Haryana

Karnal

CC/768/2019

M/s Shiv Shakti Graphics - Complainant(s)

Versus

Kanav Motors Private Limited - Opp.Party(s)

Parveen Kumar

12 Jun 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 768 of 2019

                                                        Date of instt.18.11.2019

                                                        Date of Decision:12.06.2023

 

M/s Shiv Shakti Graphics, office at plot no.474, Sector-25, HUDA  P/2 Panipat through its proprietor Mr. Ravinder Kumar Sharma.

                                               …….Complainant.

                                              Versus

 

1.     Kanav Motors Pvt. Ltd. Authorized Dealer Ford Motors, Pearl Ford, 118/7, G.T. Road, Karnal through its General Manager.

 

2.     Aditya Motors Pvt. Ltd. Authorized Ford Motors Pvt. Ltd. Authorized For Motors, Khushi Ford, Panipat near Toll Plaza, Panipat through its General Manager.

 

3.     Ford India Pvt. Ltd., 5^th floor, plot no.142 Chimes 142, Sector 44Rd, Sector-44, Gurugram Haryana-122003.

 

                                                                   …..Opposite Parties.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

 

 Argued by: Shri Parveen Sharma, counsel for the complainant.

                    Shri Rajesh Gupta, counsel for the OP no.1.

                    OP no.2 exparte.

                    Shri Vikas Yadav, counsel for the OP no.3.

 

                    (Jaswant Singh President)

ORDER:   

 

                

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant had purchased one car from OP make Ford Eco Sport dated 25.06.2018 with Engine no.JJ24068, chasis no.MAJAXXMRKAJJ24068 for amounting to Rs.11,58,500/- with warranty for the vehicle. After the purchase of the car, complainant started to make use of his vehicle on daily basis and from the starting he noticed that wheels of his car are bubbling and making noise while driven and because of that he took his vehicle to authorized dealer of OPs company for the rectification of said problem, but in the starting OPs company told to the complainant that this is not a thing to worry and on relying the assurance of OPs, the complainant continued to use his vehicle on regular basis, but the same problem has increased day by day and still remains more than as it was before. When all the four wheels of the vehicle started to make more noise and bubbling, which can result into big accident and is danger for the life of the passengers of the car, to correct the same complainant took his vehicle to OP on 08.05.2019 but despite of removing the problem from the vehicle, OP company has done much ignorance and despite of replacing all the Alloy wheels, OP has put weights in all the Alloy wheels just to get the matter rid off on their part and told the complainant that now the problem is rectified and vehicle will run smoothly and again relying on representatives OP company, the complainant again started to use his vehicle as usual, but despite of problem getting erased from the vehicle it get worse and result of which the complainant again took the vehicle to OPs authorized dealer where he was shocked to know, when he found that there is a manufacturing defect in all the Alloy Wheels of the vehicle, which was also confirmed by the inspector of the insurance company after inspecting the vehicle. Complainant requested the OPs to change all the Alloy Wheels as his vehicle is still under company warranty, but OPs did not pay any heed to the request of complainant. Thereafter, on 25.06.2019, complainant again took his vehicle to OP another dealership at Panipat but of no avail and they also refused to change the Alloy Wheels of the vehicle. Then complainant sent a legal notice dated 02.07.2019 to the OPs but it also did not yield any result. . In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OP no.1 appeared and filed its written version, raising preliminary objections with regard to maintainability; jurisdiction; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the vehicle was purchased in the name of firm M/s Shiv Shakti Graphics for business-cum-commercial purpose, which is very much clear from the heading of the complaint, and hence it be dismissed and be relegated to the learned Civil Court in view of the definition provided under section 2(1)(d) of the Act. It is further pleaded that the vehicle was purchased and the same is being used by so many persons for business purposes and thus it is being mishandled and there is no question of any replacement any alloy wheel of the vehicle in question, as the vehicle is out of warranty. It is further pleaded that complainant has not mentioned about any date of bringing the vehicle at the OP no.1 and more so over the matter in dispute relates in between the complainant and OPs no.2 and 3, hence the name of answering OP is liable to be deleted from the array of the OP.  It is further pleaded that the vehicle was never received in the workshop of OP no.1 situated at Karnal, complainant alleged in his complaint, the vehicle was received at Panipat, hence no case is made out against the OP no.1. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written version raising preliminary objections with regard to maintainability; locus standi; cause of action and concealment of true and material facts. On merits, it is pleaded that neither the complainant purchased the Ford Eco Sport car in question, nor got repaired, nor paid Rs.11,58,550/- to the OP no.2. The complainant only took advice from OP no.2 on 25.06.2019 about the wheels of the vehicle, thus the question of deficiency in service and negligence in service does not arise. The allegations levelled in the complaint against the OP is specifically denied and same is result of dishonest intention and biased act of the complainant for which special exemplary cost is liable to be imposed upon the complainant for causing unnecessary and unwanted harassment to the OP. There is no deficiency in service and  unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Lateron, OP no.2 did not appear and opted to be proceeded against exparte, vide order dated 01.02.2023 of the Commission.

5.             OP no.3 in its reply stated that present complaint is not maintainable as Shri Ravinder Kumar Sharma is using the vehicle for commercial purpose. It is further pleaded that Mr. Ravinder Kumar Sharma has not filed any authority or other document showing how he is representing the sole proprietorship concern. Furthermore, it is worthwhile mention that the complaint is drafted in such a way as to indicate that the vehicle was used for commercial profit-making activities of the sole proprietorship concern, and for advancing its business interests and to increase the profit and business of the proprietorship concern and not for use of Mr. Ravinder Sharma. As per Consumer Protection Act, 2019 in section 2(7) thereof, specifically states that goods used by a consumer for commercial purposes would be excluded, and a person who uses a good for commercial purposes cannot file a consumer case. It is further pleaded that the complainant would indicate that the primary grievance pertains to defects in tyres. It would be pertinent to refer to the new vehicle warranty document wherein under the heading of “what is not covered”, OP no.3 clearly mentions in point no.2 and 21 that tyres are not covered under the vehicle warranty provided to the consumer and that furthermore, the warranty for the tyres are provided by their respective manufactures and not by Ford. The complainant alleged that there were some defects in the tyres provided in the vehicle, therefore, in the present case, the complaint ought to have impleaded the tyre manufacturer, who is a necessary and proper party to the present complaint. It is further pleaded that vehicle in question in the last 5-6 years has covered more than 1,17,549 kms therefore, it is clear that the same is a well used vehicle and same has been thoroughly used by the complainant for all the business activities. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

6.             Parties then led their respective evidence.

7.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of legal notice dated 02.07.2019 Ex.C1, copy of postal receipts Ex.C2, copy of vehicle report card Ex.C3 and Ex.C4, copy of order dated 29.08.2019 Ex.C5, copy of customer information sheet Ex.C6, copy of tax invoice/repair order dated 25.06.2019 Ex.C7, copy of repair order Ex.C8, copy of bill Ex.C9, copy of tax invoice/repair order Ex.C10, copies of message Ex.C11 to Ex.C14 and closed the evidence on 17.10.2022 by suffering separate statement.

8.             On the other hand, learned counsel for the OP no.1 has tendered into evidence affidavit of Rajan Manager Ex.OP1/A, copy of reply of legal notice Ex.OP1, copy of return acknowledgement Ex.OP2 and closed the evidence on 01.02.2023 by suffering separate statement.

9.             Learned counsel for the OP no.3 has tendered into evidence affidavit of Saurabh Makhija Ex.OPW3/A, copy of authorization to sign legal documents on behalf of the company Ex.OP3/1, copy of warranty and service guide Ex.OP3/2 and closed the evidence on 01.02.2023 by suffering separate statement.

10.           We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

11.           Learned counsel for the complainant, while reiterating the contents of complaint, has vehemently argued that the on 26.06.2018 complainant had purchased a car make Ford Eco Sport. From the very beginning of its purchase, he noticed that wheels of the abovesaid car are bubbling and making noise while driven. There is a manufacturing defect in all the Alloy Wheels of the vehicle. Complainant requested the OPs to change all the Alloy Wheels as his vehicle is still under company warranty, but OPs did not pay any heed to the request of complainant and lastly prayed for allowing the complaint. Learned counsel for complainant relied upon the judgments in case titled as M/s Paramount Digital Color Lab and Ors etc. Versus M/s Agfa India Pvt. Ltd. and Ors. etc. in civil appeal nos. 2109-2110 of 2018 decided on 15.02.2018.

12.           Per contra, learned counsel for the OP no.1, while reiterating the contents of written version, has vehemently argued that vehicle was purchased in the name of firm M/s Shiv Shakti Graphics for business-cum-commercial purpose, thus, complainant does not come under the definition of consumer. He further argued that the vehicle was purchased and the same is being used by so many persons for business purposes and thus it is being mishandled and there is no question of any replacement any alloy wheel of the vehicle in question, as the vehicle is out of warranty and prayed for dismissal of the complaint.

13.           Learned counsel for the OP no.3, while reiterating the contents of written version, has vehemently argued that complainant purchased the vehicle in question for commercial activities thus, complainant does not come under the definition of consumer. He further argued that complainant has not impleaded the manufacturer of the tyres as a party and lastly prayed for dismissal of the complaint.

14.           We have duly considered the rival contentions of the parties.

15.           The OPs have taken a plea that vehicle in question was being used for commercial purpose.

16.           The onus to prove its version was relied upon the OPs, but OPs have miserably failed to prove on record that the vehicle in question was used for commercial purpose.  In M/s Paramount Digital Color Lab’s case (supra) the Hon’ble Supreme Court held that if person purchases goods for commercial purpose and such commercial purpose is for earning livelihood by means of self employment-Such person will come within definition of consumer-Appellant purchased machine for self employment- Quality of ultimate production of machine depends upon skill of person who uses machine-In case of exigencies, if person trains another person to operate machine so as to produce final product based on skill and effort in matter of photography and development, same cannot take such person out of definition of consumer.  In view of the ratio of the law laid down in the aforesaid judgment, facts and circumstances of the case, the present complaint is maintainable before this Commission.  Hence, plea taken by the OPs has no force.

17.           The vehicle in question purchased on 25.06.2018, vide invoice Ex.C9 from OP no.1, for the consideration of Rs.11,89,300/-. It is evident from service record Ex.C3 dated 07.06.2018, complainant approached to the OPs for having defects in the wheels of the vehicle. OPs have taken a plea that wheel does not fall under warranty, but no terms and conditions of warranty have been placed on file by the OPs. It is evident from Tax Invoice (Repair order-customer) Ex.C7 dated 25.05.2019, complainant repaired the vehicle in question from AADIT Motors Pvt. Ltd., Panipat and this fact is not denied by the OPs. Hence, it is proved on record that wheels of the vehicle in question were having manufacturing defect.

17.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to replace the alloy wheels of the vehicle in question with new one of the same make or same value. We further direct the OPs to pay Rs.10,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/- towards the litigation expenses.  This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:12.06.2023.

                                                        President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

       

                (Vineet Kaushik)        (Dr. Rekha Chaudhary)      

                      Member                        Member