Haryana

Panchkula

CC/291/2018

MOHAN LAL - Complainant(s)

Versus

JOSHI AUTOSCANS PVT.LTD. - Opp.Party(s)

SHUBHAM SHARMA& KIRTI KUMAR

28 Sep 2023

ORDER

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	291 of 2018
Date of Institution	:	11.12.2018
Date of Decision	:	28.09.2023

 

Mohan Lal son of Sh. Babu Ram, Resident of Morni Hills, Tehsil and District Panchkula

    ..….Complainant

Versus                                                                  

1.     Joshi Autoscans Pvt. Ltd. SCO No.369, Sector-8, Panchkula       through its principal officer/officer incharge.

2.     Sharma Autos, Chandigarh Road, near Petrol Pump, Raipur Rani,        District Panchkula through its principal officer.

3.     Honda motorcycle & Scooter India Pvt. Ltd. Commercial complex       II Sector-49-50, golf cource Ext. Road Gurgoan-122018 Haryana         through its principal officer.

                                                                      ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

                        Dr. Sushma Garg, Member.

                        Dr. Barhm Parkash Yadav, Member. 

 

 

For the Parties:   Complainant in person along with Sh. Shubham Sharma, Advocate.

                        Sh. Rajesh Verma, Advocate for OPs No.1 & 3.

                        Sh.Anil Kumar, Proprietor/authorized representative                         of OP No.2.

 

                       

ORDER

(Satpal, President)

1.Briefly stated, the facts, as alleged in the present complaint, are that the complainant intending to purchase a new Honda Scooter, had approached the Opposite party No.2 hereinafter referred to as OP No.2 who, after having discussion qua the purchase of a vehicle on loan basis, had received an amount of Rs.15,000/-from the complainant as down payment vide receipt dated 29.01.2018. The complainant was assured by OP No.2 that registration of the vehicle would be got done by him as per Haryana Government Instructions. The OP No.1 got delivered the vehicle i.e. Honda Activa 125 having engine no. JF49 E82139265, Chassis no.ME4JF497GH8031036 from OP No.1. At the time of the delivery of the vehicle, OP No.2 had conveyed to the complainant that the vehicle was manufactured in the year 2018 and the vehicle would be covered by warranty for 2 years. It is stated that the complainant was given only the insurance policy and the OPs had stated to the complainant that registration certificate would reach at the residence of complainant. The complainant went on using the said scooter and after some time, the vehicle started giving problem and thereafter, the complainant contacted OPs No.1 & 2 many times and reported the problems and asked to remove the problem or replace the vehicle being covered by guarantee, but the Ops did not give patient hearing to the grievance of complainant. Thereafter, the complainant asked the OPs to provide the documents relating to the scooter. Again, the OPs went on putting off the matter on one pretext or the other. It is alleged that, after repeated request the complainant was provided the photocopy of the invoice, sale letter etc. and he was shocked to see that the manufacturing month and year of the scooter was mentioned as July 2017, whereas he had purchased the scooter in the month of January 2018; thus, the OPs had sold an old scooter. The scooter has some manufacturing defects in battery and other parts of the vehicle. It is stated that the complainant visited the OPs offices several time and requested to retune/replace the scooter with new scooter or to repair the scooter. The OPs refused to repair scooter of complainant without making the payment to them. Thereafter, the complainant got checked his vehicle from Sukhija Auto Care Pinjore and get estimate of the expenditure. The said workshop gives an estimate of Rs.8,485/- for the repair of the scooter.  A legal notice dated 25.06.2018 was sent by the complainant through his counsel seeking the redressal of his grievances but to no avail. Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.Upon notices, the OPs No.1 & 3 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable as no cause of action has accrued in favour of the complainant to file the present complaint. The complainant had failed to prove any manufacturing defect in the vehicle as required vide Section 13 I c of the Consumer Protection Act, 1986. The complainant does not fall under the category of the consumer. The relationship between the OPs are based on the basis of principle to principle. The OP No.3 is engaged in the business of manufacturing of scooters and once these are manufactured, they are sold to dealers and sub-dealers. The ancillary services i.e. after sale services, is exclusively provided by the dealers and sub dealers. The complainant has not suffered any damages; hence the complainant is not entitled to any compensation. The complaint cannot be decided in a summary procedure as adopted under the Consumer Protection Act.

                On merits, it is denied that the complainant was informed by OP No.1 that the vehicle was manufactured in year 2018. It is submitted that the complainant was duly informed that the vehicle was 2017 make/model. The form no.21 clearly reveals the manufacturing date i.e. July, 2017. It is submitted that the complainant had not deposited the registration fee. The rest of the averments made in the complaint have been denied being false, baseless and meritless.

                Upon notice, the OP No.2 appeared through counsel and filed the written statement raising preliminary objections qua complaint is not maintainable as no cause of action has accrued in favour of the complainant to file the present complaint. It is submitted that the complainant was duly informed that the manufacturing year of vehicle was 2017 and in this regard, form no.21 mentioning the date of manufacture as July, 2017, was issued to the complainant. It is denied that the complainant was told that the year of the manufacturing of the vehicle was 2018.

                On merits, it is submitted that the complainant had not deposited the registration fee of the vehicle for the reasons best known to him. The complainant did not respond to the telephonic calls made to him qua payment of registration fee, which he did not pay. Further, he had taken the documents from the OP No.2. It is denied that old scooter was sold to the complainant. It is submitted that, on form no.21 as well as insurance cover note, it was clearly mentioned that the vehicle was manufactured in year 2017. It is denied that the vehicle was having defect in the battery or the other parts. The complainant has never approached the OP No.2 for removal of any defect in the vehicle. In fact, the vehicle had no defect.  Since the vehicle was in warranty then the complainant was free to get the warranty benefit at Sukhija Auto Care Pinjore. Moreover, the complainant has attached merely an estimate and not the repair bill. The complainant has managed to get the repair estimate, wherein it has nowhere been stated that vehicle was checked and these parts were found to be defective. It is merely an estimate indicating the price of the parts. The vehicle is still running in good condition and has no defect. Moreover, the complainant has got the vehicle service on 01.08.2018 and at that time, no defect was reported; so, there is no deficiency in service on the part of the OP No.2 and the present complaint is liable to be dismissed.

3.The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-8 and closed the evidence by making a separate statement. On the other hand, the learned counsel for the Ops No.1 & 3 has tendered affidavit Annexure R-A on 01.02.2021 and sought time for filing documentary evidence and case was adjourned to 05.03.2021. On 05.03.2021, 07.04.2021, 25.05.2021, 15.06.2021, 09.08.2021, 14.09.2021 and 13.10.2021, none had appeared on behalf of the Ops No.1 & 3 and case was adjourned to 17.11.2021. On 17.11.2021, none has appeared for filing evidence and thus, the evidence of OPs No.1 & 3 was closed by the Commission. The ld. counsel for the OP No.2 has tendered affidavit Annexure R2/A along with documents Annexure R-2/1 & R2/2 and closed the evidence.

 

                During the course of arguments, the Sh.Anil Kumar, Owner/OP No.2 has placed on record the copy of receipt of Rs.500/- as received from the complainant on 25.12.2017 as booking amount of Honda Activa 125 D/Alloy i.e. vehicle in question, which is taken on record as Mark ‘A’ for the adjudication of the controversy in a proper and fair manner.

4. We have heard the learned counsels for the complainant, OPs No.1 & 3 and owner/authorized representative of OP No.2 and gone through the entire record available on file including written arguments filed on behalf of the complainant, minutely and carefully.

5.During arguments, the learned counsel for the complainant reiterated the averments as made in the complaint as also in the affidavit Annexure C-A and contended that a old scooter, manufactured in the year 2017, was sold by OP No.2 to the complainant in the last week of January, 2018 i.e. on 29.01.2018 stating the same to be manufactured in the year 2018. It is argued that that the scooter as sold by OPs to the complainant was found, having several manufacturing defects in it and in this regard, invited our attention towards the repair estimate amounting to Rs.84-85 as given by Sukhija Auto Care, Pinjore and thus, the complaint is liable to be accepted by grating the relief as claimed for in the complaint. Reliance has been placed the following case laws:-

i.      Tata motors Ltd. Vs. Antonio Paulo Vaz & Anr., Civil Appeal no.574/2021          decided on 18.02.201 SC.

ii.       N.I.Aboobacker Vs. M/s Shakthi Automobiles, in First Appeal      No.672/2005 decided on 29.10.2010 SCDRC, Thiruvananthapuram

6.On the other hand, the learned counsel on behalf of the Ops No.1 & 3 reiterating the averments as made in the written statement as well as affidavit Annexure R-A and contended that there was no manufacturing defect in the vehicle as alleged by the complainant.  It is contended that the complainant has not placed any expert report in support of his contentions to prove the manufacturing defect. The learned counsel further argued that the relationship between the manufacturer i.e. the OP No.3 and OP No.1 on one hand and the OP No.2, who has sold the scooter to the complainant, on the other hand are based on the basis of principle to principle and for any lapse or deficiency on the part of its dealer/sub-dealers, no liability can be fastened upon the manufacturer.  

7.Sh.Anil Sharma, Proprietor of OP No.2, during arguments, reiterated the averments as made in the written statement as also in the affidavit Annexure R-2/A and contended that a new scooter was sold to the complainant clearly informing him qua the date of manufacture of the vehicle as year 2017 and thus, nothing was concealed from the complainant. It is contended that the complainant had made the booking in the month of December, 2017 vide Mark ‘A’ qua purchase of a scooter and thus, no mis-representation qua model of the vehicle in question was made. The authorized representative/ proprietor further invited our attention towards the Form No.21 Annexure C-3 to show that year of manufacture was clearly mentioned therein as July, 2017.

8.The authorized representative/proprietor further contended that the there is/was no defect in the vehicle as alleged because the complainant has not got the vehicle inspected through ITI, Mechanical Inspector, as ordered by the Commission on 22.09.2022 and thus, prayed for dismissal of the complaint being baseless and meritless.

9.As per rival contentions raised by the learned counsel for the complainant and the learned counsel for Ops No.1 & 3 and Authorised representative of OP No.2, it emerges  that the complainant has alleged deficiencies and unfair trade practice on the part of OPs on the following two counts:-

1. That the Ops had sold an old scooter to him on 29.01.2018 having the manufacturing date as July, 2017 as per Annexure C-3 stating the same to be manufactured in the year 2018.
2. That the vehicle in question as sold him by OPs on 29.01.2018 was found having several manufacturing defects in it.

10.Regarding the first grievance, qua the sale of old scooter, it is found as per Annexure C-3, that the vehicle was manufactured in the year July, 2017, whereas it was sold to the complainant in the last week of January in the next year i.e. on 29.01.2018; thus, there was a gap of about 6 months between the date of manufacturing and the date of sale of the vehicle. The complainant had made the booking qua purchase of a vehicle in the last week of December, 2017 vide Mark ‘A’ i.e. on 25.12.2017; so as to have a scooter/vehiclehaving the model of next year i.e. year 2018.

11.Since the OP No.2 had sold the scooter on 29.01.2018 having the manufacturing/model of previous year i.e. 2017, it was expected of him to give a certain discount to the complainant but as per tax invoice, no discount was given to the complainant while selling a scooter having old model. Therefore, the grievance of the complainant to this extent are found valid and justified that he was sold a scooter in the last week of January, 2018 i.e. on 29.01.2018 having the model of previous year i.e. July, 2017.

12.The second grievance of the complainant is about the manufacturing defect in the scooter sold to him by the Ops. In this regard, the complainant was directed to produce the vehicle before the Bitna, Tehsil Kalka, District Panchkula for its inspection vide order dated 22.09.2022 but he never went to ITI Bitna for getting the mechanicalinspection of the scooter. In this regard, the Principal, ITI Bitna, Tehsil Kalka, District Panchkula informed the Commission vide his letter no.1233 dated 13.06.2023 that the complainant had not brought the vehicle for its inspection despite asking him on his Mobile no. 9813454007 and his counsel’s mobile no.7027140003. The complainant was directed to produce the vehicle on or before 15.07.2023 for its inspection at ITI, Bitna, Tehsil Kalka, District Panchkula. Thereafter, the Principal, ITI Bitna again informed the Commission vide letter no.1538 dated 13.07.2023 that the complainant had not brought the vehicle for its inspection. Again, one more opportunity was provided to the complainant for getting the vehicle inspected at ITI Bitna, Tehsil Kalka, District Panchkula on or before 28.08.2023 but the complainant had preferred not to get the mechanical inspection of the vehicle in question. In the absence of any mechanical report, no manufacturing defect can be established and thus, the grievance of the complainant on this count is not found correct and genuine.

13.As per discussion made above, the OP No.2 has been found to have sold a scooter of old model to the complainant; thus, he(OP No.2)  was deficient while rendering services to the complainant for which the complainant is entitled to relief and accordingly, the OP No.2 is liable to compensate the complainant for the deficiency on its part. The present complaint is dismissed qua OPs No.1 & 3 as no deficiency has been found on their parts.

14.As a sequel to the above discussion, we partly allow the present complaint by directing the OP No.2 to pay a lump sum compensation of Rs.5,000/- to complainant on account of mental agony, harassment and cost of litigations charges.

15.The OP No.2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OP No.2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 28.09.2023

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President

 

 

CC.291 of 2018

Present:             Complainant in person along with Sh. Shubham Sharma, Advocate.

                         Sh. Rajesh Verma, Advocate for OPs No.1 & 3.

                        Sh.Anil Kumar, Proprietor/authorized representative                         of OP No.2.

                                         

 

                       Arguments heard. Now, to come upon 28.09.2023 for orders.

Dt.19.09.2023

 

 

        Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal

                       Member                            Member                         President

 

Present:             Complainant in person along with Sh. Shubham Sharma, Advocate.

                        Sh. Rajesh Verma, Advocate for OPs No.1 & 3.

                        Sh.Anil Kumar, Proprietor/authorized representative                         of OP No.2.

                                         

 

                                Vide a separate order of even date, the present complaint is hereby dismissed against OPs No.1 & 3 and is hereby partly allowed against OP No.2 with costs.

                         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.28.09.2023

 

 

       Dr.Barhm Parkash Yadav       Dr.Sushma Garg             Satpal

                       Member                            Member                         President