the case of complainant is that complainant maintains himself and his family members i.e. earns for livelihood by running an E-rickshaw. The ops no.1 and 2 are agencies for selling E-rickshaws in Fatehabad and Sirsa and have their main branch at Fatehabad and also having one branch at Sirsa. That on 08.02.2023 complainant had purchased an E-rickshaw bearing registration No. HR-57A-8874, Chassis No. M3ZBEVETUDA002053, Motor No. 02060 red colour from op no.2 for a sum of Rs.1,31,145/- after finance as ops no.1 and 2 got financed the same from op no.3. The complainant had paid down payment of Rs.35,000/- in cash and remaining amount was financed and the total loan amount of Rs.1,76,000/- was to be paid by him in monthly installments of Rs.7922/- each and complainant has paid five installments to op no.3. It is further averred that after one month of purchase of above said E-rickshaw in the month of March, 2023 the problem in the rear side of rickshaw started as voice started coming in the rickshaw and rear pipes of the rickshaw were broken. The complainant took the rickshaw to op no.2 but they sent him back after postponing the matter and did not repair the same and as such complainant himself got repaired the rickshaw from one Manoj Mistri of Shiv Shakti Auto Mobile, Hisar road Sirsa who done welding and charged a sum of Rs.2800/- from him whereas it was responsibility f ops no.1 and 2 to get repaired the rickshaw. The ops no.1 and 2 failed to redress the grievance of complainant despite the fact that rickshaw was within guarantee period and problem occurred within one month of its purchase and complainant had to get repaired it at his own cost. It is further averred that now from last two months, the E-rickshaw is not working properly as its motor and controller have become defective which fact was also told by Mechanic of op no.2 but ops no.1 and 2 have not replaced the said motor and controller of the rickshaw despite his several requests and as such now rickshaw is lying in defective condition due to which complainant has become workless because he was having source of income only through said E-rickshaw and his family was dependent upon said income. The complainant is also unable to pay installments of said Rickshaw for which only ops no.1 to 3 are responsible. It is further averred that complainant has made several requests to ops no.1 and 2 either to rectify motor and controller of the E-rickshaw or to replace the E-rickshaw but ops no.1 and 2 are not listening him and he is intentionally being harassed by ops no.1 to 3. That on 27.08.2023 eight ten persons of company of op no.3 came to him and forcibly took away the E-rickshaw and now threatening him that they will sell his E-rickshaw and will get bounced the cheques with are lying with them as security and will file case against him in the Court regarding cheque bouncing and will also grab huge money from him by misusing the cheques and due to act and conduct of ops, the complainant has suffered financial loss as well as mental harassment. It is further averred that complainant also got served a legal notice to the ops on 02.09.2023 but to no effect. Hence, this complaint seeking direction to the ops to pay an amount of Rs.1,00,000/- as compensation for harassment and to get repaired the E-rickshaw or to replace the same with new one or to make refund of the entire price of the E-rickshaw or to get cancelled the loan. The complainant has further prayed that as employees of op no.3 took away the Rickshaw forcibly and illegally, therefore, op no.3 may also be directed to give back the E-rickshaw after every type of repair or to give a new rickshaw to the complainant and may also be directed to pay a sum of Rs.1,00,000/- as compensation for unnecessary harassment.
2. On notice, ops no.1 and 2 appeared and filed written version raising certain preliminary objections regarding estoppal, maintainability, cause of action, concealment of true and material facts, jurisdiction, complaint is hopelessly time barred and is bad for non joinder of necessary parties and that complainant purchased the vehicle in question with the financial help taken from op no.3. It is submitted that on default in making payment of the loan amount, the op no.3 has taken the custody of the vehicle in question from complainant, hence the complainant has no connection with the vehicle in question and he cannot question about the said vehicle.
3. On merits, it is submitted that complainant has purchased the vehicle in question from answering ops for which he has got finance from op no.3. It is wrong that complainant has repaid five installment of loan to op no.3. As per norms of the company, the answering ops have conducted two free services over the above vehicle and have not charged any penny from the complainant. It is further submitted that during the course of service of above vehicle, it was found by answering ops that vehicle has not been properly plied and it has also been found that wiring system of the vehicle has been damaged badly by complainant himself knowingly. The vehicle in question sold by answering ops was covered with warranty covering motor, controller and chassis only. There was no warranty towards the back seats etc. However, it is made clear that when the complainant produced the vehicle in question to the answering ops with a complaint of noise in back seat, it was thoroughly checked up by the answering ops but no such fault was found covering warranty and as such complainant had himself got minor welding work done from the market, hence the ops cannot be burdened with welding charges. While denying other contents of complaint to be wrong, it is submitted that complainant himself has breached the terms and conditions of loan agreement and he has defaulted in making repayment of the loan amount and in the compelling circumstances, the op no.3 has taken the custody of vehicle in question. With these averments, dismissal of complaint prayed for.
4. Op no.3 failed to appear despite delivery of notice sent through registered cover and as none appeared on behalf of op no.3, therefore, op no.3 was proceeded against exparte.
5. The complainant in evidence has tendered his affidavit Ex. CW1/A and documents Ex.C1 to Ex.C10.
6. On the other hand, ops no.1 and 2 have tendered affidavit of Sh. Amit Lakhotia Proprietor of Jannat Enterprises as Ex. RW1/A and documents Ex.R1 to Ex.R4.
7. We have heard learned counsel for the parties and have gone through the case file.
8. From the invoice Ex.C5, it is evident that on 08.02.2023 complainant had purchased one E-rickshaw from op no.1 an agency of op no.2 for an amount of Rs.1,31,145/- and according to complainant, he made down payment of Rs.35,000/- in cash and remaining amount was got financed by ops no.1 and 2 from op no.3. He has further stated that he was to repay total loan amount of Rs.1,76,000/- in monthly installments of Rs.7922/- each and he has already paid five installments to op no.3. The complainant has alleged defects in the E-rickshaw just within one month of its purchase and has also alleged that as the E-rickshaw became defective within short span of time and was not running properly, therefore, he was unable to ply it and could not pay only one installment of loan amount as from 08.02.2023 to 27.08.2023 he already paid five installments to op no.3 but on 27.08.2023 the employees of op no.3 forcibly and illegally took away the E-rickshaw. From the vehicle job card Ex.R1, it is evident that on 04.04.2023 ops no.1 and 2 set the wire and also set working of tyre and then on 17.04.2023 i.e. just within 13 days the complainant again took the E-rickshaw to ops no.1 and 2 and at that time all wiring of E-rickshaw was set and its nuts were tightened. However, thereafter complainant alleged defects in its Motor and Controller and according to complainant, ops no.1 and 2 could not redress his grievances in this regard and could not repair the same despite his several requests and ultimately the complainant got repaired the same from Shiv Shakti Enterprises, Sirsa and in this regard complainant has also placed on file bills of that agency as Ex.C9 and Ex.C10 and it is proved from these bills Ex.C9 and Ex.C10 that complainant paid an amount of Rs.2800/- for repair of Kamani, motor and controller of E-rickshaw to said Shiv Shakti Enterprises. So, it is proved on record that E-rickshaw of complainant became defective within short time of its purchase and despite repairs by ops no.1 and 2 for two three times, it could not be repaired properly and thereafter defects of Kamani, Motor and controller of E-rickshaw also developed but these defects could not be removed by ops no.1 and 2 despite several requests of the complainant. During the course of arguments, learned counsel for complainant has also placed on file copy of statement of account of complainant from which it is evident that complainant has already deposited five monthly installments of Rs.7922/- each with op no.3 i.e. on 10.03.2023, 10.04.2023, 10.05.2023, 10.06.2023 and on 10.07.2023 and simply because he could not deposit one installment of loan amount on 10.08.2023 due to above said reason of defect in the E-rickshaw and he could not ply the same on road and could not pay only one installment, the op no.3 through its employees forcibly and illegally took away the E-rickshaw from the complainant. The op no.3 despite notice failed to appear before this Commission and opted to be proceeded against exparte. So there is nothing to prove the fact that any prior notice was given to the complainant by op no.3 before taking custody of the E-rickshaw from the complainant. Moreover, it is proved on record that complainant could not deposit only one installment of loan amount to op no.3 as E-rickshaw became defective despite above said repairs from ops no.1 and 2 as well as from Shiv Shakti Enterprises due to which he could not ply the same on road and could not earn money for paying installment and even could not earn his livelihood as he and his family were fully dependent upon earning through E-rickshaw. As such, it is proved on record that ops no.1 and 2 are deficient in service by selling a defective E-rickshaw to the complainant and op no.3 is also deficient in service and has adopted unfair trade practice towards complainant by taking possession of E-rickshaw from a poor person i.e. complainant forcibly and illegally for want of just one installment of loan amount without serving any prior notice. The complainant i.e. who was plying an E-rickshaw for his livelihood also deposited five installments of Rs.7922/- each i.e. total amount of Rs.39,610/- with op no.3 in time and for not paying only one installment, the op no.3 forcibly and illegally took away the rickshaw from complainant and as such op no.3 has also caused humiliation to the complainant. The complainant has suffered unnecessary harassment, mental tension at the hands of ops no.1 to 3. Since the E-rickshaw which was a new one but has already been taken away by op no.3 from complainant only for one installment within six months of its purchase and now a period of more than one year have already elapsed and the fact that op no.3 has not appeared before the Commission to say anything in the matter, therefore, there is every possibility that either E-rickshaw has been auctioned or the same will not be in perfect working condition as complainant has already averred that same was already having defects, therefore, in our considered opinion the complainant is entitled to the amount of Rs.35,000/- paid by him to ops no.1 and 2 and also an amount of Rs.39,610/- already paid by him to op no.3 and is also entitled to compensation from all the ops as they are having hand in gloves with each other and the ops in collusion with each other have taken the E-rickshaw from the complainant. Firstly the ops no.1 and 2 after financing the E-rickshaw from op no.3 supplied a defective E-rickshaw to a poor person by taking handsome amount of Rs.35,000/- as down payment from complainant and thereafter they in collusion with each other got lifted the E-rickshaw from complainant just within six months of its purchase for non payment of only one installment in time by complainant. So, keeping in view the facts and circumstances of present case, all the ops are also liable to be handled with hard handed.
9. In view of our above discussion, we allow the present complaint and direct the opposite parties no.1 and 2 to make payment of Rs.35,000/- received from complainant alongwith interest @6% per annum from the date of payment i.e. 08.02.2023 till actual realization within a period of 45 days from the date of receipt of copy of this order. We also direct the op no.3 to make payment of Rs.39,610/- to the complainant as op no.3 unauthorisedly took possession of a new E-rickshaw from complainant and he could not take any advantage of the vehicle in question despite such huge amounts of Rs.35,000/- and Rs.39,610/- and op no.3 is also liable to make payment of Rs.39,610/- to the complainant alongwith interest @6% per annum from 27.08.2023 till actual realization within a period of 45 day from the date of receipt of copy of this order. We also direct op no.3 to cancel the loan case of the complainant and not to raise any demand from complainant as loan was on vehicle and same has been taken by op no.3 unauthorisedly and illegally from complainant and op no.3 is directed to return back the cheque(s) if any of the complainant. We further direct all the ops to further pay a sum of Rs.50,000/- as composite compensation for harassment and litigation expenses to the complainant within above said stipulated period because the complainant has undergone much mental tension at the hands of ops and he had to spend an amount of Rs.2800/- on the repair of a new E-rickshaw. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member Member President
Dt. 11.11.2024. District Consumer Disputes
Redressal Commission, Sirsa.
