DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALWAL
Consumer Complaint No. 61 of 2014
Date of Institution: 22.05.2014
Date of Decision : 18.03.2015
Rajesh Kumar s/o Om Parkash, R/o Jawahar Nagar (Camp), Palwal, Tehsil & Distt. Palwal ( Haryana).
.. Complainant/Applicant
Versus
1. Mahindra& Mahindra Ltd. Regd. Office Gateway Building Apollo Bunder, Mumbai-400039 through its Registrar.
2. Sterling Motor Co. Civil Lines, Main Mathura Road, Palwal (Haryana) through its Proprietor.
..Respondents.
COMPLAINT UNDER SECTION 12 OF CONSUMER PROTECTION ACT
BEFORE: JAGBIR SINGH: PRESIDENT
KHUSHWINDER KAUR: MEMBER
R. S. DHARIWAL: MEMBER
PRESENT: Sh. O.P.Saini, Adv. for complainant.
Sh.Vikash Gupta,Adv. for opposite party no. 1.
Sh.H.K.Sharma, Adv. for opposite party no.2.
ORDER:
In brief the facts agitated in the complaint are as under:-
The complainant Rajesh Kumar s/o Sh. Om Parkash purchased vehicle MAXXIMO PLUS PICK-UP from opposite party no. 2 on his being lured, pressure and guarantee given by opposite party no. 2 and assurance that if the problem crops up in the vehicle bearing no. HR-73/5085 (PICK UP VAN) it will be rectified or the vehicle in question will be replaced with the other new vehicle but the complainant have not mentioned the date of purchase in the complaint or have not submitted on file the RC, invoice of the vehicle purchased, insurance policy, route
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permit or fitness certificate and other any relevant documents which shows that vehicle was in the name of the complainant or which can prove for what purpose it was being use. The complainant have levelled allegations that:-
From the wordgo the complainant was facing a lot of shortcomings/problems in the vehicle in question and all these problems were brought to the knowledge and notice of the opposite parties. The major problems which were brought to the notice of the opposite parties are as under:-
(i) Chassis damaged/broke.
(ii) Head defect ( three times fressed, but still in defective condition.
(iii) Eco Power fail (vehicle can run/drive upto maximum 40 KM speed.
(iv) Engine defect ( Two times tried to remove the defect by above authorized dealer/service station, but failed.
The complainant had informed the opposite parties telephonically many times to inspect the vehicle in question or sent some Engineer of the companies and competent representative who can remove the defects in the vehicle but all in vain. He has visited and requested the opposite parties to remove the defects immediately so that the complainant may not face any kind of loss or may be able to deposit the loan installments in time to the company from where he has got the vehicle in question financed under hypothecation agreement. Opposite parties turned a deaf ear to all the requests made to them and tried to linger on the matter on one pretext or the other as they intentionally wanted to get rid of the complainant and his problems and opposite party no.1 directed the complainant to be in touch with the authorized dealer(Opposite party no.2) about any short of complaint in the vehicle in question.
The complainant visited the opposite party no. 2 and told about all the problems which he is/was facing pertaining to vehicle in
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question day in and day out and also requested to get replace the vehicle in question with the new one without making any further excuse or delay. This request for new vehicle was made when all the efforts to remove the defects in the vehicle failed and opposite party no. 2 totally failed to get the defects removed and told that there is a manufacturing defect in the vehicle. The complainant got the vehicle in question repaired and the bills to this effect are attached and submitted on the file. The vehicle in question was got repaired on 25.3.2014,4.3.2014,4.3.2014,8.2.2014.6.9.2013,25.9.2013,1.7.2013 and 12.8.2013 for which the complainant was compelled to pay from his own pocket a sum of Rs. 4218/-,Rs.5097/-, Rs.10,000/-, Rs.14750/-, Rs.1438/-, Rs.168/- Rs.2896 and Rs.21,230/- respectively. In addition to it there is a allegation that complainant had suffered a huge loss due to the above vehicle in question and he could not earn any pie/paisa and remained disturbed. The complainant has also suffered mental agony, pain and pecuniary loss due to the gross negligence and deficiency in service on the part of the opposite parties. The opposite parties have failed to provide him the required services on time in spite of the vehicle being under warranty/guarantee period. That due to the negligence the complainant had been burdened to make deposit the installment of loan/financed vehicles loan from the respondent company i.e Mahindra & Mahindra. The opposite parties have full knowledge of the payment made to the opposite parties/authorized dealer/opposite party no.2. The complainant also served legal notice to the opposite parties dated 3.4.2014 but they did not even bother to reply the same not to talk of getting the problem/removing the defect in the vehicle in question. The complainant have no option left after issuing legal notice except to knock the door of this Forum and he has prayed to this Forum for replacing the vehicle in question bearing registration no. HR-73/5085 with the new one in place of defective vehicle without delay and in
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addition to it the complainant have asked for paying compensation to the tune of Rs.1,00,000/- for mental agony, pain and monetary loss suffered or is suffering at present due to gross negligence/deficiency in service and unfair trade practice on behalf of the opposite parties and further he has asked for returning/refunding the amount of service bills paid by the complainant to the opposite parties with interest and in addition to it he has prayed to this Forum for any other relief which this Hon’ble Forum deems fit and proper.
Upon registration of the complaint notices were issued to the opposite parties. Opposite parties appeared through their Ld. Counsels and filed their written statements.
Opposite party no. 1 has at the very outset in preliminary objections of the reply raised objections regarding maintainability of the complaint before this Forum, further he has taken the plea that complainant is not a consumer under the Consumer Protection Act and further opposite party no. 1 has taken objection that it is admitted in para no. 5 of the complaint, that the complainant could not earn any pie/paisa and prayed for dismissal on this solitary score only. Further in preliminary objections the opposite party no.1 have raised the objection that the transaction between the answering opposite party no.1 and opposite party no. 2 is on principal to principal basis and opposite party no. 2 is not the agent of opposite party no.1. Further that complainant is not the consumer of the opposite party no. 1 as he has not purchased the vehicle in question directly from opposite party no.1, present complaint has been filed with ulterior motive and malafide intentions. It is false, misleading, frivolous and devoid of any base. Further the objection of manufacturing defect in the vehicle is denied by the opposite party no. 1 and prayed for its dismissal and in preliminary objections he has also prayed for dismissal of the complaint for mis- joinder and non joinder of insurance company.
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In parawise reply the opposite party no. 1 have totally denied the allegations as have been levelled by the complainant except the contents that complainant purchased the vehicle on 8.3.2013 and further the opposite party no. 1 have admitted that Haryana Automobiles is the service provider since 1st service of the vehicle in question. It is further admitted in para no. 3 of the main para of reply that complainant brought the vehicle in question on 20.05.2013 with problem of wheel noise and the vehicle was got checked and defect was removed and the complainant took back the vehicle on the same day after full satisfaction. It is further admitted that complainant brought the vehicle in question for the 2nd time on 8.7.2013 for general check-up. It is further submitted that complainant brought the vehicle in question for the 3rd time on 17.8.2013 with problem of 3rd gear stoke, horn check and under body noise and the same was rectified to the full satisfaction of the complainant. It is further admitted by the opposite party no. 1 that complainant brought the vehicle for the 4th time on 4.9.2013 for general check-up and air filter check and the defects in question was removed to the satisfaction of the complainant. It is also admitted that complainant brought the vehicle for the 5th time on 1.2.2014 with problem of engine heat which was done to the satisfaction of the complainant and the vehicle was brought for the 6th time on 27.2.2014 with starting problem. It is also admitted that complainant brought and vehicle for the 7th time on 4.4.2014 with starting problem and the starting problem was removed. Each problem was sorted out and the vehicle was returned with full satisfaction of the complainant on the same day. It is further replied in main para no. 4 of the reply that whenever the complainant brought the vehicle at the service centre vehicle was duly attended by expert technician and defect was removed
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with full satisfaction of the complainant. In para no. 5 of the reply the opposite party no. 1 is admitted that vehicle is in good condition and complainant is not ready to pick his vehicle as he wants to replace it with new one. In his reply the opposite party no. 1 have also stated that vehicle is out of warranty right now despite of all this the opposite party no. 2 is ready to give 50% discount as a goodwill gesture. According to opposite party no. 1 the vehicle is functioning well and it is further submitted that all the problems were in operational nature and all problems were rectified with full satisfaction of the complainant and vehicle in question was delivered with full satisfaction of the complainant on each and every time except on the last occasion when the vehicle was brought to opposite party no.1. The photocopy of the job card and satisfaction note are annexed with Annexure R-1.( only mentioned not filed/placed on file). It is further replied by opposite party no. 1 that there is no mechanical inspection report have been placed on file to prove the allegations of manufacturing defect and in the end the opposite party no. 1 have prayed for dismissal of the false and frivolous complaint in question and prayed to this forum for saddling the complainant with a cost of Rs.10,000/- in view of the expenses incurred by opposite party no. 1 for contesting the present complaint.
Similarly, the Ld. Counsel for opposite party no. 2 have filed his reply and at the very outset in preliminary objections he has raised objections that present complaint of the complainant is not maintainable in the present form, complainant has got no locus standi to file the present complaint, he has got no cause of action and the complainant have filed the complaint just to harass and humiliate the opposite party no.2 and have not come with clean hands.
Further in parawise reply opposite party no. 2 have totally denied the allegations levelled against him regarding the vehicle in question. Further the opposite party no. 2 has denied that complainant
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has ever visited to the opposite party service centre 6 to 7 times for any kind of service though it is quite contrary to the reply filed by opposite party no. 1 in which he has admitted that the vehicle in question was brought to the opposite party no. 1 this time from the day of purchase for removing the defect in the vehicle. Further in para no. 5 of the reply filed by opposite party no. 2 it is denied that there was any defect in the vehicle in question and further due to any defect in the vehicle the complainant have suffered any loss as alleged or complainant has suffered any kind of mental agony, pain and pecuniary loss and in the end as there is no cause of action have accrued to file the present complaint and prayed to this Forum for dismissal of the complaint in hand.
To substantiate his case the complainant has placed on record his affidavit Ex.CW1/A to support his case in which the deponent has reasserted all the facts as mentioned in the complaint. In addition to it the complainant have also placed on record the documents Ex.C-1 to Ex.C-11. Ex.C-1 is legal notice to opposite parties, Ex.C-2 to Ex.C_9 are all payment receipts/bills paid by the complainant for repairing the vehicle in question to Haryana Automobiles from 1.7.2013 to 25.8.2014. Ex.C-10 and Ex.C-11 are postal receipts of legal notice in addition to it the complainant have failed to place on record any other documents regarding manufacturing defect as alleged or any inspection report of any competent inspector/Engineer or Supervisor of the company or any other private person. Further has failed to place any document regarding the registration of vehicle in question, invoice letter, fitness certificate, route permit and insurance policy. Rather the complainant have purchased one more vehicle of same make for commercial purpose from the same opposite party two months earlier and if the vehicle in question was defective one why he again purchased the same PICK-UP
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VAN /vehicle in question from the same company it shows the ignorance or negligence on the part of the complainant himself. The second PICK-UP VAN which has been purchased by the complainant regarding which the complaint in hand is pending shows that it is being used for commercial purpose as the complainant is the proprietor/partner of Ankit Enterises regarding which the case is also pending before this Forum and complaint bears complaint no. 60 of 2014 titled as Ankit Enterprise Vs Mahindra & Mahindra Ltd.
Similarly, to substantiate his case the opposite party no. 1 has placed on record the affidavit of Rajesh Bhaseen, authorized representative of Mahindra & Mahindra Ltd. which is Ex.RW1/A in which he has reasserted the facts as submitted in the reply filed by opposite party no.1.
Similarly, opposite party no. 2 has also placed on record the affidavit which is Ex.RW2/A in which C.P.Singh is the deponent who is HR Head of opposite party no. 2. In his affidavit the deponent has reasserted the facts which he has mentioned in the reply filed by opposite party no.2.
After considering the written arguments, hearing oral arguments of the Ld. Counsels and after evaluating the evidence adduced on file this Forum have come to the conclusion that the complainant has not placed on record his Registration Certificate of the vehicle in question which would have proved the ownership and hypothecation of the vehicle in question. Further the complainant is having a proprietor/partner firm in which the PICK-UP VAN are being used for commercial purposes as the vehicle in question was PICK-UP VAN meant for lodging of material and other goods. Even the complainant did not mention the date of purchase of vehicle in question, the date of purchase was admitted by opposite party no. 1 in para no. 3 of parawise reply filed by opposite party no.1. Further
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complainant have purchased the second PICK-UP VAN on 8.3.2013 bearing registration no. HR-73/5085 from opposite party no. 2 and other one bearing no. HR-73/4885 was purchased on 2.1.2013 by the complainant regarding which the case is pending before this Forum, the case titled as Ankit Enterprises Vs Mahindra & Mahindra. If the vehicle in question was troublesome or not functioning properly then why the complainant purchased the second PICK-UP VAN which have been purchased from the same opposite parties and which is of similar make and model. It is beyond any stretch of imagination that why a person will purchase the same PICK-UP VAN for the second time from the same opposite parties regarding which he is facing a lot of problem from the earlier purchase PICK-UP VAN.
It is also very strange that opposite party no. 1 has stated in his reply that complainant brought the vehicle in question 6 to 7 times to the service centre for removing the defects in the vehicle in question and opposite party no. 2 has totally denied that vehicle in question was ever brought for any kind of service or for removing the defect to the opposite party no. 2 or any other workshop. This is quite contrary to the reply filed by the opposite party no.1. Further opposite party no. 1 has mentioned in his reply in parawise reply of para no. 6 that he has placed/submitted/mentioned that Annexure R-1 the photocopy of job card and satisfaction note of complainant which have only been mentioned in the paragraph but to prove his stand he has not placed on record. Now the first and foremost question which are arising in our consideration is as to:-
(i) Whether the complainant is having a proprietor/partnership firm and for that firm’s business complainant purchased two months earlier i.e. 2.1.2013 a similar PICK-UP VAN bearing commercial registration no. HR-73/4885 from the same opposite parties which are there in the present complaint in hand?.
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(ii) If the answer to the above question is yes then question arises whether the complainant was not knowing before purchasing the second PICK-UP VAN bearing registration no. HR-73/5085 regarding the manufacturing defect or not functioning of the vehicle on road as he was using the similar vehicle in question for the last 3 months, and when the complainant had already levelled allegations regarding the vehicle in question in the earlier complaint bearing no. 60 of 2014 that the vehicle in question was defective from the date of purchase.
(iii) Whether the vehicle in question was being used for commercial purpose?
Now after analysis of the facts this Forum is of the view that complainant was having a proprietor/partnership firm, which he has admitted in complaint bearing no. 60 of 2014 pending before this Hon’ble Forum titled as Ankit Enterprises Vs Mahindra & Mahindra in which he has purchased the similar PICK-UP VAN bearing registration no. HR-73/4885 for commercial purpose on 2.1.2013 from the same opposite parties.
The complainant has already purchased the similar vehicle i.e PICK-UP VAN from the opposite parties before two months prior to the purchase present vehicle in question and he was supposed to fully aware regarding the functioning of the vehicle in question and it proves that he was satisfied with the earlier vehicle purchased from the same opposite parties and after that he decided to purchase the present vehicle in question.
It is crystal clear that as the complainant was doing the business in the name and style of M/s Ankit Enterprises and he was using the vehicle in question for commercial purpose. So by his own act and conduct, by not placing on record the relying upon the documents and withholding them i.e invoice, RC of the vehicle in question, route permit, fitness certificate etc. he has failed to prove the allegations
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levelled against opposite parties and he wants to suppress the material information from this Forum. If the documents would have been not withheld, the documents would have proved the commercial nature and purpose of the vehicle in question.
Resultantly, this Forum is of the view that the complaint of the complainant is dismissed as complainant is not a CONSUMER under section 2(i) (d) of Consumer Protection Act as he was using the vehicle in question bearing registration no. HR-73/5085 (PICK-UP VAN) for commercial purpose. Parties are left to bear their own costs. Copy of this order be given to the parties free of costs and file be consigned to the record room. This order of the Forum is running into 11 pages and each page of this order has been signed by this Forum.
Announced on:18.03.2015 (JAGBIR SINGH)
President
District Consumer Disputes Redressal Forum, Palwal.
(KHUSHWINDER KAUR)
Member
District Consumer Disputes Redressal Forum, Palwal.
(R. S. DHARIWAL)
Member
District Consumer Disputes Redressal Forum, Palwal.
