Haryana

Ambala

CC/88/2018

Rajinder Singh - Complainant(s)

Versus

KBS Motors - Opp.Party(s)

28 May 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

 

                                                          Complaint case no.        :  88 of 2018

                                                          Date of Institution         :  08.03.2018

                                                          Date of decision   :  28.05.2019

 

 

Rajinder Singh S/o Mulakh Raj, Resident of House No.82/1300, Baldev Nagar Camp, Ambala City.

 

…. Complainant.

                                                          Vs.

 

1.       K.B.S. Motors, Village Tepla (Ambala to Jagadhari Road), Ambala Cantt. (through its Manager)

2.       Mahindra and Mahindra Ltd. Mahindra Tower, Akruli Road, Kandivali (EAST), Mumbai-400101(Through its M.D.)

 

….. Opposite Parties

  

 

Complaint Under Section 12 of the Consumer Protection Act

 

 

Coram:       Ms. Neena Sandhu, President

Ms. Ruby Sharma, Member.

Sh. Vinod Kumar Sharma, Member.

.

                            

Present:       Sh. Jai Bhagwan Rana, Advocate, counsel for complainant.

Sh. Shekhar Bansal,  Advocate, counsel for the OP No.1.

Sh. Vipul Singh, Advocate, counsel for OP No.2.

 

ORDER:     SH. VINOD KUMAR SHARMA, MEMBER.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties(hereinafter referred to as ‘Ops’) praying for issuance of  following directions to them:-

1. To replace the defective engine of the vehicle in question or to refund an amount of Rs. 2,30,000/- alongwith interest @ 18% P.A from the date of purchase of three wheeler till its realization.  
2. To pay of Rs.50,000/- as compensation for mental agony and physical harassment suffered by him. 
3. To pay Rs.5,000/- as cost of litigation.

Or

any other relief whichthis Hon’ble Forum may deemfit.

 

 

The brief facts of the complaint are that the complainant had purchased a Auto Rickshaw (Three Wheeler) on 31.12.2016, bearing engine no. R6L2839493, Chassis no.MA1LE2FYSG5L89446, Color of Body BLAKYELL from the OP No.1 after paying Rs.2,30,000/- in cash and the same was registered in his name vide Registration No.HR-37D-4206 by the Registering Authority i.e. R.T.A. Ambala.  The complainant was facing a lot of problems in the said three wheeler which are enumerated as below:-  

a) Abnormal noise in engine.

b) Automatically stopping of engine.\

  

On  24.01.2018, the complainant  approached  the OP No.1 for the rectification of the  abovesaid problems. The service staff of the OP No.1  advised  the complainant that  the same is having major defects and it  brings to the workshop of OP No.1. One and half month passed but the engine of above said three wheeler has not repaired by the OP No.1. The complainant approached to the service centre several times but no action has been taken on the repeated requests of the complainant till date.  Due to this, the complainant has suffered a huge financial loss and physical harassment. Hence, the present complaint.

2.               Upon notice, OP No.1 appeared through counsel and filed written version raising preliminary objections qua complaint is not maintainable; no cause of action arose in favour of the complainant and complainant has not come with clean hands. On merits, it is stated that the complainant purchased vehicle make Mahindra ALFA DX BS III-Passenger, bearing Engine No.R6L2839493 Chassis no. G5L89446, now registration no. HR37D4206, from the OP No.1 and the warranty of the vehicle started with effect from 05.01.2017 (08 months with unlimited km) and also covered with Shield Warranty upto 07.01.2019. The complainant has been regularly getting the vehicle serviced. On receiving the complaint from the complainant, on 27.01.2018 with regard to abnormal sound in engine. The OP No.1 repaired the engine of the vehicle by replacing with the new one parts.  On 05.02.2018 the OP No.1 also informed the complainant that the repaired the engine carried “extended warranty’ because normal warranty was lapsed of the said vehicle as per warranty terms and conditions. In extended warranty the OP No.1 repaired the vehicle by replacing defected parts. Finally the OP No.1 repaired the vehicle and removed all the defects on 05.03.2018. The complainant was informed about it but he did not come to the workshop of the OP No.1 to pick-up his vehicle. After repair of the vehicle in question of the complainant he was intimated much earlier that his vehicle is ready and come to the work-shop for picking up the vehicle. The GM of KBS Motors personally visited the residence of the complainant and asked him to pick-up his vehicle after his complete satisfaction that his vehicle is completely fit and fine. There is no problem in the engine. Even then the complainant did not come to the workshop to pick-up his vehicle The OP also sent him written intimation letters but he refused to receive the letters. It is not denied that complainant requested to the OP No.1 to modify the vehicle seating capacity and they required 10-15 days for special approval. As per Sale Certificate from M & M, there are only 04 seating capacity allowed for this vehicle but the complainant modified the vehicle seating capacity 10. The vehicle got defective due to overloading by the complainant. Thus there is no deficiency on the part of OP No.1 and prayed for dismissal of the present complaint.

Upon notice, OP No.2 appeared through counsel and filed written version raising preliminary objections qua complaint is not maintainable being false and frivolous; vehicle using for commercial purpose; no cause of action and complainant does not fall within the definition of a consumer. On merits, it is stated that the relationship between the OP No.2 and its dealers i.e. OP No.1. The relationship between the two is on principle to principle basis and not on principle to agent basis.  Complainant is using the vehicle for commercial purpose to earn profit and gain, therefore, the complainant is not the consumer as per provision of Consumer Protection Act. It also stated that the vehicle has been used extensively and upto 27.01.2018 vehicle had run 19144 kilometers within span of 13 months from its purchase. He has modified the vehicle to increase the sitting capacity in order to earn more. From the perusal of the sale certificate of the vehicle, it revealed that the sitting capacity inclusive of driver is 4 persons but the complainant has modified the vehicle to the load of 10 persons. It further stated that the extended warranty would lapse due to the modifications made in the vehicle. The vehicle was repaired and defected parts have been replaced. The vehicle was ready for delivery on 05.03.2018. It has been conveyed to complainant to collect the vehicle but he did not come forward to take the delivery of the vehicle. Ultimately, when the complainant did not come forward to take the delivery of the vehicle then on 27.03.2018 OP No.1 has written letter to complainant to collect the vehicle. Despite everything the complainant did not come forward to collect the vehicle. Thus, there is no deficiency on its part and prayed for dismissed the present complaint.

3.                To prove his version the complainant tendered his affidavit Annexure C/A alongwith documents as Annexure C-1 to C-10 and closed the evidence. On the other hand, learned counsel for the OP No.1, tendered affidavit, Annexure R-1/A along with documents, Annexure R-1/1 to R-1/7 and closed the evidence. Learned counsel for the OP No.2, tendered affidavit, Annexure OP-2/A along with documents, Annexure R-2/1, OP-2/2 & OP-2/4 and closed the evidence.

4.                We have heard the learned counsels of the parties and carefully gone through the case file.

5.                Undisputedly, the complainant has purchased a Auto Rickshaw (Three Wheeler) on 31.012.2016, bearing Engine No. R6L2839493, Chassis No.MA1LE2FYSG5L89446, Color of Body Blakvell from the OP No.1 after paying Rs. 2,30,000/- in cash as per Annexure C-5 to C-9 and same  has been registered vide registration No.HR-37D-4206 by the Registering Authority, Ambala. Due to problems in the vehicle of the complainant, he had to visit the service centre time and again for getting the defects removed. The counsel for the complainant has vehemently argued that the OPs have failed to rectify the defects in the engine of three wheeler of the complainant and reiterated the version as enumerated in the complaint and prayed to allow the complaint of the complainant.

                    On the contrary, the counsel for the OP No.1 argued that there is no manufacturing defect in the vehicle and the vehicle is still lying  ready  roadworthy with OP No.1 but the complainant  did not turn up to collect the same despite sending letter (Annexure OP-2/4) and personal visits. It has argued that the engine of the vehicle repaired with new parts. The counsel for OP no.1 further argued that the complainant on his own modify the seating capacity of his vehicle in question from 4 to 10 persons in violation of the terms and conditions mentioned in the sale certificate. Therefore, he himself is liable for this act and conduct. It has been prayed that the present complaint filed by the complainant may be dismissed with cost.

The counsel for the OP No.2 argued that there is no relationship between the complainant and OP No.2 and the vehicle in question was used for commercial purpose, thus the complainant does not fall within the definition of the consumer under the Consumer Protection Act and the same is liable to be dismissed.

6.                After going through the case file as well as material on record , it reveals that the complainant modified the seating capacity of the vehicle on his own in violation of the terms and conditions. He did not take the delivery of the vehicle deliberately after repeated requests made by the OP No.1. No expert report has been placed on record to prove that there is some manufacturing defect in the vehicle in question as such we are of the opinion that there is no deficiency in service on the part of the OPs. Moreover, the complainant has not moved an application to get the vehicle examined through any expert to prove that the vehicle in question was giving any problem. Mere pleadings without concrete evidence have no value in the eyes of law. 

7.           In view of the above said discussion, we hereby dismiss the present complaint. Parties are left to bear their own costs. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :28.05.2019

 

 

 

 

          (Vinod Kumar Sharma)   (Ruby Sharma)   (Neena Sandhu)

              Member                        Member             President