Haryana

Panchkula

CC/251/2019

JASPAL SINGH. - Complainant(s)

Versus

LUXMI SWITCHGEAR PVT.LTD. - Opp.Party(s)

PIYUSH MITTTAL

20 Nov 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	251 of 2019
Date of Institution	:	01.05.2019
Date of Decision	:	20.11.2023

 

 

Jaspal Singh age 30 years son of Sh.Amar Singh, resident of House No.904, VPO Barwala, District Panchkula.

    ..….Complainant

Versus                                                                  

1.     Luxmi Switchgears Pvt. Ltd. Plot No.82, Industrial Area, Phase 1,       Panchkula through its Managing Director.

2.     Mahindra & Mahindra Ltd. Automotive Sector Haridwar, Sector-5,       IIE, Sidcul, Haridwar through its Managing Director.

                                                                      ……Opposite Parties

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

                        Dr. Sushma Garg, Member.

                        Dr. Barhm Parkash Yadav, Member. 

 

 

For the Parties:   Sh.Saurabh Bahmani and Sh. Manish Kumar, Advocates for the complainant.

                        Sh. Jatin Sehrawat, Advocate for OP No.1.

                        OP No.2 already ex-parte vide order dated 19.06.2019.

                       

                       

ORDER

(Satpal, President)

1.Briefly stated, the facts, as alleged in the present complaint, are that the complainant had purchased a new vehicle, namely, Mahindra Bolero ZLX MCROHYDRID ACPSBSIB Type of vehicle-Hard Top, bearing Chassis no.G5B51957, Engine No.GRG4A79811, from the opposite party no.1(hereinafter referred to as OP No.1) vide invoice no.INV16001126 dated 07.03.2016 for a sum of Rs.7,87,310/- under  finance by Canara Bank. Thereafter, the said vehicle was again financed by Induslnd Bank. It is averred that after few days, it was noticed that the vehicle did not pick-up the speed beyond 80 km per hour and in this regard, the OP was contacted on 21.07.2016, who carried out the routine repairs and returned the vehicle to the complainant. The complainant again faced the same problem on 09.09.2016. In the month of March 2017, another defect in the vehicle, wherein speed was wrongly shown @160km per hour, came into the notice of the complainant. The defects were brought into the notice of the OP No.1 on 29.03.2017, who did the free service of the vehicle on the same day and repaired the defects qua the wrong display of the speed in the speedometer. It is averred that the complainant, being faced with the issue of low pick-up beyond 80km per hour contacted the OP No.1 on 10.11.2017, 20.02.2018, 23.02.2018, 27.02.2018, 27.03.2018, 27.04.2018, 01.05.2018, 08.05.2018, 11.07.2018 and 28.08.2018. The OP No.1 kept the vehicle and carried out the repairs on the said dates but the issue was not resolved permanently. It is stated that the repairs were carried out on temporary basis having no permanent resolution. It is stated that there are manufacturing defects in the vehicle, which the OPs have failed to rectify the same and due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.Upon notices, the OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable as no cause of action has accrued in favour of the complainant; the complainant is not covered under the definition of the consumer; the adjudication of the present complaint requires leading of voluminous evidence, which cannot be done in the summary jurisdiction. The OP No.1 is only a dealer of the manufacturer i.e. OP No.2 and their relationship between them is based on the basis of principle to principle and in the event of any manufacturing defect, the manufacturer i.e. OP No.2 is liable for any deficiency.

                It is submitted that the complainant had purchased the vehicle on 17.03.2016, which has already covered a distance of 54944km by 30.04.2019. The vehicle is running satisfactorily, having no problem in it and has covered more than 55000km and thus, the complaint is liable to be dismissed.

                On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint of the complainant is liable to be dismissed.

3.Notice was issued to the OP No.2 through registered post, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.2; hence, it was deemed to be served and thus, due to non appearance of OP No.2, it was proceeded ex-parte by this Commission vide its order dated 19.06.2019.

4.The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-7 and closed the evidence by making a separate statement. The ld. counsel for the OP No.1 has tendered affidavit Annexure R1/A along with documents Annexure R-1/1 and closed the evidence.

                During  arguments, brief summary of the vehicle history duly signed by the learned counsels for both the parties has been placed on record, which is taken as Mark ‘A’ on record.

5. We have heard the learned counsels for the complainant as well OP No.1 and gone through the entire record available on file including written arguments filed on behalf of the OP No.1, minutely and carefully.

6.During arguments, the learned counsel for the complainant reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) of the complainant and contended that the complainant, along with the vehicle in question, had visited the OP No.1 i.e. dealer on 29.03.2017, 20.02.2018, 27.03.2018, 27.04.2018, 08.05.2018, 11.07.2018 and 24.08.2018 seeking the rectification of the defects in the vehicle qua low pick up beyond 80km, accelerator and speedo meter but  the OP  No.1 has failed to rectify the same and thus, it is contended that the vehicle in question is having manufacturing defects in it; so, the complaint is liable to be accepted by grating the relief as claimed for in the complaint.

7.The learned counsel on behalf of the OP No.1 contested the complaint by raising the preliminary objections that complicated question of facts are involved in the adjudication of the present complaint, which cannot be decided in the summary procedure being adopted  under the Consumer Protection Act.

                The above objection is liable to be dismissed as the dispute between the parties qua the defects in the vehicle can be adjudicated on the basis of documentary evidence, which is placed on record in the shape of vehicle history etc. and thus, the objection is rejected.

                The next objection raised by the learned counsel is that the relationship between the manufacturer i.e. OP No.2 and its dealer i.e. OP No.1 is based on the principle to principle basis and thus, no liability qua any manufacturing defect in the vehicle can be fastened upon the dealer i.e. OP No.1.

                 This objection shall be disposed of in the light of discussion as made in the following para of this order.

8.On merits, the learned counsel has vehemently argued that the vehicle has already been utilized by the complainant for more than seven and half years (7½ years) by running it over a dispute of 54944km till 30.04.2019. It is argued that there is no problem in the vehicle and the same is roadworthy and is being utilized satisfactorily by the complainant and thus, the complaint is liable to be dismissed being frivolous, baseless and meritless.

9.The OP No.2 has preferred not to contest the present complaint by remaining absent despite services of notice and accordingly, it was proceeded ex-parte vide order dated 19.06.2019 and thus, the assertions made by the complainant go unrebutted and uncontroverted.

10.We have perused the vehicle history as placed on record by the complainant as well as OP no.1 in the shape of Annexure C-4 & C-4 (colly)) & Annexure R-1/1 & Mark ‘A’ and find that the complainant along with his vehicle had visited the OP No.1 on 20.02.2018 and 29.03.2017, 20.02.2018, 27.03.2018, 27.04.2018, 08.05.2018, 11.07.2018 and 24.08.2018 seeking the rectification of the defects in the vehicle qua low pick up beyond 80km, accelerator and speedo meter. The relevant details, as per vehicle history, are reproduced in the tabular form as under:-

Sr. No.	Date of visit	Kilometer covered by vehicle	Name of the mechanic	Defects as alleged by the complainant	Remarks
1	29.03.2017	19042	Sonu Kumar	Needle in speedo meter got struck at 160km	Nil
2	20.02.2018	34154	Dilshad	Accelerator pedal module	Accelerator wiring adjusted
3	27.03.2018	35811	Dilshad	Pickup low above 80km
4	27.04.2018	37710	Alok Kumar	(i) Pickup low above 80km (ii)  speedo meter showed speed 160km against the actual speed.
5	11.07.2018	39991	Dilshad	Pickup low above 80km and sometime missing while  accelerator used	Wiring  tie clamp done, startor motor repair by  vecder
6.	08.05.2018	38130	Jaipal Ram	Pickup low	Accelerator  to tekelrt wiring clamp done  road test doen 35 km found OK
7.	28.08.2018	41891	Yogesh Dhiman	Pickup low and accelerator pedal not working	Engine wiring check, tail light wiring repair.

11.As per vehicle history reproduced above, the complainant has visited the OP No.1 mainly qua the three issues i.e. issue of low pick-up above 80km, accelerator issue and the defect in the speedo meter.

12.With regard to the low pick-up beyond 80km, it is found that the complainant visited the OP No.1 on 27.03.2018, 27.04.2018, 11.07.2018, 08.05.2018 and 24.08.2018. The vehicle was inspected on the said dates by the mechanic, namely, Sh. Dilshad on 27.03.2018, Sh.Alok Kumar on 27.04.2018 and by Sh.Dilshad on 11.07.2018. On 08.05.2018, the vehicle was checked by the mechanic, namely, Jaipal Ram and on 24.08.2018, it was checked by Yogesh Dhiman and thus, the vehicle was inspected and checked by different mechanics on different dates qua the issue of low pick up beyond the speed of 80km but none of them find success in rectifying the basic defect. Although, one of the mechanic, namely, Sh.Jaipal Ram has remarked on 08.05.2018 that road test of the vehicle was conducted by running it over a distance 35km and it was found ‘OK’ but no documentary evidence in the shape of his affidavit is available on record. It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value. Even the OP No.1 has not placed on record the qualifications along with experience of the several mechanics, who had inspected the vehicle on several occasions, and thus, the OP No.1 has failed to resolve the issue of low pick-up of the vehicle beyond the speed of 80km.

13.Regarding the issue of the accelerator pedal, the complainant has got the vehicle checked on 20.02.2018, 23.02.2018, 27.02.2018 and 24.08.2018 but the defect could not be removed by the mechanic of the OP No.1. Even Sh.Dilshad mechanic vide his remarks on 23.02.2018 has recommended the replacement of the accelerator pedal, thus, the OP No.1 has failed to resolve the issue of accelerator pedal.

14.The last issue being faced by the complainant is qua the wrong display of the speed in the speedo meter. In this regard, we find that the said defect was reported on 29.03.2017 and thereafter on 27.04.2018. The mechanic of OP No.1 has failed to resolve this issue to the satisfaction of the complainant.

15.In view of the discussion made above, it is clear that the OP No.1 has failed to resolve the issue of low pick-up beyond 80km, accelerator pedal and speedo meter.

16.Resultantly, the OP No.1 i.e. dealer as well as OP No.2, who is manufacturer of the vehicle in question, have been found deficient, while rendering services to the complainant, for which, they are liable to compensate the complainant, jointly and severally, for the deficiencies on their part. The preliminary objection raised by the OP No.1 qua its relationship being based on the basis of principle to principle is disposed of accordingly.

17.Coming to the relief, it is found that the complainant has claimed the replacement of the vehicle with new one or in the alternative refund of the entire purchase price of the car i.e. Rs.7,87,310/- along with compensation of Rs.2,00,000/- and Rs. 22,000/- on account of mental agony and harassment and  litigation charges respectively. Since the vehicle admittedly has already been utilized by the complainant for the period more than seven and half months(7 ½ years) from the date of its purchase i.e. 07.03.2016 by covering a distance of 100000km, the replacement of the vehicle or the refund of its purchase price is not fair or justified. However, the complainant is entitled to the rectification of the above mentioned defects as faced by him.

18.As a sequel to above discussion, we partly allow the present complaint with the following directions:-

1. The OP No.1 & 2 are directed to remove the defects qua speedometer and accelerator pedal by replacement of the same with new one. The OPs No.1 & 2 are also directed to carry out the necessary repairs qua the issue faced by the complainant pertaining to the low pickup beyond the speed of 80km per hour. The Ops are also directed to ensure that the vehicle in question is capable of being utilized by the complainant in a hassle free manner.

 

2. The OPs No.1 & 2, after making compliance of the directions as mentioned in above para no.1, will get the vehicle in question inspected from Senior Mechanical Engineer Government Central Workshop (Haryana Chandigarh), Plot No.20-21, Industrial Area, Phase-II, Chandigarh, who will certify vide his separate report after making the necessary inspection that the directions issued above para no.1 have been complied with by OPs No.1 & 2. In case, the Senior Mechanical Engineer finds some omissions qua compliance of directions, he will send the inspection report showing the omissions to the complainant and OPs No.1 & 2.
3. To pay a sum of Rs.20,000/-to the complainant on account of mental agony and harassment.
4. To pay a sum of Rs.5,500/- as litigation charges.

 

19.The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 & 2. A copy of this order shall be forwarded to Senior Mechanical Engineer Haryana Government Central Workshop (Haryana, Chandigarh), Plot No.20-21, Industrial Area, Phase-II, Chandigarh for his information and necessary action. A copy of this order shall also be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 20.11.2023

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President

 

 

CC.251 of 2019

Present:             Sh.Saurabh Bahmani and Sh. Manish Kumar, Advocates for the complainant.

                        Sh. Jatin Sehrawat, Advocate for OP No.1.

                        OP No.2 already ex-parte vide order dated 19.06.2019.

                                       

                                         

 

                       Arguments heard. Now, to come upon 20.11.2023 for orders.

Dt.07.11.2023

 

 

 

        Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal

                       Member                            Member                         President

 

Present:             Sh.Saurabh Bahmani and Sh. Manish Kumar, Advocates for the complainant.

                        Sh. Jatin Sehrawat, Advocate for OP No.1.

                        OP No.2 already ex-parte vide order dated 19.06.2019.

                                         

 

                                Vide a separate order of even date, the present complaint is hereby partly allowed against OPs No.1 & 2 with costs.

                         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.20.11.2023

 

 

       Dr.Barhm Parkash Yadav       Dr.Sushma Garg             Satpal

                       Member                            Member                         President