Complaint No: 347 of 2017
Date of Institution: 05.07.2017
Date of order: 11.09.2023
Baljinder Singh Gill S/o Bachan Singh Gill R/o H.No.123, Ward No.18, Mohalla Onkar Nagar, Gurdaspur. .....Complainant.
VERSUS
- Mahindra & Mahindra Ltd., Truck & Bus Division, Marketing Division, 2nd Floor, Mahindra Towers, Worli Mumbai, through its Managing Director.
- Aujla Motors Parts, authorized service station of Mahindra & Mahindra Co. Pvt. Ltd., Bypass Chuggiti, Near J.C. Resort, Jalandhar, through its Area/Branch Manager.
.....Opposite Parties.
- Dhawan Motors, authorized service station of Mahindra & Mahindra Co. Pvt. Ltd., Village Kanwan, Amritsar G.T. Road, Pathankot, through its Area/ Branch Manager.
- M/s Raja Ram & Sons, authorized service station of Mahindra & Mahindra Co. Pvt. Ltd., VPO Beas Pind, Opposite IOC Petrol Pump, On NH1-A, Pathankot Road, Jalandhar – 144302, through its Manager.
.....Performa Opposite parties.
Complaint u/s 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.J.S.Babbar, Advocate.
For the Opposite Party No.1: Sh.Sachin Mahajan, Advocate.
For the Opposite Party No.2: Sh.U.R.Sharma, Advocate.
Opposite Parties No.3 and 4 exparte.
Quorum: Sh.Lalit Mohan Dogra President, Sh.Bhagwan Singh
Matharu, Member.
ORDER
Lalit Mohan Dogra, President
Baljinder Singh Gill, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against Mahindra & Mahindra Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is registered owner of open Truck HCV Mahindra Blazo 37 having Chassis No.MAIPHANHCG6E49178, Model 2016 as shown in the R.C. of the said vehicle. It is worth mentioning here that the said vehicle is financed with Mahindra & Mahindra Finance Services Ltd. and the laon amount is payable @ Rs.62,000/- per month installments. It is pleaded that the complainant is a truck Driver by profession and he has no other source of income except the vehicle in dispute and all the family members of complainant are dependent upon the sole income of said vehicle. It is alleged that unfortunately said vehicle of the complainant met with an accident on 18.06.2017 at Gurdaspur Bypass and after spot inspection by the surveyor on 19.06.2017 complainant took the vehicle for its repair at the authorized service station of the company at Dhawan Motors i.e. Performa OP No. 3 who flatly refused to repair the same and advised the complainant to get it repaired from Performa OP No. 4 i.e. Raja Ram & sons authorized service station of Mahindra & Mahindra at Jalandhar and accordingly complainant took his vehicle to the service station of OP No. 4 where the vehicle remained up to 10 days, but no repair work took place. It is pleaded that ultimately Op No. 4 has sent the vehicle in the service station of OP No. 2 having all the required spare parts required to be fitted in the vehicle of complainant. It is further alleged that since 30.06.2017 the vehicle/truck is lying, in the service station of OP No. 2, but no repair has been started by the OP till today which causes great harassment in convenience and frustration in the mind of complainant, because the company advertised through internet that if service is not completed within 48 hours, company will pay Rs.1000/- per day to the concerned party. It is further alleged that there is no reasonable and convincing reasons why the delay occasioned in the repairing of vehicle in dispute. It is pleaded that had the vehicle been got repaired within time by the OP’s, the complainant must have paid his installments to the financer, but under the given circumstances, now the installment of the vehicle would be made by the complainant from his pocket. It is pleaded that due to the non - repairing of the vehicle within time amounts to deficiency of service and unfair trade practice on the part of the OP’s No.1 and 2. It is further alleged that before filing the complaint repeated requests were made by the complainant to the OP No. 2 qua his grievances, but they refused to take any heed about the problem of complainant and complainant found that OP No. 2 intentionally and willfully playing delaying tactics in the repair of vehicle inspite of the fact that all the spare parts of vehicle are lying with him. It is pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience as such, there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties no.1 and 2 to repair the vehicle as early as possible and they further be directed to pay compensation to the tune of Rs.62,000/ - for per month each equivalent to the installment of vehicle till its repair and damages to the tune of Rs.10,000/- on account of mental pain, agony and harassment with interest @ 9% per annum till its realization, in the interest of justice.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that it would be relevant to point out the relationship between the Opposite Party No.1 and its dealer i.e. OP’s No.2 to 4. is on principal to principal basis and not on principal to agent basis. It is pleaded that opposite party no.1 is the manufacturer of the vehicle in question and opposite parties no.2 to 4 is its authorized dealer and dealer purchase the vehicles manufactured by the Opposite Party No. 1 in bulk quantities and in turn resell them to the ultimate customer. It is pleaded that in other words, all the transactions with dealers are on principal to principal basis and sale of the vehicle and its service is conducted by the dealer, and for this, even consideration amount is payable to dealer by the customer. It is pleaded that Opposite Party No. 1 is not aware of the ultimate customer of the dealers and as such there is no privity of contract between the Opposite Party No. 1 and the ultimate customer of the vehicle (in the present case, the Complainant) as far as the subject vehicle is concerned. It is pleaded that it would be further pertinent to mention that sale and service of the vehicle is entirely the prerogative of the dealer, manufacturer has no role in it and the liability of manufacturer is limited to the terms and conditions of the warranty policy and the opposite Party No. 1 is not responsible for any of the act, commission of any act by its dealers. It is pleaded that in view of the above said facts, the complainant is not the consumer of Opposite Party No. 1, that this Hon'ble Commission has no pecuniary jurisdiction to try and entertain the instant complaint. It is pleaded that in this case the value of property i.e. the vehicle purchased by the dealer is Rs.24,48,663.16/- (Company to dealer), actual cost of the vehicle sold by the dealer to customer may increase further, which is above 20 Lakhs, complainant has demanded compensation to the tune of Rs.62,000/- per month from date of accident till repair and Rs.10,000/- on account of mental pain and agony along with 9% interest. It is pleaded that calculating all this goes much beyond Rs.20 Lakhs and therefore, this Hon'ble Commission has no pecuniary jurisdiction to try and entertain this complaint. It is further pleaded that the opposite party no. 1 is only responsible for any manufacturing defect in the vehicle. It is pleaded that admittedly, the vehicle has met with an accident and there is no allegation of manufacturing defect in the complaint and the contents of the complaint reveal that complainant has alleged against the workmanship of dealership and which has nothing to do with the opposite party no. 1. It is pleaded that in the service of the vehicle, the role of opposite party no. 1 is limited to the supply of spare parts, which are ordered by the dealer as per their requirement. It is further pleaded that humble submission of the opposite party no.1, the allegation of deficiency in service and unfair trade practice cannot be leveled for the works, jobs which are not to be conducted by the opposite party no.1. It is pleaded that thus, the filing of complaint against the opposite party no.1 on the allegation of deficiency in service or unfair trade practice is unwarranted and misplaced and therefore, the complaint is liable to be dismissed qua the opposite party No.1.
On merits, the opposite party No. 1 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint is not maintainable in the present form against the OP No.2 and the complainant have got no locus-standi to file the present complaint against the OP No.2 and present complaint filed by the complainant only to harass the opposite party, that the complaint of the complainant is totally false and OP No.2 is illegally impleaded by the complainant in this complaint and complainant has no cause of action to file the complaint against the OP No.2 and complaint of the complainant is liable to be dismissed with special costs. It is pleaded that on 21.06.2017, the complainant brought his Truck Mahindra bearing Registration No.PB-06-AK-9792 for repair in the service Centre of the OP No.2 and OP No.2 asked the complainant whether the insurance of the Truck in question is cashless or not and OP No.2 also said to the complainant if insurance of the Truck in question is cashless, then the OP No.2 will repair the Truck in question without any expenditure as they will charge the same from the Insurance Company and Otherwise the complainant has to pay half of the amount to the OP No.2 before starting the repair work and remaining half amount will be charged after the completion of repair. It is further pleaded that the Insurance of the Truck in question was not cashless and OP No.2 said to the complainant to deposit the half amount of repair charges and also sign on the job card, but the complainant refused to pay the repair charges and nor he has signed on the Job card and told the OP No.2 that he will took his Truck from the service Centre of the OP No.2 and got it repair from Ludhiana Dealership. The complainant said to the OP No.2 that he will take his Truck on the next day from the service Centre of the OP.No.2, but the complainant has not taken the Truck in question from the service Centre of the OP No.2. It is further pleaded that ultimately on 25.07.2017, the complainant took his Truck from the service Centre of the complainant and gave in writing duly signed by the complainant along with ID Proof and also admitted in wilingless that he has no concern with the OP No.2. It is further pleaded that the complainant filed this false complaint only harassment to the OP.No.2 without any reasonable cause.
On merits, the opposite party No.2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Opposite party No.3 and 4 did not appear and despite the service of notice and was proceeded against exparte vide order date 21.08.2017.
6. Learned counsel for the complainant has filed other documents as Ex.C-1 to Ex.C-3 along with affidavit of Baljinder Singh Gill, (Complainant) as Ex.C-4.
7. Learned counsel for the opposite party No.1 has tendered into evidence affidavit of A Viswanath, (Vice President of Mahindra & Mahindra Ltd.) as Ex.OP-1/1 along with reply.
8. Learned counsel for the opposite party No.2 has tendered into evidence affidavit of Harnek Singh, (Manager of Opposite Party No.2) as Ex.OP-2/1 along with other document as Ex.OP-2/2.
9. Written arguments not filed by the parties.
10. Counsel for the complainant has argued that complainant is registered owner of the truck bearing No.PB-06AK-9792 and the said truck met with an accident on 18.06.2017 and after the accident spot survey was carried on 19.06.2017 and the vehicle was shifted to opposite party No.3 but the opposite party no.3 refused to repair the truck with excuse that insurance is not cashless. As such vehicle was shifted at the service centre of opposite party No.4. It is further argued that opposite party No.4 also failed to repair the truck for want spare parts on account of which complainant is suffering loss on daily basis which amounts to deficiency in service.
11. On the other hand counsel for the opposite party No.1 has argued that opposite party No.1 is manufacturer of the truck and opposite party No.1 deals with remaining opposite parties on principle to principle basis and as such since the vehicle accidental complaint is not maintainable against opposite party No.1.
12. Counsel for the opposite party No.2 has argued that since the insurance of the truck of the complainant was not insured as such complainant was requested to pay half of amount in respect of the repair before starting the repair work but since the complainant refused to pay the half charges of the repair and thereafter voluntarily without any pressure from the opposite parties took his truck on 25.07.2017 and also gave in writing that he is taking possession of the truck from opposite party No.4, copy of which Ex.OP-2/2.
13. We have heard the Ld. counsels for the parties and gone through the record. It is admitted fact that complainant is registered owner of the truck No.PB-06AK-9792. It is further admitted fact that the said truck met with an accident and was taken to opposite party No.4 for repair and thereafter it remained in the work shop for repair with opposite party No.2.
14. To prove his case complainant had placed on record copy of driving licence of Sh.Gurnam Singh Ex.C1, copy of R.C. Ex.C2, copy of invoice Ex.C3 but surprisingly complainant has not placed on record any policy of insurance and has also not impleaded the insurance company with whom the truck was insured at the time of accident. As such we do not find any deficiency in service on the part of the opposite parties. However, since the consumer law is welfare legislation as such the present complaint is disposed off with the following directions :-
i) Complainant shall lodge the claim with the insurance company with which the truck No PB-06AK-9792 is insured.
ii) Insurance company shall depute its surveyor to assess and settle the loss within 30 days after lodging the claim with insurance company by the complainant.
iii) Opposite party No.2 is directed to repair the truck as per terms and conditions of the policy of insurance. No order as to costs.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Sept, 11, 2023 Member
*YP*
