Haryana

Ambala

CC/200/2013

M/S C.M JEWELLERS, - Complainant(s)

Versus

MANISH KANTAK - Opp.Party(s)

SANDEEP SACHDEVA

03 Aug 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

        Complaint Case No. : 200 of 2013

       Date of Institution    : 08.08.2013

          Date of Decision      : 03.08.2017

 

M/s C.M. Jewellers, New Whole Sale Cloth Market, Opposite Bal Bhawan, Ambala City, through its Partner Sachin Aggarwal.

……Complainant.

 

Versus

 

1. Manisha Kantak, Head/CRM Nissan Motors India Pvt. Ltd. ASV Ramana Towers, 37 & 38, Venkatnarayana Road, T.Nagar-600017.

 

1A. Manisha Kantak, Head/CRM Howver Automotive India Pvt. Ltd. Grande Palladium, 5^th Floor ‘B’ Wing 175, CST Road,Kalina, Santacruz (East)        Mumbai-400098.

 

2.  Mohan Vehicles Pvt. Ltd. 13/40 Km Stone, Tepla, Auto Hub, Ambala-Jagadhari Highway, Ambala through its service manager.
3. Malwa Motors, Karnal through its owner/partner.  

 

……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:       SH. D.N. ARORA, PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.

                        MS. ANAMIKA GUPTA, MEMBER.

                       

Present:          Sh.Sandeep Sachdev, Adv. for complainant.

                        Sh.Ashwani Bhandari, Adv. for counsel for OP No.1.              

                        Sh.P.S.Sharma,Adv. counsel for Op No.2.

                        Sh.Keshwav Sharma, Adv. for OP No.3.

 

ORDER:

 

                        In nutshell, brief facts of the present complaint are that the complainant purchased a car from OP No.3 on 10.06.2011 and the same has been allotted registration No.HR01U/8888.  The vehicle started giving problems from day one of its purchase and the complainant reported the matter number of times to the authorized dealers of Op No.1 at Karnal and Khanna. The vehicle got repaired many times on different dates; therefore, the complainant could not enjoy the new car. The complainant approached the local dealers many a times and also contacted the OPs toll free number but every time they assured that in future the car would not broke down.  On 01.06.2013 when the car was parked in the residence of the complainant then it did not start in the morning. The complainant intimated about this to the OPs but no one had visited his house for checking and repairing the car and it remained part there for 2-3 days but thereafter complainant managed to start the car but thereafter it again went out of order. After intimation, the OPs sent mechanic for checking the car who after examining the car disclosed some problems and also asked for shifting of the car to workshop of OP No.2.  The car remained in the workshop of OP No.2 for 10/15 days and the complainant was intimated that four parts of the car are required to be changed and the same would cost around Rs.1 lac. On this the complainant visited OP No.2 then it was intimated to him that two parts BCML and EPS of the vehicle are required to be changed and it will cost around Rs.70,000/-. The complainant got repaired the said car and paid the price thereof under protest but the parts again went out of order before completing of two years of warranty/guarantee period, therefore, the complainant has not only suffered financial loss but also faced mental agony and harassment. The complainant got served legal notice upon the OPs but to no avail.  The act and conduct of the OPs clearly amounts to deficiency in service and unfair trade practice on their part. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C5.

2.                     Upon notice OPs appeared and contested the complaint by filing separate replies. Op No.1 in its reply has taken many preliminary objections such as maintainability as the car was being used in the business of firm dealings and the present complaint is barred by litigation. It has been further submitted that the Op No.1 is not an employee Hover Automotive India which is distributor of Nissan which works on principal to principal basis. The manufacturer of the car is only liable for any defect. The complainant had purchased the car on 10.01.2011 and he after using the said car had filed the present complaint after 2-1/2 years.  The car in question was repaired upto to satisfaction of the complainant and regarding this satisfaction note dated 29.11.2012, 30.01.2013 and 14.05.2013 were also issued. On 29.11.2012 the car was taken for paid service, on 30.01.2013 abnormal wear of tyre and on 14.05.2013 accidental repairs work was done.   There is no deficiency in service on its part because the present complaint has been filed with malafide intention. There was no manufacturing defect in the vehicle and if any part is found to be defective the same is replaced without any charges. Prayer for dismissal of the complaint has been made.

3.                     OP No.1/A in its reply has submitted that the complainant has no cause of action to file the present as the same has been filed by suppressing the material facts from this Forum.  The vehicle was purchased on 10.01.2011 and the present complaint had been filed after more than 2-1/2 years. OP No.1/A has taken more or less the same ground as taken by Op No.1 in its reply. However, it has been submitted that the vehicle was repaired and parts were replaced on paid basis as the vehicle was out of warranty.

3.                     OP No.2 in its reply has submitted that on 28.06.2013 on the request of the complainant technician visited the residence of the complainant as his car was not starting. On examination it was found that battery of car was got recharged from outside and after re-fitting of the battery problems started in the same. The complainant was asked for shifting the car to the service centre for thorough checking as well as for repair work. The car was taken to the service centre after towing the same on 29.06.2013.  Since all the lights of the car were not working, therefore, rough estimate was given to the complainant and the tentative cost of the two parts  BCM and Steering Lock set  was asked to him as Rs.61025/- plus labour charges.  The car was out of warranty therefore, the parts were to be replaced on paid basis. Vide letter dated 20.07.2013 the complainant was requested to give permission for repair work and therefore, after permission, the vehicle was repaired upto the satisfaction of the complainant and the delivery thereof was given to it on 13.08.2013. The vehicle also got serviced again on 11.09.2013 and since then the complainant is using the vehicle without any trouble. The complainant again intimated about the fault in the vehicle of 28.09.2013 after expiring the warranty period on 09.06.2013. Other pleas taken in the complaint have been controverted and prayer for dismissal of the complaint has been made.

3.                     OP No.3 in its reply has submitted that the vehicle was being used for commercial purposes, therefore, the complainant does not fall within the ambit of consumer and the present complaint has been filed for taking undue benefit despite the fact that the vehicle was out of warranty and the complainant had never visited its workshop in Karnal after purchasing the vehicle. Objections about maintainability of complaint, limitation and jurisdiction of this Forum have also been taken.  All the Ops have tendered affidavits Annexure RX, Annexure RY, Annexure RA, Annexure RZ and documents Annexure R1 to Annexure R9.

4.                     We have heard learned counsel for the parties and gone through the record very carefully.

5.                     Learned counsel for the Opposite parties has firstly argued that the present complaint is not maintainable because the complainant has sold the vehicle in question during the pendency of this complaint and in support of his contention he produced the copy of registration certificate issued in the name of Amit Dhawan son of Jeevan Dhawan r/o 2072, Baldev Nagar Ambala City by the concerned Registration Authority and purchaser has also got the service of the vehicle done in his name vide satisfaction note dated 04.01.2016 (Annexure R8), meaning thereby the vehicle in question has been sold prior to 04.01.2016.

                        On the other hand, the complainant was asked to explain position whether he has sold the vehicle to Sh. Amit Dhawan but the complainant has not rebutted the above said query. Rather opposite parties have tendered into evidence an affidavit Annexure RA duly sworn by Sh.Rohit Khanna, Managing Director of Mohan Vehicles Pvt. Limited (OP No.2) wherein it has been specifically mentioned about selling of vehicle by the complainant to Sh.Amit Dhawan son of Jeevan Dhawan. It has also been specifically mentioned that the complainant firm himself got the car in question serviced from Op No.2 on 11.09.2013, 17.04.2014, 04.10.2014, 13.06.2015 and 12.08.2015 and satisfaction notes were also executed by the complainant regarding the service, which shows that the complainant was having no grievance regarding defect in the car. Learned counsel for the opposite parties placed on reliance case laws titled as Maruti Sales and Service (Delhi) Vs. Mr.Romi Sikand 2016 (4) CPJ 110  and Audhut Parab Vs. M/s Dempo Marketing Pvt. Limited 2016 (3) CPJ 577 (NC) wherein Hon’ble National Commission has held that The petitioner cannot retain the position of consumer after sale of vehicle.  The above said judgments are fully applicable to the present case, therefore, there is no substance in the complaint and it deserves dismissal. Accordingly, we dismiss the present complaint leaving the parties to bear their own costs.         Copies of the order be sent to the parties, free of costs, as per rules.  File be consigned to the record room after due compliance.

 

Announced on: 03.08.2017                                                            (D.N.ARORA)

                                                                                                  PRESIDENT

                                                                       

 

 

(PUSHPENDER KUMAR)                          (ANAMIKA GUPTA)

        MEMBER                                                              MEMBER