DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALWAL
Consumer Complaint No. 60 of 2014
Date of Institution: 22.05.2014
Date of Decision : 18.03.2015
Ankit Enterprise Jawahar Nagar, Palwal, Tehsil & Distt. Palwal through its Prop./partner Rajesh Kumar s/o Om Parkash, R/o village Asawata 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/applicant is a proprietor/partner of M/s Ankit Enterprise situated at Jawahar Nagar, Tehsil & Distt. Palwal, the complainant purchased on 2.1.2013 (after getting lured and pressurized by the opposite party no. 2). The vehicle MAXXIMO STD LOAD CARR from opposite party no. 2 who is dealer of opposite party no. 1 after purchasing the same the complainant got it financed from
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Mahindra & Mahindra Ltd. sister concern of the opposite party no. 1. The vehicle PICK Up bearing registration no. HR-73/4885. (No proof of ownership and RC placed on file or submitted).
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 at five places.
(ii) Engine brust.
(iii) Cabin crack.
(iv) Hossing crack of Gas Box.
(v) No Accident No claim.
(iv) Chamber broke.
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 23.9.2013, 11.2.2014 and 3.9.2013 for which the complainant was compelled to pay from his own pocket a sum of Rs.7700/-, Rs.20,000/- and Rs.5300/- 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-73/4885 with the new one in place of defective vehicle without delay and in addition to it the complainant have asked for paying compensation to the tune of Rs.1,00,000/- for
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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 2.1.2013 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 22.2.2013 for clutch check and rear 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 6.5.2013 with the problem of clutch hard check, gear struck check and the same was checked and got rectified to the full satisfaction of the complainant. It is further submitted that complainant brought the vehicle in question for the 3rd time on 7.8.2013 with the problem of chamber broken and socker problem 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 31.8.2013 with starting problem, horn not working and for checking of brakes 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 2.9.2013 with starting problem and R.H.S. door adjust which was done to the satisfaction of the complainant and the vehicle was again brought for the 6th time on 21.11.2013 with the problem of pick up low and E.C.U. Check and the complainant was attended and vehicle’s 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
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technician and defect was removed 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 regarding the document but 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
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question. Further the opposite party no. 2 has denied that complainant 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 the affidavit of proprietor/partner Sh. Rajesh Kumar son of sh. Om Parkash 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 copy of legal notice which is Ex.C-1 alongwith postal receipts through which the notice was sent to the opposite parties. The postal receipts are Ex.C-5 and Ex.C-6. The complainant have also placed on record the payment receipts of bills to Haryana Automobiles which are Ex.C-2 to Ex.C-4. The bills are dated 23.9.2013, 11.2.2014 and dated 3.9.2013 amounting to Rs.7700/-, Rs.20,000/- and Rs.53,00/- respectively. He has alleged to have paid for services from his own pocket to Haryana Automobiles Workshop at Palwal.
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
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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 written arguments and also hearing oral arguments and 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 a proprietor/partner firm in which the vehicle in question was being used for commercial purposes as the vehicle in question was PICK-UP VAN meant for lodging of material and other goods.
The complainant have not placed on record the copy of RC, invoice i.e. payment made at the time of purchase of the vehicle in question from opposite party no.2. No other document as such route permit, hypothecation agreement and proof regarding manufacturing defect such as report of some Inspector, Supervisor or Engineer who is competent person have not been submitted to prove the manufacturing defect which the complainant is alleging.
Though it is admitted fact that vehicle in question was purchased from the opposite party no. 2 and opposite party no. 1 have also admitted that the vehicle in question was brought to the service centre 6 to 7 times and problem was rectified to the satisfaction of the complainant. Further it is also admitted by the opposite party no.1 that
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vehicle in question is in good and in working condition and is not being picked up by the complainant. It is settled law that complainant should prove his case as and onus of proving lies on him and the complainant case should stand on his own legs and not on the clutches of opposite parties. The complainant have failed to prove the allegations levelled in the complaint in toto.
The bone of contention in the present case is:-
(i) Whether the vehicle in question is being used for commercial purpose and it has got registration of the vehicle for commercial purpose?
(ii) If it was used for commercial purpose then whether the complainant is a consumer under the Consumer Protection Act?
From the facts on file as the copy of RC/hypothecation agreement, route permit, invoice, insurance policy of the vehicle in question and other relevant documents have not been placed on file and it is clear that the vehicle in question is PICK-UP VAN meant for loading goods and other material and sending it from one place to another and it is clear that the vehicle in question was being used for commercial purpose and it was also got registered for commercial activities and hence the complainant is not coming within the purview of CONSUMER under the Consumer Protection Act under Section 2(i) (d) and as such he is not entitled for any relief as claimed for. Further it has been clearly mentioned in para no. 5 in complaint that he could not earn single pie/paisa and remained disturbed and in the title of the complaint itself it is clearly mentioned that it is proprietor/partnership firm and no authority letter from the second partner has placed on file.
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Resultantly, this Forum is of the view that the complaint of the complainant is dismissed as the vehicle in question is of commercial nature and is not covered under the provisions of Consumer Protection Act and complainant is not a consumer under section 2(i) (d) of Consumer Protection Act. 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 10 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.
