DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 29th day of July, 2019
C.D Case No. 27 of 2017
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Sri Ashok Kumar Mohani
S/o: Sri Daitari Mohani
At: Beka Alapur,
Po/Ps: Puruna Bazar,
Dist: Bhadrak
……………………. Complainant
(Versus)
1. MAHINDRA & MAHINDRA Ltd.
Gate Way Building, Apolo Bunder, Mumbai- 400039
2. M/S Basanti Motors Bhadrak
At/Po: Charampa,
Ps: Bhadrak,
Dist: Bhadrak
3. The Chairman,
MAHINDRA & MAHINDRA Finance Ltd.
Gate Way Building, Apolo Bunder, Mumbai- 400039
…………………………..Opp. Parties
Counsel For Complainant: In Person
Counsel For the OP No. 1: Sri S. Tripathy & Others, Adv
Counsel For the OP No. 2: Set Ex-parte
Counsel For the OP No. 3: Sri B. Tripathy, Adv
Date of hearing: 31.07.2018
Date of order: 29.07.2019
RAGHUNATH KAR, PRESIDENT
This dispute arises out of the complaint filed by the complainant alleging deficiency of service and unfair trade practice against the O.Ps.
The OP No. 3 is the finance provider and the OP No. 2 is the dealer and providing sales and service to the customer. There was an agreement executed between the complainant and the OP No. 3 and finally the complainant purchased a four wheeler from the OP No. 2 which is named and styled as MAHINDRA MAXIMO MINI VAN VX. The date of purchase of the vehicle is 26.05.2015. The OP No. 2 is the vendor of the vehicle, the OP No.1 is the manufacturer. The vehicle was duly registered in the office of the RTO, Bhadrak vide registration No- OD-22D-3388. After registration of the vehicle some mechanical defects were found such as the fuel meter has not properly functioned. This matter was reported to the OP No. 2 as he is the service provider. He assured the complainant to repair said defect on dt. 03.08.2015 but on the first servicing the OP No. 2, the service provider claimed, Rs 10,000/- towards the cost of the fuel meter. As the same was replaced the complainant was compelled to pay the said amount. On 15.08.2015 another machinery defect was found in the self which was out of order, the same matter was reported to the OP No. 2 on the next day. He advised the complainant the vehicle should be taken to his workshop and accordingly the self coil was bound. The OP No. 2 demanded the cost of the service which was the total cost of the self. Another defect was found in the radiator on 28.08.2015. The said matter was reported to the OP No. 2 on the same day the complainant claimed to replace the same because the warranty period was going on. After the replacement OP No. 2 demanded Rs 4,000/- otherwise he threatened to detain the vehicle. Subsequently the complainant was compelled to pay the amount Rs 4,000/- complainant claimed before the OP No. 2 to replace the defective engine and in place of the same a new one should be installed. The said vehicle was broken down while it was playing on the road. The said matter was informed to the OP No. 2 by the complainant but no relief was available in the warranty period.
The OP No. 1 & 2 assured to the complainant to provide free service but it is a matter of regret that the total cost of the reparation had to be paid by the complainant. The complainant reported to the matter to OP No. 1 who is the manufacturer of the vehicle on dt. 22.12.2016 along with the OP No. 2 also by registered post with AD. On receipt of the said register letter the O.Ps became silent and no action was taken. The complainant had sent representations with the O.Ps on 27.02.2017 by registered post with AD. The O.Ps became heedless and did not prefer to send any reply as well as they did not provide any relief to the complainant. The OP No. 2 & 3 alluring the customers by colorful advertisement and at the same time the OP No. 3 without any further reference ready to finance the vehicle with high amount of interest which is not only malafide but also unfair trade practice. However when the O.Ps remain silent after receiving of the written representation of the complainant it is not only deficiency is service but also committed wrong. As such the complainant compelled & circumscribe to file this case against the O.Ps claiming the illegal demand of the money given at the time of servicing. The cause of action for this case arose on dt. 27.02.2017 when the complainant sent last representation disclosing his grievances to the O.Ps by registered post with AD. The O.Ps received the same and remained silent.
Hence the complainant has sought for the following reliefs.
1. The O.Ps be directed to replace the engine of the vehicle & its defective parts bearing No. OD-22D-3388 immediately.
2. The O.Ps also be directed to refund the Rs 150000/- taken illegally towards the exchange of the spare parts.
3. The O.Ps be directed to pay a Rs 50,000/- (fifty thousand only) for their deficiency in service.
4. The O.Ps be further directed to pay compensation of Rs 100000/- (one lakh only) towards and the mental agony and caused to the complainant and Rs 100000/- (one lakh only) towards legal costs.
5. To what other relief as the Hon’ble Forum deems fit and proper.
The complainant relied upon the documents.
1. The some of the bills paid to OP No. 2 at the time of servicing.
2. The written representation given to the O.Ps by the complaint.
The OP No. 1 appeared in this Forum through his concerned advocate and submitted his written version as follows.
The OP No. 1 has objected that the present complaint is not maintainable and has no prima facie case he has also objected that the OP No. 1 has neither a necessary party nor a proper party to the complaint. The complaint is lacking cause of action. It is further submitted that the transactions and dealings between answering OP No. 2 are no principal basis and the OP No. 2 is not an agent of the OP No. 1 for any purpose. The vehicle manufactured by the OP No. 1 is purchased by OP No. 2 to release the same to its own customers. The OP No. 1 has denied the facts described in the forgoing paragraphs of the complaint. It is also denied by the OP No. 1 regarding details of the vehicle, sale & purchased and transaction between complainant and OP No. 2, therefore the allegation against OP No. 1 have no meaning at all and denied the same. With statement to Para 6, is that the allegation against OP No. 2 regarding cost of Rs 4,000/- imposed for replacement of radiator within warranty period is false, but the fact is that the complainant has produced his vehicle before OP No. 2 and found that the radiator was leaking due to negligence of driving of the driver which is not covered under the warranty policy for which the OP No. 2 has taken the cost of radiator. It is construed that the radiator was damaged due to external factors such as accident/minor bump. Therefore the case in not maintainable against the answering OP. The averments are specifically denied and complaint is not maintainable.
That, with statement to Para 7 & 8 the answering OP No. 1 submits that the answering OP have no idea about assurance of OP No. 2 but the allegation against answering OP No. 1 regarding unfair trade practice and deficiency of service and reported over telephone is false and is not maintainable. The OP No. 3 is the finance company but not the manufacturer. The letter to OP No. 3 is beyond the knowledge of answering OP and no way liable for the same. The averments made in the Para 9, 10 & 11 are flatly denied by the OP No. 1 rather the OP No. 1 has stated that he has caused no deficiency of service and adopted unfair trade practice towards the complainant so also he has prayed for the dismissal of this complaint. The OP No. 2 has been set ex-parte because he neither appeared nor filed any written version in this Forum.
The OP No. 3 has filed his written version such as he is a finance company and is a completely separate legal entity and is no way connected with the other O.Ps. He has also stated that this OP No. 3 cannot be made liable for manufacturing or technical defects of the vehicle or not providing proper repairing the vehicle. After verifying the credibility of the complainant, this OP No. 3 sanctioned and disbursed the loan amount to the complainant. The complainant is not a consumer according to the definition as provided under sanction 2 (1) (d) of the CP Act, 1986. The complainant in his complaint petition has categorically stated that he had purchased a Mahindar Maxximo Mini Van VX BS3 vehicle by obtaining loan from the present O.Ps which he was using for commercial purpose. It is not the case of the complainant that he was using the said vehicle to earn his livelihood. In absence of specific pleadings in the complaint with regard to the use of the vehicle for earning livelihood adverse inference has to be drawn against the complainant. That, exercise of rights under the Loan-cum-Hypothecation Agreement cannot be construed as unfair trade practices. The agreement valued of Rs 5,27,640/- was to be repaid by the complainant in 47 periodical installments each starting from 31st May, 2015 and ending on 25th March, 2019. The said installments were to be paid within the 25th day of every month. As per the loan agreement the borrower/complainant agreed that so long as the loan remains, the borrower/complainant shall repay the loan amount along with interest in periodical installments on the fixed due dates as specified in schedule of the loan agreement. Failure to make the payment of the periodical installments in time shall amount to event of default. At last the OP No. 3 has admitted that he had seized the hypothecated vehicle for failure of the complainant in payment of EMI’s regularly. The OP No. 3 has denied the entire story of complaint.
Hence the OP No. 3 has sought for the following reliefs.
This complaint is liable to be dismissed in limine for filing of frivolous and vexatious complaint.
The documents of OP No. 3 have relied upon (Xerox copy).
1. Statement of accounts- 2 sheets- Annexure- A/3.
2. Loan agreement- 3 sheets.
3. Statement of account (customer menu)- 3 sheets- Annexure- B/3.
4. Power of attorney-4 sheets- Annexure- A.
5. Receipt (State Transfer Department, Govt. of Odisha)- 1 sheet.
6. Statement of account report- 3711229 (Customer menu)- 2 sheets.
7. Adhar card vide No- 2709 6981 5791- 1 sheet.
OBSERVATION
We have already perused the complaint and written versions filed by the complainant and the O.Ps as well as the documents filed by the complainant and the O.Ps. The complainant and the OP No. 3 both had entered into an agreement that the OP No. 3 was agreed to finance the loan amount for the said vehicle which could enable the complainant to purchase a MAHINDRA MAXIMO MINI Van VX. The complainant purchased the vehicle on 26.05.2015 from the OP No. 2 where the OP No. 1 is the manufacturer and the OP No. 3 is the financer. After being purchased the vehicle it has been duly registered in the office of the RTO Bhadrak vide Regd. No- OD-22D-3388. After purchasing the said vehicle one manufacturing defect was found in the said vehicle that the fuel meter was not properly functioning and the same matter was already been reported to OP No. 2. He assured to the complainant that, it was a very silly trouble and he advised and also assured that it will be repaired after the first servicing which was held to be on 03.08.2015. But it was unfortunate to state here that on the date of first servicing the OP No. 2 demanded Rs 10,000/- towards the cost of the fuel meter and as it was replaced the complainant was compelled to pay the said amount. Further on 15.08.2015 the self was found to be out of order and the same matter was reported to the OP No. 2. He advised to the complainant that to take the vehicle his own workshop and accordingly the self coil was bound. The OP No. 2 again demanded the cost. The complainant was bound to pay him. The said vehicle was found to be defected on 28.08.2015 again. On that day the radiator of the said vehicle had become defective. The complainant claimed to replace the same because the guaranty period was going on. But the OP No. 2 replaced the same and claimed Rs 4,000/- otherwise the vehicle would be detained. In spite of several mechanical defects were found in the said vehicle, the complainant in spite of sending many request letters to change the defective engine and installed the same in the vehicle the O.Ps were not turned up and failed to provide any relief to the complainant. The complainant made the said vehicle servicing by the OP No. 2 on the following dates such as first servicing on dt. 03.08.2015, second servicing on dt. 25.08.2015 and third servicing on dt. 10.10.2015. But it was regretful matter that the OP No. 2 imposed all the service costs of the aforesaid servicing upon the complainant. In the consequence the complainant was compelled to pay this said servicing cost to the OP No. 2. This matter was reported to the OP No. 1 by the complainant again and again but the OP No. 1 paid no heed towards the earnest request of the complainant. After that this matter was also reported to OP No. 2 on 22.12.2016 but the OP No. 2 also paid no heed to grievance of the complainant. The aforesaid OP No. 1 & 2 sat silently after receiving the complaint from the complainant against the OP No. 2. The complainant also sent further representations to the OPs on 27.02.2017 by registered post with AD. Although the OP No. 1 & 3 received the representation, remained silent and did not take any action. The cause of action of this case arose on 27.02.2017 when the complainant sent the last representation disclosing his grievances to the O.Ps by registered post with AD and the O.Ps have also received the same. The OP No. 3 has contradicted the complaint of the complainant that the complaint is not maintainable because the complainant is not coming under U/s 2(1)(d) of the CP Act because the said vehicle has been engaged for the commercial purpose to earn money so the complainant is not a consumer in the eyes of law. The Hon’ble Apex Court has held in the case LAXMI ENGINEERING WORKS Versus P.S.G. INDUSTRIAL INSTITUTE, AIR 1998 SC 1428 ahs clearly held that if any person obtains any goods for commercial purpose with a view to use such goods exclusively for earning profits such person has to be excluded from the purview of the CP Act, 1986. Further it is held that the OP No. 3 has dragged the vehicle to the goonds and hooligans. Before dragging the vehicle the OP No. 3 should have noticed the complainant for repossession and he should have lodged FIR in the local police station. It is certain that the OP No. 3 has committed illegalities and unfair trade practice as he has repossessed the vehicle illegal and unlawful method. Another draw backs is OP No. 2 is that he has been set ex-parte in this case. He neither appeared in the Court in time nor filed any written version but repossessed the vehicle forcibly with the hooligans. His non appearance and silence by non filing the written version replied that he has suppressed the truth and committed crime as well as caused deficiency in service and unfair trade practice. The OP No. 1 submits that after receiving the letter on dt. 27.02.2017 immediately the communicated to the dealer so also make contact with the complainant over telephone to produce the vehicle in question before OP No. 1 if any as a gesture of goodwill. The OP No. 2 after receiving the letter and instructions from the OP No. 1 immediately wrote a letter to the complainant to produce the vehicle before their workshop to remove the defect if any. The complainant without producing the vehicle before the workshop of OP No. 2 filed this case ulterior motive to harass the O.Ps. The complainant filed the complaint after expiry of warranty period. It is the another allegation made by the complainant against the OP No. 2 is that he demanded Rs 10,000/- from the complainant at that time of first servicing was done on 03.08.2015 again on 28.08.2015 the radiator of the said vehicle became defective within a short period of purchase. The complainant claimed to replace the same as the warranty period going on but it is a matter of regard that the OP No. 2 demanded the cost Rs 4,000/- otherwise the vehicle would be detained.
The OP No. 3 has challenged that U/s 2(1)(d) of the CP Act that the complainant is not counted within the ambit of the CP Act because he is not a consumer at all but Section- 2 (d)(1) of the Act says that consumer means any person who “buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any use of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose”. After observing the aforesaid contention of the Act we have held that the complainant is a consumer and he has been victimized under the deficiency of service of the O.Ps. So he has strong primafacie case against the O.Ps to initiate this case he has well established his case against the O.Ps also. The O.Ps have certainly caused deficiency of service against the complainant. It is further held that The OP No. 2 have been set ex-parte on 30.11.2017. The petition filed by the OP No. 2 to set aside the ex-parte order has become void because he has not filed the petition on service of copy of the petition upon the complainant. The said petition filed by the OP No. 2 has neither yet been heard nor order have been passed to set aside the ex-parte order. So the written version filed by the OP No. 2 has not been accepted yet. From the very beginning of the purchase of the vehicle manufacturing defects were found in the said vehicle. Although the warranty period was going on 03.08.2015 the OP No. 2 asked for Rs 10,000/- towards the cost of the fuel meter after first servicing was over. It is a serious deficiency of service. Had the written version of the OP No. 2 been accepted some real facts could have been come to the subject matter of this case which has been suppressed by the OP No. 2. According to the complaint the complainant put forth his grievance before all the O.Ps but those have been avoided by all the O.Ps. During the pendency of the case according to the order passed by this Forum the complainant paid Rs 3,000/- to the OP No. 3 on 24.07.2018. In spite of that the OP No. 3 has failed to hand over the vehicle to the complainant in running condition. As per the above discussion we have found that all the O.Ps have caused serious deficiency of service and dishonest trade practice towards the complainant. Concluding the observation we have held that all the O.Ps are liable for the deficiency of service. Hence it is ordered;
- ORDER
The complaint be and the same is allowed against OP No. 1 & 3 on contest, and OP No. 2 on ex-parte. The OP No. 2 & 3 here by directed to refund Rs 1,50,000/- to the complainant which they have illegally received towards the exchange of the spare parts. All the O.Ps are here by directed to replace the engine of the vehicle bearing the No. OD-22D-3388. They are also here by directed to pay Rs 5,000/- towards the mental agony and harassment as well as Rs 5,000/- towards the cost of the litigation to the complainant. Failing which additional compensation Rs 25/- per day shall be annexed with the compensation. This order shall be carried out by the O.Ps within 30 days on receipt of the copy of this order.
This order is pronounced in the open Forum on this day of 29th July, 2019 under my hand and seal of the Forum.
