Haryana

Kurukshetra

139/2017

Aman Garg - Complainant(s)

Versus

Labh Raj - Opp.Party(s)

Neeraj Gupta

13 Jan 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

                                        Consumer Complaint No.139 of 2017.

                                        Date of Instt.:19.7.2017.                                                                    

                                          Date of Decision:13.1.2020.

 

1. Aman Garg s/o Shri Shiv Dutt Garg, aged 29 years;
2. Suraj Garg s/o Shri Shiv Dutt Garg, aged 27 years,

Both residents of House No.122-B, Model Town, Pehowa.

 

                                                                …….Complainants.                                                Versus

 

1. Lekh Raj Auto Plaza Pvt. Ltd., (an authorized dealer of Mahindra & Mahindra), Kaithal & Jind, through its General Manager Varun Mehta.
2. Mahindra Vehicle Manufactures Pvt. Ltd., Plot No.A-1, MDC Phase IV, Chakan Industrial Area, Village Nighoje Taluka Khed, Pune-410501, through its General Manager.

        ….…Opposite parties.

 

Complaint under Section 12 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member.       

                   Shri Issam Singh Sagwal, Member.                                                   

Present:     Shri Neeraj Gupta, Advocate for the complainants.          

Shri Mahesh Sodha, Advocate for the opposite party No.1.            

Opposite party No.2 ex-parte.

 

ORDER

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by the complainants Aman Garg and Suraj Garg against Lekh Raj Auto Plaza and other, the opposite parties.

2.             The brief facts of the complaint are that the complainant No.1 purchased a vehicle Mahindra TUV from the OP No.1 in the name of complainant No.2. At the time of purchase the said vehicle, the OP No.1 had assured him that your vehicle is of good quality and its mileage is 19 Kilometer/per liter. The said vehicle was not giving the mileage upto the mark as per the assurance of the OP No.1. The complainant No.1 got filled the tank of the said car from M/s Sandhu Station, Bilochpura, Pehowa on 05.12.2016 for a sum of Rs.3,000/- and again got filled the tank on 08.12.2016 from Dashmesh Petroleum, Pehowa for a sum of Rs.2,000/-. On 09.12.2016, the complainant No.1 started travelling by said car to give his judiciary examination alongwith his companion Daljeet Singh Mor, Advocate and his driver to be held on 11.12.2016 at Jabalpur. On 09.12.2016, he got filled the tank of said vehicle for a sum of Rs.2,000/- from Tarachand Indersain Sonepat. The complainant alongwith above-said persons stayed at Shanti Sewa Dham, Vrindavan on 09.12.2016 and on 10.12.2016 after reaching Jhansi, complainant No.1 got filled tank for a sum of Rs.2800/- in the evening. Due to paucity of funds caused by poor average of the car, which is around 6 KM/per liter, complainant sent the car from Jhansi to Mathura through his driver and he alongwith Daljeet Mor caught a bus of Mahakal Travels at about 08:00 PM from Jhansi and reached at Jabalpur in the next morning at 09:00 AM. The complainant No.1 alongwith Daljeet Mor got reservation of train on 11.12.2016 and reached Mathura on 12.12.2016 and again got filled the tank of the car. On 14.12.2016, the complainant No.1 alongwith his colleagues visited the office of OP No.1 and told about poor average of said car, who did mechanical job of the car and took two hours and returned the car to him by saying that now it will give average of 19 KM/per liter. The complainant No.1 stated that he will pay balance sum of Rs.32,000/- only after verifying the fact that the average of the car is upto the mark. This time too, the said car gave an average of 13 KM/per liter and complainants are not satisfied with it. The Ops did not give full papers of the said car required for the registration, as the day is going on, a fine is increasing to the tune of Rs.400/- per day upon the complainants. A legal notice dated 02.2.2017 has been sent to the OPs through his counsel Shri Neeraj Gupta, Advocate. A reply dated 07.2.2017 to the notice has been sent. The complainants requested the OP No.1 so many times to change the said car, but all in vain. The complainants purchased the car for better conveyance, whereas, due to poor average of car, they felt harassment and mental agony. This way, the OPs are deficient in services. Hence, this complaint.

3.             Upon notice, the opposite party No.1 appeared and filed written statement raising preliminary objections regarding jurisdiction; locus-standi and maintainability. It is stated that the complainants have not come with clean hands and has suppressed the true & material facts from this Hon’ble Forum. The true & material facts are that on 14.12.2016, the complainant alongwith his colleagues came to the dealership of OP No.1 with the doubt of its poor average. On the same day, it was informed to the complainant that there is way to take this average i.e. road should be identical, maintain the car as per service schedule, good fuel must be in car, pressure of air in tyres, driving @ speed of 60 and it is also depends upon person to person in which manner the car is driving and all windows glass should be closed. That on the same day, the OP No.1 had cleared the doubt of the complainant and the complainant went away with his full satisfaction and speechless. At the time of purchasing the vehicle, an amount of Rs.32,000/- was short with the complainant and his brother and for discharging his liabilities, a cheque bearing No.013629 dated 05.12.2016 for Rs.32,000/- of his Account bearing No.073001505391 of ICICI Bank, Pehowa Branch was given, but the said cheque was dishonoured and several requests have made by to the complainant, but he misbehaved with the lady staff and other and told that he will not give anything as nobody can do anything against him, as he is an advocate. Thereafter, the OP No.1 filed a complaint u/s 138 of NI Act, in which, the complainant was summed by the Court and NBW have also been issued against him, which is pending for 12.1.2018. This fact is well within the knowledge of the complainants and this notice is only to avoid the pending dues. On merits, the rest of the contents of the complaint are denied and prayed for dismissal the same.

                Upon notice, none appeared on behalf of the OP No.2 before this Forum, therefore, he was proceeded against ex-parte vide order dated 04.9.2017.

                It is pertinent to mention here that during the pendency of the complaint the complainants moved an application for sending the car to authorized mechanic, which was allowed vide order dated 17.12.2018 with the direction to the complainant to send the said car to MVI, Haryana Roadways, Kurukshetra for inspection, but as per report of Motor Vehicle Inspector, Haryana Roadways, Kurukshetra, the complainant Aman has not appeared before him for inspection. As such, said application became infructuous. The complainant again moved an application for granting permission to check average of the car in question, but the said application was dismissed being not maintainable vide order dated 08.5.2019 of this Forum.

4.             The learned counsel for the complainants tendered affidavits Ex.CW1/A to Ex.CW6/A alongwith documents Ex.C-1 to Ex.C-10. On the other hand, learned counsel for OP No.2 tendered affidavit Ex.RW1/A alongwith documents Ex.R-1 to Ex.R-12.

5.             We have heard learned counsel for the parties and have perused the case file carefully.

6.             The learned counsel for the complainants has reiterated all the averments mentioned in the complaint. He argued that the complainant No.1 purchased a vehicle Mahindra TUV from the OP No.1 in the name of complainant No.2. He further argued that at the time of purchase the said vehicle, the OP No.1 had assured him that its mileage is 19 Kilometer/per liter, but the said vehicle was not giving the mileage upto the mark. The complainant No.1 got filled the tank of the said car from M/s Sandhu Station, Bilochpura, Pehowa on 05.12.2016 for a sum of Rs.3,000/- and again got filled the tank on 08.12.2016 from Dashmesh Petroleum, Pehowa for a sum of Rs.2,000/-. On 09.12.2016, the complainant No.1 started travelling by said car to give his judiciary examination alongwith his companion Daljeet Singh Mor, Advocate and got filled the tank of vehicle for a sum of Rs.2,000/- from Tarachand Indersain Sonepat. On 10.12.2016 after reaching Jhansi, complainant No.1 got filled tank for a sum of Rs.2800/- in the evening. Due to paucity of funds caused by poor average of the car, which is around 6 KM/per liter, complainant sent the car from Jhansi to Mathura through his. The complainant No.1 alongwith Daljeet Mor got reservation of train on 11.12.2016 and reached Mathura on 12.12.2016 and again got filled the tank of the car. On 14.12.2016, the complainant No.1 alongwith his colleagues visited the office of OP No.1 and told about poor average of said car, who did mechanical job of the car and returned the car to him by saying that now it will give average of 19 KM/per liter. The complainant No.1 stated that he will pay balance sum of Rs.32,000/- only after verifying the fact that the average of the car is upto the mark. This time too, the said car gave an average of 13 KM/per liter and complainants are not satisfied with it. He further argued that the OPs did not give full papers of the said car required for the registration. This way, the OPs are deficient in services.

7.             Contrary to it, the learned counsel for the OP No.1 has also reiterated all the averments mentioned in the reply. He argued that the complainant alongwith his colleagues came to the dealership of OP No.1 with the doubt of its poor average and on the same day, the OP No.1 had cleared the doubt of the complainant and the complainant went away with his full satisfaction and speechless. He further argued that at the time of purchasing the vehicle, an amount of Rs.32,000/- was short with the complainant and his brother and for discharging his liabilities, a cheque bearing No.013629 dated 05.12.2016 for Rs.32,000/- of his Account bearing No.073001505391 of ICICI Bank, Pehowa Branch was given, but the said cheque was dishonoured and several requests have made by to the complainant, but he misbehaved with the lady staff and other and told that he will not give anything as nobody can do anything against him, as he is an advocate. The OP No.1 filed a complaint u/s 138 of NI Act, in which, the complainant was summed by the Court and NBW have also been issued against him. He further argued that in that complaint the complainants have compromised the matter by paying the balance amount of Rs.32,000/- to the OPs. He further argued that the present complaint has been filed by the complainants with ulterior motive just to escape from their liabilities and prayed for dismissal the same.

8.             There is no dispute between the parties that the complainant No.1 purchased Mahindra TUV from the OP No.1 in the name of complainant No.2. The main grievance of the complainants is that at the time of purchase the said vehicle, the OP No.1 assured that vehicle is of good quality and its mileage is 19 Kilometer/per liter, but the same was not giving the mileage upto the mark. The complainants further alleged that he requested the OP No.1 so many times to change the said car, but all in vain and that’s why he had not paid the balance amount of Rs.32,000/- to the OPs. To support their contentions, the complainants produced documents Ex.C1 to Ex.C10, but there is no document on the case file, vide which, it can be proved that the vehicle was giving less mileage than the assured one. However, it is a settled principle of law that mere allegations are not sufficient, those are necessary to be proved by cogent evidence, but in the present case, the complainants have failed to prove their contentions by leading cogent and convincing evidence. Moreover, during the pendency of the complaint the complainants moved an application for sending the car to authorized mechanic, which was allowed vide order dated 17.12.2018 with the direction to the complainant to send the said car to MVI, Haryana Roadways, Kurukshetra for inspection, but as per report of Motor Vehicle Inspector, Haryana Roadways, Kurukshetra dated 11.01.2019, the complainant Aman has not appeared before him for inspection, which creates serious dent to the case of the complainant. On the other hand, the learned counsel for the OP No.1 has contended that when the complainant alongwith his colleagues came to the dealership of OP No.1 with the doubt of its poor average, then the OP No.1 had cleared the doubt of the complainant and the complainant went away with his full satisfaction and speechless. He further contended that at the time of purchasing the vehicle, an amount of Rs.32,000/- was short with the complainant and for discharging his liabilities, a cheque bearing No.013629 dated 05.12.2016 for Rs.32,000/- of his Account bearing No.073001505391 of ICICI Bank, Pehowa Branch was given, but the said cheque was dishonoured. Thereafter, the OP No.1 filed a complaint u/s 138 of NI Act, in which, the complainant was summed by the Court and NBW have also been issued. To prove this fact, the OP No.1 produced copies of orders dated 12.1.2017, 04.2.2017, 12.1.2018 and 21.5.2019 (Ex.R2 to Ex.R-5), vide which, the complainant No.2 was summoned as accused in a criminal case u/s 138 of NI Act. However, in that case, on 21.5.2019, the complainant No.2 compromised the matter with the OPs by paying the balance amount and discharged his liabilities from the said case. It is made clear that if the complainants were having any issues regarding the mileage of the vehicle in question and that’s why they had not paid the balance amount of Rs.32,000/- to the OPs, then they can raise this issue at the day of compromise on 21.5.2019 before the Civil Court, but why the complainants remained mum on this issue at that time, reason best known to them. So, from above, it is clear that the act and conduct of the complainants were not good from the very beginning and instead of paying the balance amount of Rs.32,000/- to the OPs, they filed the present complaint just to shift undue burden upon the OPs just to escape from their financial liabilities. Keeping in view the above facts and circumstances of the present case, we are of the considered view that the complainants have not been able to prove their case against the OPs by leading cogent and reliable evidence. Accordingly, we dismiss the present complaint leaving the parties to bear their own costs. Certified copy of this order be supplied to the parties, forthwith, free of cost, as permissible under Rules. File be indexed and consigned to the record-room.

Announced in open Forum:

Dt.:13.1.2020.                                                            (Neelam Kashyap)

                                                                        President.

 

(Issam Singh Sagwal),         (Neelam)       

Member                             Member.