Delhi

North

RBT/CC/158/2022

RAM BHAJAN - Complainant(s)

Versus

LALLY AUTOMOBILE PVT LTD - Opp.Party(s)

08 Nov 2024

ORDER

  District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

RBT/Consumer Complaint No:158/2022

 

In the matter of:

 

Sh. Ram Bhajan,

B-226, Sec-24, Rohini,

New Delhi-110085.                                       …                          Complainant

 

Vs

Honda Car,

Lally Automobiles Pvt. Ltd.,

D-196, Okhala Industrial Area,

Phase-1, Delhi.                                   …                          Opposite Party No.1

 

Courtesy Honda,

Wazirpur Industrial Area,

Wazirpur Delhi.                                  …                          Opposite Party No.2

 

ORDER

08/11/24

 

Ashwani Kumar Mehta, Member:

 

1.       The Complainant had filed this complaint under Section 12 of the Consumer Protection Act, 1986 before Hon’ble DCDRC-V, Shalimar Bagh where it was assigned the Consumer Complaint No.201/2018. It was further transferred to this Commission by the Hon’ble Delhi State Consumer Disputes Redressal Commission vide its order dated No.F.1/SCDRC/Admn/Transfer/2022/330 dated 16.04.2022 and accordingly, this complaint was registered as RBT/CC No.158/2022.

2.       The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that:-

1. On 20.01.2017, the Complainant purchased a new Honda car (Amaze SMT) bearing registration No. DL1RTB9247 and chasis No.MAKDF153AHN210781, Colour-white Orchid PE from OP-2 i.e. Courtesy Honda, Wazirpur Industrial Area, Wazirpur, Delhi-110052.
2. The Complainant purchased aforesaid vehicle from OP on the monthly instalment payment basis.
3. The aforesaid car was purchased for earning livelihood only as the Complainant belongs to poor family and is sole earning hand for his family.
4. At the time of enquiry, the OP-2 affirmed that GPS enabled, CNG fitted vehicle with endorsement on insurance paper along with 40,000/- Km. warranty and Rs.40,000/- discount shall be provided to the buyer but the Opposite Party did not provide these facilities completely and provided Rs.10,000/- discount instead of Rs.40,000/-
5. After many requests, the Opposite Party installed GPS but it was not working properly and OP also denied for free service/maintenance on running within till 40,000/- Km.
6. The Opposite Party has issued an insurance policy for private car instead of radio taxi.
7. After facing problems, Complainant made several e-mail regarding and sent notice to OP-1 through speed post but neither OP-1 nor OP-2 solved the Complainant’s problem.
8. Due to aforesaid acts and actions of deficiency in service on the part of the OPs, the Complainant and his other family members have suffered great mental shock and agony, which though can’t be compensated in terms of money yet the Complainant is tentatively claiming a total cost of vehicle along with compensation, litigation from both the OP on this account.

 

3.       It has also been alleged that the Complainant has suffered mental agony. Physical harassment and loss of repudiation and goodwill in the eyes of his own family, relatives and friends since the OPs have not solved the grievance. The acts and action of the OP clearly reflect that there is “Deficiency” in providing service by the OPs to the Complainant. The complainant has, therefore, filed this complaint praying for directions to the OPs to:-

1. provide compensation for the loss of business/livelihood from June;
2. install GPS;
3. provide warranty;
4.  pay Rs.23,953/- i.e. cost of insurance;
5. pay discount of Rs.30,000/-

4.       The Complainant has enclosed copy of complaint no.569517 dt.10.01.2018 filed to Consumer helpline, driving license and RC, letter dated 21.02.2018 and email dated 10.01.2018 and copy of insurance policy in support of the allegations.

5.       Accordingly, notices were issued to the OPs to defend the complaint before the commission but the OPs neither appeared nor did send any communication despite service of the notice. Since the OPs have chosen not to contest the allegations levelled in the complaint despite service and have been proceeded ex-parte.

6.       The complainant has filed evidence by way of Affidavit and written arguments also. Though the OPs were already proceeded ex-parte yet appeared for participating in the arguments and filed written arguments. The OPs were allowed to participate in the arguments in the interest of justice and their averments were perused which are discussed below:-

1. the Complainant has never raised any claim with any of the OPs, in as much as no proof has been adduced in the complaint of any contact with the OPs or deficiency as alleged, moreover, all the relief sought are mere wishes of the Complainant without any lawful basis which is not permissible in law. Moreover, no cause of action (part or whole) ever existed or exists to try the present complaint, therefore, no liability can be fastened on the OPs.
2. the Complainant has not given any specific fact or of the alleged deficiency and the burden to prove the fact has not been established by the Complainant in the complaint. The liability of the OPs is not proved, therefore, OPs are not liable for any amount to the Complainant either jointly or severally.
3. the position of the law that the onus of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims on preponderance of probability against the defendant. As per the principles of Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesarswami & V.P. Temple & another, VI (2003) SLT 307 observed that whether a civil or a criminal case, the anvil for testing of ‘proved’, ‘disproved’ and ‘not proved’, as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same.
4. the Complainant miserably failed to adduce any documents for the relief is sought and the alleged deficiencies are nothing but baseless allegations levelled by the Complainant to enrich himself wrongfully from the Opposite Parties and there is misrepresentation, suppression of facts, thus the OPs are not liable,
5. relief sought by the Complainant are baseless in as much as:-

Sl. No.	Relief sought	Document adduced	Claim raised with OPs
	Loss of income	No	No
		No	No
	Warranty (40,000Kms)	No	No
	Insurance commercial	Yes	Already commercial
	Discount (Rs.30,000/)-	No	No
	CNG Endorsement	Retro-fitted	Warranty lapses

 

6. Moreover, as per the averments, the insured vehicle was financed by Canara Bank/Mahindra & Mahindra Bank, however, it has not been made a party to the present complaint, therefore, the complaint must be dismissed for non-joinder/misjoinder of necessary party.
7. There are material contradictions in the averments made by the Complainant between facts averred in the present complaint.
8. The ex-parte evidence filed by the complainant by way of Affidavit, is not proper and invalid for want of proper attestation.
9. the Complainant has asked for exaggerated amounts which is not permissible in contracts of insurance.

7.       By participating in the argument proceedings, the OPs have tried to rebut the allegations levelled in the complaint on technical grounds because they were not legally permitted to file any documentary evidence in support of their rebuttal. However, we have perused their submissions carefully and observed that:

1. The objections raised by the OPs at Para 13 of the written arguments stating that ex-pate evidence filed by the complainant, is not proper and invalid for want of proper attestation but this objection is baseless and does not merit any consideration as the affidavit is properly signed and notarised by the Complainant who is presenting his case in person.
2. The Complainant has sent email dated 10.01.2018 followed by a letter through speed post to the OPs highlighting his grievances that:-

1. GPS has not been working and GPS bill has not been given to him;
2. CNG is not included in the insurance;
3. Proper discount of Rs.40,000/- has not been given;
4. Warranty upto 40,000 Kms has not been given.

In this regard, at Para 8 of the written submissions, the OPs have mentioned that the Complainant has neither filed documents nor raised the claim with the OPs with respect to the loss of income, GPS, warranty and discount of Rs.30,000/-, however, it has been stated that the insurance is already provided for commercial and CNG is retrofitted.

3. The copy of letter dated 21.02.2018 and email dated 10.01.2018 has neither been denied nor admitted by the OPs very cleverly which is considered as deemed acceptance of the deficiency on these issues. This also proves that non-appearance before this commission to contest the complaint initially, despite service of the notices issued by the Commission, was also the part of the strategy of the OPs who have been very prompt to appear at the time of arguments to rebut the deficiency in service on their part, only by way of arguments.

8.       However, in view of the above circumstances we have also perused the copies of the documents filed by the Complainant specifically copy of RC and insurance policy schedule which indicates that the vehicle is financed from Mahindra and Mahindra Finance Ltd. and registered as Motor Cab. This proves that the insurance was commercial and the vehicle was properly registered as Motor Cab/commercial. As such, the Complainant has failed to prove any deficiency on these two issues.  However, on the remaining issues of loss of income, GPS, Warranty and discount, we feel that there is deficiency of service on the issues (i) GPS which needs to be replaced, (2) Warranty which needs to be granted till running of 40000 Kms, (3) discount for which balance amount of Rs.30,000/- (Rs.40,000/- - Rs.10,000/-) is to be paid.

9.       Therefore, we feel appropriate to direct the OP-1 & 2 (jointly and severally) to (i)  replace the GPS and (ii) provide warranty up to running of vehicle till 40,000 Kms. within 30 days from the issue of this order failing which they shall be liable to pay Rs.25000/- to the complainant and this amount shall bear interest @9% from the expiry of 30 days period till the date of payment.

10.     In addition, we also direct to the OPs-1&2 to pay the Complainant, jointly and severally:-

a.       Rs.30,000/- (Rs. Thirty Thousand only) within 30 days with 9% interest from 02.02.2017 (date of registration of vehicle) till the date of payment.

b.       Rs.25,000/- (Rupees Twenty Five Thousand only) to the complainant as compensation for the mental  pain, agony and harassment caused.

11.     It is clarified that the aforesaid amount shall be paid by the OP 1 & 2, jointly and severally, within 30 days as directed above at para 10 (i) & (ii). In case, the abovesaid amount is not paid by the OPs to the Complainant within the period as directed above, the OPs shall be liable to pay interest @12% per annum on the entire awarded amount from the date of expiry of 30 days period.

12.     Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

               ASHWANI KUMAR MEHTA                                              HARPREET KAUR CHARYA

                              Member                                                                                    Member      

                        DCDRC-1 (North)                                                              DCDRC-1 (North)

                                                            DIVYA JYOTI JAIPURIAR

                                        President 

                     DCDRC-1 (North)