Punjab

Rupnagar

CC/18/66

Sanjeev kumar - Complainant(s)

Versus

Libra Automobiles Pvt. Ltd. - Opp.Party(s)

Sh. Kamal Singh,Adv

31 Jan 2019

ORDER

THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                  Consumer Complaint No. : 66 of 14.08.2018

                                  Date of decision           :    01.02.2018

 

Sanjeev Kumar, son of Sh. Girdhari Lal, resident of Village Daroli (Upper), Tehsil Nangal, District Rupnagar.  

                                                                    ......Complainant

                                             Versus

1. Libra Automobiles Limited, Village & P.O. Bahdala, Nangal Road, Una, Tehsil & District Una (H.P.) through its authorized signatory.
2. Tata Motors Car Manufacturer Plant, 50/1, Bhosari Road, Sector-16, Ayush Garden, Chikhali, Pimpri- Chincward, Maharastra (India) -411062.

            ....Opposite Parties

                                    Complaint under Section 12 of the                                               Consumer Protection Act, 1986

QUORUM

 

                         SH. KARNAIL SINGH AHHI, PRESIDENT

                         CAPT. YUVINDER SINGH MATTA, MEMBER

 

ARGUED BY

 

Sh. Kamal Singh Rana, Adv. counsel for complainant  

Sh. Pargat Singh Kamalpur, Adv. counsel for O.P. No.1

Sh. Rajiv Kumar, Adv. counsel for O.P. No.2

 

                                             ORDER

               SH. KARNAIL SINGH AHHI, PRESIDENT

1. Sh. Sanjeev Kumar, son of Girdhari Lal, resident of Village Daroli (Upper), Tehsil Nangal, District Rupnagar, has filed the present complaint seeking directions to the opposite parties to refund the amount of Rs.60,000/- as down payment of the vehicle in question along with 14 installments amounting to Rs.1,37,760/- i.e. Rs.9840/- per installment along with interest and future interest @ 12% per annum till the date of realization; to pay Rs.1,00,000/- as compensation for mental and physical harassment suffered by the complainant; to pay Rs.20,000/- as litigation expenses, in the interest of justice.
2. Brief facts made out from the complaint are that on 15.03.2013 the complainant had purchased a vehicle i.e. Tata Motor Ace Dicor Diesal bearing Registration No.PB-12Q-9973, bearing Engine No.275IDI06MXYSS1773, Chasis No.MAT445402CVPBB63 from the O.P. No.1 and O.P. No.1 received an amount of Rs.60,000/- as down payment at the time of purchase of the vehicle. The complainant had paid Rs.9840/- in the shape of first installment. O.P. No.1 assured him that the vehicle in question was not effected with any kind of manufacturing defect and gave the possession of the said vehicle to him after proper inspection. After receiving the documents of the vehicle in question, it had come to the notice of complainant that the said vehicle was manufactured in the month of March, 2012. When the complainant narrated/disclosed the said fact to the O.P. No.1 that they had sold him old model vehicle, then O.P. No.1 gave full assurance that he would not suffer any type of mechanical problem with the vehicle in future, which was sold by the O.P. No.1 to the complainant. After 2/3 months, the vehicle in question started giving many types of problems. He approached the O.P. No.1 and requested either to repair or to replace with new vehicle. Due to the improper functioning of the vehicle, it was giving many problems to the complainant and due to the defect in functioning complainant could not pay the installments to the financer, who on 02.05.2016, wrongly and illegally confiscated the vehicle in question. The complainant served the legal notice dated 14.11.2017 upon the O.Ps. Hence, this complaint.  
3. On notice, O.P. No.1 appeared through counsel and filed written reply taking preliminary objections; that the present complaint was not maintainable; that the complainant has not come to this forum with clean hands; that the complainant has concealed the material facts from this Hon'ble Court; that the complainant has filed the present complaint with ulterior motive and malafide intention to cause harassment and prejudice to the O.P. No.1; that the complainant is not a consumer; that O.P. No.1 is merely authorized dealer of Tata Motors Limited; that the complaint is time barred; On merits, it is started that the complainant has filed this baseless complaint alleging manufacturing problems in the vehicle without having produced any expert opinion/documentary proof in the form of evidence to prove that the vehicle in question suffers from the problems as alleged or to establish any manufacturing defect in the vehicle in question. The answering O.P. had sold the latest model of the vehicle to the complainant. Rest of allegations made in the complaint have been denied and prayer has been made for dismissal of the complaint.
4. On notice, the O.P. No.2 appeared through counsel and filed written reply taking preliminary objections; that the present complaint is not maintainable; that the complainant has concealed and suppressed the material facts from this Hon'ble Court; that the complainant has not approached this court with clean hands; that the complainant was too much negligent, which could be evident from the fact that the vehicle in question was always brought for accidental repairs; that this court has no territorial jurisdiction to entertain the present complaint; that the complaint is time barred. On merits, it is stated that the vehicle in question is a commercial vehicle and thus, the complainant cannot claim the status of a consumer under the Act. The complainant had purchased the vehicle in question from Una and brought the vehicle in question at the workshop of O.P. No.1 at Una. The relationship exists between the answering O.P. is on principal to principal basis. The complainant has failed to disclose which kind of problems had arisen in the vehicle after 2/3 months. Rest of allegations made in the complaint have been denied and prayer has been made for dismissal of the complaint.

5.     On being called upon to do so, the learned counsel for the complainant has tendered documents Ex.C1 to Ex.C22 and closed the evidence. The authorized representative of O.P. No.1 has tendered duly sworn affidavit of Sh. Dheeraj Sethi, General Manager, Libra Automobiles Limited Ex.OP1/A along with document authorization letter Ex.OP1/B and closed the evidence. The learned counsel for the OP No.2 has tendered duly sworn affidavit of Sh. Sharmendra Chaudhary, Manager Law, Tata Motors Limited, Ex.OP2/A and closed the evidence. 

6.     We have heard the learned counsel for the parties and have gone through the record of the file, carefully.

7.     Complainant counsel Sh. K.S. Rana, argued that in the month of March 2013, complainant had purchased a vehicle i.e. Tata Motor Ace Dicor from OP No.1, beside the loan facility O.P. No.1 received Rs.60,000/- cash. The vehicle was delivered and after about 2/3 months, the vehicle started giving many types of troubles. He approached O.P. No.1 and requested either to repair or to replace with new vehicle. He also argued that the complainant has placed on file various documents which proves the visiting/repair of the vehicle and last visit was in April/May 2014. Due to the improper functioning of the vehicle, it created many problems to the complainant and due to the defect in functioning, complainant could not pay the installments to the financer, who on 2.5.2016, confiscated the vehicle illegally. Then complainant gave legal notice dated 14.11.2017 to the O.P. No.1. He further argued that earlier also the complaint on the identical facts was filed but was withdrawn due to technical defect as the manufacturer was not impleaded as O.P. Qua this fact, the complainant counsel referred Ex.C22, lastly by referring the evidence prayed to allow the complaint with costs.

8.     Sh. Pargat Singh, counsel for O.P. No.1 argued that the complaint is not maintainable being time barred, secondly this forum has no jurisdiction because complainant had purchased the vehicle from Una District (HP) then argued that complainant is duty bound to prove deficiency on the part of O.Ps. If the manufacturing defect comes on file then relief can be granted in favour of the complainant against the O.Ps. When no deficiency is proved, expert opinion qua the vehicle deficiency is not on the file. The complaint deserves to be dismissed.

9.     Sh. Rajiv Kumar, counsel for O.P. No.2 argued that as per the reply and prayed that in the absence of the expert opinion, the complaint cannot be proceeded against the O.Ps.

10.   Complainant purchased vehicle in the month of March, 2013 and after the purchase approached the O.P. No.1  many times and placed on the file retail invoice Ex.C2 to Ex.C10, which proves he had been visiting the O.P. No.1 and this fact is not denied by the O.Ps. So, it is a consumer dispute, in the light of Ex.C22, this forum has the territorial jurisdiction and the complaint is maintainable.

11.   It is primarily the duty of the complainant to prove deficiency on the part of O.Ps. and then to prove whether the complaint is within limitation. Purchase date is 15.3.2013 from O.P. No.1 and there is no dispute qua the sale price of the vehicle. Ex.C2 to Ex.C10 proves complainant had been visiting with O.P. for service and the last visit is of 15.5.2014 vide Ex.C10. Earlier the complaint was filed in the beginning of 2018 and was withdrawn on 5.7.2018. Even if the filing of the complaint is considered for the purpose of cause of action then period between May 2014 to January/Feburary 2018 on calculation comes to four years. The complainant has remained silent continuously for a period of four years since his last visit to the O.P. No.1 was dated 15.5.2014, hence, the forum has come to the conclusion that hopelessly the complaint is time barred.

12.   Another fact which is to be appreciated is qua the manufacturing defect, whether the complainant has been able to prove manufacturing defect or not. Complainant referred Ex.C2 to Ex.C10 and that is last visit with O.P. No.1 was in May 2014. After that no report is on the file qua the improper functioning of the purchased vehicle. Moreso, the report has come that the vehicle had travelled thousands of Kms. and in the absence of the expert opinion no benefit can be extended in favour of the complainant against the manufacturer qua the mechanical/technical defect.

13.   As far as the plea of complainant counsel that earlier the complaint was withdrawn and the forum had granted liberty. Ex.C22 is the order of this forum dated 5.7.2018, which speaks that complaint was filed by Sanjeev Kumar without impleading the manufacturer and on this score the complaint was withdrawn with liberty to file a fresh impleading the manufacturer, who is now O.P. No.2. In the said order this forum had not given the verdict on the question of limitation or the genuineness of the complainant. So, no benefit can be extended in favour of the complainant relating to the limitation or qua the manufacturing defect.

14.   Complainant himself pleaded in para No.12 of the complaint that legal notice dated 14.11.2017 was issued to the O.Ps, but on 2.5.2016, the Tata finance motors forcibally and illegally took the possession of the said vehicle due to non payment of the installments. This part of admission of the complainant itself goes against the complainant that the vehicle since 2.5.2016 is not in his possession rather is with the financer. As on date there is no factual status report of the vehicle whether it exists in the name of complainant or sold by financer to some one else. In this way, the complainant remains unable in proving deficiency on the part of O.Ps.

15.   In the light of discussion made above, the complaint stands dismissed. The parties are left to bear their own costs. 

16.   The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.          

 

                      ANNOUNCED                                   (KARNAIL SINGH AHHI)

                      Dated.01.02.2019                              PRESIDENT
 

 

 

 

                                                (CAPT. YUVINDER SINGH MATTA)

                                                                      MEMBER