ORDER

(Per: Mr. D.K. Tyagi, Member):

This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the appellant-complainant against the order dated 25.05.2009 passed by the District Forum, Dehradun in consumer complaint No. 152 of 2005, whereby the District Forum has dismissed the consumer complaint.

2.       Briefly stated the facts of the consumer complaint are that the complainant had purchased a vehicle named Mahindra & Mahindra Cab King 576 D.I. from the opposite party No. 1-Mahindra & Mahindra Premier Motors, Dehradun for a sum of Rs. 4,58,728/- and the same was financed by the opposite party No. 2-Mahindra & Mahindra Finance Limited, Dehradun on 28.04.2003 for which an installment of Rs. 11,133/- per month was fixed for a period of three years.  The complainant paid Rs. 1,65,000/- as cash and balanced amount was financed by the opposite party No. 2. The said vehicle was registered by the R.T.O., Dehradun on 20.06.2003 and the complainant received registration number UA07-E-7299 and route permit No. 1773. After purchasing the vehicle and completing the documents, the complainant went to famous Dhams of Uttaranchal, but from the date of purchase the said vehicle suffered from technical defects and for this reason the said vehicle did not ply in hilly roads properly.  Later on the complainant after obtaining permit for Char Dham dated 13.05.2004, this vehicle was sent from Rishikesh for two Dhams Badrinath and Kedarnath, the aforesaid vehicle stopped 03 kms. before Rudraprayag due to defect in engine. The complainant shifted passengers from this vehicle into other vehicle.  The complainant on 16.05.2004 brought this vehicle at the workshop of opposite party No. 1. It was already 5:00 p.m. in the evening and the office of opposite party No. 1 was closed, therefore, dated 17.05.2004 was mentioned for repairs of this vehicle.  This vehicle remained with the opposite party No. 1 from 17.05.2004 to 31.05.2004 due to none availability of parts.  Later on the complainant received this vehicle on 01.06.2004 and a new bumper was fixed, as the bumper was not available with the opposite party No. 1.  At the time of delivery, the opposite party No. 1 assured the complainant that now the vehicle is completely fit and no problem will occur in future and there is no technical defect in the vehicle. On 02.06.2004, the complainant obtained permit further of two months for journey of Char Dham yatra.  On 03.06.2004, this vehicle was sent from Rishikesh to Haridwar to pick up the passengers and on 04.06.2004 in the morning this vehicle started for Char Dham yatra from Haridwar/Rishikesh.  On 06.06.2004, again this vehicle started missing and stopped on the way, for which the driver of the vehicle informed the opposite party No. 1, but the employees of the opposite party No. 1 did not hear the version of driver.  The complainant requested the employees of the opposite party No. 1 that the vehicle is standing on the way to Char Dham yatra and also requested to check the vehicle there, but all went in vain. The driver of the vehicle, however, brought the vehicle to Srinagar with difficulty and the passengers were shifted in other bus with own expenses.  With difficulty this vehicle was shifted from hilly area to the workshop of opposite party No. 1, where this vehicle remained parked from 08.06.2004 to 18.06.2004.  The employees of the company again rectified the pump of the engine and also assured that there is three years’ warranty of engine, therefore, there is no need to worry and also assured that in case there occur any technical or manufacturing defect, then the company will rectify the defects of the engine.  The complainant received the vehicle from the opposite party No. 1. Since 18.06.2004 this vehicle is again in the custody of the opposite party Nos. 1 & 2.  The engine of the vehicle has not been working properly in the hilly areas due to manufacturing defect, which was rectified temporarily by the employees of the opposite party No. 1.  The complainant is debarred from profits due to non-working of engine in the Char Dham Yatra Season, resulting inability to pay installments to the finance company.  He is unable to pay the installments as well as interest on the loan taken from the opposite party.  The complainant enquired about the vehicle on 27.12.2004, but no reply was given by the opposite parties and the vehicle in question is still standing in the workshop of the opposite party Nos. 1 and 2 and, therefore, the complainant could not deposit the taxes etc. in the office of RTO, Dehradun.  The opposite party No. 1 did not rectify the complaint of the complainant permanently.  The vehicle in question has been standing in the workshop of opposite parties since 18.06.2004 and they did not rectify the same and did not give any information to the complainant, due to which the complainant suffered a huge loss, as the vehicle has not been plying in Char Dham Yatra.  The opposite parties are responsible for better service. The vehicle in question is under warranty. Due to non-payment of installments and non-deposition of taxes in the office of RTO, Dehradun and non-plying of the vehicle, the complainant suffered a huge loss and also suffered mental agony. The complainant demanded  Rs. 5.00 lacs against the loss due to manufacturing defect in the vehicle.

3.       The opposite Party No. 1- Mahindra & Mahindra Premier Motors has filed its written statement and has pleaded that it is admitted that the vehicle in question was sold by the answering opposite party on 28.04.2003.  The answering opposite party is not concerned, from where the payment of the price of the vehicle in question was made.  The answering opposite party is neither aware nor responsible for changes made by the applicant at the time of carrying out of the alleged works against the specifications of the manufacturer. The allegation that the vehicle in question developed technical flaws on being plied are vague.  Until and unless the particulars are furnished, the answering opposite party cannot give any specific reply thereof.  It is pertinent to mention here that the carrying out of alleged works by an unauthorized person in an unauthorized workshop leads to the cessation of the warranty.  It is wrong to allege that the vehicle in question was technically not sound.  It is wrong to allege that in view of any alleged defect, the vehicle in question was not able to ply smoothly on the hill routes. It is pertinent to mention that the vehicle in question was brought to the workshop of the answering opposite party with the complaint of over-heating at which necessary rectification was done.  Again the vehicle was brought to the workshop of the answering opposite party on 02.08.2004 with the same complaint of over-heating.  Necessary rectification was again done.  The vehicle was brought third time for repair on 20.10.2004 with the same complaint at which the engine of the vehicle was changed.  During this period the vehicle in question had done several thousand kilometers of running.  It was excessively used.  After the change of the engine, the applicant was satisfied and never returned with any complaint.  The vehicle was received in the workshop of the answering opposite party on 17.05.2004.  The vehicle was not kept idle in the workshop by the answering opposite party.  The vehicle had been delivered back to the applicant on 01.06.2005 after carrying out necessary rectifications to the best of the ability of the answering opposite party.  It is wrong to allege that there was any occasion or reason to give any alleged assurance with regard to the plying of the vehicle throughout the country without any problem.  No such assurance can be given in respect to a machinery which can develop snag at any time. It is wrong to allege that the vehicle started missing or the engine turned off on 06.06.2004 are denied for want of knowledge.  It is wrong to allege that any intimation as alleged was given to the answering opposite party.  The allegations that the employees of the answering opposite party did not pay any heed to the alleged intimation are wrong.  It is wrong to allege that the answering opposite party was ever requested to visit as alleged for checking the vehicle.  In fact the answering opposite party is under no obligation to make such visits.  Whenever the vehicle was brought to the workshop of the answering opposite party the complaint was attended with all promptness and necessary and requisite works were carried out.  It is wrong to allege that any assurance regarding repairing of engine in view of warranty was given.  There was no occasion or reason for the same as the warranty is governed by the terms and conditions thereof.  It may again be mentioned that the vehicle had been covering excessive mileage without proper maintenance and without caring for the requisite inputs at the appropriate time. It is wrong to allege that ever since 18.06.2004 the vehicle is in possession of the answering opposite party.  It is wrong to allege that both the opposite parties are one and the same company.  As mentioned above, the vehicle after 18.06.2004 had been in possession of the applicant as it was again brought for repairs on 02.08.2004 with the complaint of over-heating and thereafter on 20.10.2004, when its engine was changed. The answering opposite party has got no concern or connection with the opposite party No. 2.  In view of the manufacturing defect in the engine, the engine was changed.  It is wrong to allege that the defect in the engine could not be rectified by the employees of the answering opposite party.  Whenever the engine starts missing, the vehicle starts taking slight jerks and thereafter halts.  It is gradual process and any trained driver can realized the missing at a very early stage.  The allegations regarding the applicant not being to pay the installments to the financer have got no concern or connection with the answering opposite party.  It is wrong to allege that any letter dated 27.12.2004 had been served upon the answering opposite party.  There was no occasion or reason to give any reply as alleged. It is wrong to allege that the vehicle is standing in the workshop of the answering opposite party. The vehicle was taken delivery of by the applicant on 25.12.2004 after the change of its engine.  Thereafter and till date the answering opposite party has no knowledge as to where the said vehicle is.  It is worth noting that up to 02.08.2004, i.e. in between the period 28.04.2003 to 02.08.2004 the vehicle had plied 44000 kms.  The said mileage itself belies the entire contention of the applicant, as made in the complaint. The answering opposite party repaired the said vehicle as and when necessary from time to time and when it was realized that the engine suffers from manufacturing defects, the same was changed without charging for the same. The answering opposite party has provided the best of service.  The warranty has also been fully availed by the applicant.  The complaint is not legally maintainable, as the complainant is not a consumer within the meaning of Consumer Protection Act.  The applicant plies the vehicle on commercial basis through hired drivers.  He is a transporter carrying on business on commercial basis. 

4.       The opposite party No. 2-M/s Mahindra & Mahindra Financial Services Ltd. has filed written statement and has admitted that the vehicle in question was financed by the answering opposite party.  Rest of the facts are denied.  The answering opposite party has denied that the vehicle in question is in custody of answering opposite party.  The answering opposite party is a different company from the opposite party No. 1.  There is no question of vehicle in question in custody of answering opposite party because there is no workshop of answering opposite party and there is no similarity with the opposite party No. 1. The answering opposite party is only a finance company, who provides finance only. The answering opposite party is entitled to get loan amount alongwith interest from the complainant.

5.       The District Forum, on an appreciation of the material on record, has dismissed the consumer complaint vide order dated 25.05.2009 in the above manner.  Aggrieved by the said order, the complainant-appellant has filed this appeal.

6.       We have heard Sh. Pankaj Raturi, learned counsel for the appellant and Sh. Shivendra Singh Negi, learned counsel for respondent No. 1 and have gone through the entire record of the District Forum and perused the material placed on record.  None appeared on behalf of respondent No. 2.

7.       Learned counsel for the appellant has submitted that the Fora below has erred in coming to a conclusion that the vehicle in question was purchased for commercial purpose.  The appellant is not a transporter and does not have any other vehicle. The appellant had taken the vehicle in question for self-employment only.  The entire purpose to purchase the vehicle was that he could earn his livelihood by use of it.  The appellant has categorically come forward with a complaint that the vehicle was forcibly taken away from the appellant. The conclusion drawn by the lower Forum that the matter relates to accounting and hence is beyond the scope of consumer forum is wrong conclusion. The specific case of the appellant is that there exist deficiency in service on the part of the respondents not having provided adequate service.  The vehicle in question sold being defective, it was not attended and repaired properly and the alleged vehicle is in the possession of the respondents.  This relevant aspect was completely ignored by the Forum below.  Learned counsel has argued that the respondents could not have taken possession of the vehicle surreptitiously when it was given to them for repair and it was incumbent on them to have informed the appellant of its whereabouts.  The respondents in collusion with each other have it seems illegally sold of the vehicle in question without prior notice to the appellant and this itself is deficiency in service and which has completely been overlooked by the Forum below.  Duty lay on the part of the respondents to have given details of the money having been received by it and given adequate reply to the queries raised by the District Forum vide order dated 17.02.2009. 

8.       Learned counsel for respondent No. 1 has submitted that both the respondents are not same.  The vehicle in question is not in the custody of respondent No. 1.  The vehicle is with the appellant.  There is no evidence of the appellant on record that the vehicle in question is with the respondents.

9.       There is no dispute with the fact that the appellant had purchased a vehicle Mahindra & Mahindra Cab King 576 D.I. from respondent No. 1-Mahindra & Mahindra Premier Motors, Dehradun for a sum of                  Rs. 4,58,728/- and the same was financed by respondent No. 2-Mahindra & Mahindra Finance Limited, Dehradun, for which an installment of              Rs. 11,133/- per month was fixed for a period of three years.  The only dispute is that whether the vehicle in question had any manufacturing defect and whether the vehicle is in possession of the appellant or in possession of respondents.  The respondent No. 1-Dealer of Mahindra & Mahindra Ltd. has filed an affidavit of Sh. Harish Suri, CMD, M/s Dehradun Premier Motors Pvt. Ltd. and has categorically stated in para No. 6 of the affidavit that vehicle in question was brought to the workshop on 02.08.2004 with a complaint of over-heating and necessary rectification was done.  This vehicle was brought third time for repair on 20.10.2004 with the same complaint at which the engine of the vehicle was changed and the applicant was satisfied and never returned with any complaint.  In para No. 11 of the said affidavit, the deponent has stated that the answering opposite party has got no concern or connection with the opposite party No. 2. In para No. 13 of the affidavit, the deponent has specifically mentioned that the vehicle was taken delivery of by the applicant on 25.12.2004 after the change of its engine.  The document (paper No. 4kha/16 on the District Forum’s record) also reveals that this is issued by Dehradun Premier Motors Pvt. Ltd., which indicates that the vehicle in question was off road since 20.10.2004 to 27.12.2004 due to engine problem and new engine already replaced.  This contents of the affidavit filed by respondent No. 1 has not been controverted by the appellant in any manner. So far manufacturing defect in the vehicle in question is concern, the respondent No. 1 has specifically stated in the written statement as well as in the affidavit of Sh. Harish Suri, CMD, M/s Dehradun Premier Motors Pvt. Ltd. that the respondent No. 1 has already changed a new engine on 20.10.2004 and the vehicle was taken delivery of by the appellant on 25.12.2004 after a change of engine. Therefore, after change of new engine in the vehicle, there is no question of manufacturing defect at all.  The respondent No. 1 has changed a new engine in the vehicle being within the warranty period, therefore, it cannot be said that there is any deficiency on the part of respondent No. 1.  So far respondent No. 2-Mahindra & Mahindra Finance Ltd. is concerned, the appellant, in his consumer complaint, has mentioned in para No. 7 that the driver of the vehicle brought the vehicle at the workshop of respondent No. 2 and the vehicle remained parked at the workshop of the respondent No. 2 from 08.06.2004 to 18.06.2004.  The appellant again in para No. 8 of the consumer complaint has mentioned that after repair of the vehicle he brought the vehicle to his place on 18.06.2004, but again he mentioned that since 18.06.2004 the vehicle in question is in custody of respondent Nos. 1 & 2, because both the respondents are of same company.  The respondent No. 2, in its written statement, has categorically denied that the vehicle in question is in custody of respondent No. 2 and also mentioned that the respondent   No. 2 is a different company from the opposite party   No. 1.  In the written statement, the respondent No. 2 has also mentioned that there is no question of vehicle in question in custody of respondent No. 2 because there is no workshop of respondent No. 2 and there is no similarity or relation with the respondent No. 1.  The respondent No. 2 is only a finance company, who provides finance only.  In consumer complaint, the appellant-complainant has not alleged that the vehicle in question has been forcibly taken by the respondent No. 2 from the custody of the appellant or it was forcibly taken from the custody of respondent No. 1 by respondent No. 2. The relief claimed in the consumer complaint is that the vehicle in question was having manufacturing defect and due to these defects the complainant-appellant suffered loss a lot.  There is no allegation in the consumer complaint against the respondent No. 2.  So far vehicle in question was purchased by the appellant for commercial use is concerned, the appellant has categorically stated in the grounds of appeal as well as in accompanying affidavit that there is no iota of evidence on record to substantiate the defense taken that the impugned vehicle was taken for commercial purpose. In the grounds of appeal, the appellant has mentioned that the appellant is not a transporter and does not have any other vehicle and he had taken the vehicle for self-employment only and the entire purpose to purchase the impugned vehicle was that he could earn his livelihood by use of it. 

10.     From the perusal of the entire record of the District Forum, we could not find any evidence regarding commercial use of the vehicle or that the appellant had purchased the vehicle enhancing the fleet of commercial vehicles or it was taken for commercial purpose. Therefore, we cannot accept these findings of the Forum below that the vehicle in question was purchased by the appellant for commercial purpose.  So far the vehicle is concern, the appellant has not proved that the vehicle was forcibly taken by respondent No. 2 from the custody of the appellant in any way.  As the respondent No. 1 has already changed a new engine in the vehicle, therefore, there is no question of manufacturing defect in the vehicle.  So far respondent No. 2 is concern there is no evidence on record to show that the vehicle in question was forcibly taken away by the respondent No. 2 from the custody of the appellant.

11.     The District Forum has properly considered the facts and circumstances of the case and has passed a reasoned order that the respondents have not committed any deficiency in service, consequently the appeal is liable to be dismissed.  

12.     For the reasons aforesaid, the appeal is dismissed. The order impugned dated 25.05.2009 passed by the District Forum, Dehradun in consumer complaint No. 152 of 2005 is hereby confirmed.  No order as to costs.