Haryana

Ambala

CC/182/2023

GURSEV SINGH. - Complainant(s)

Versus

METRO MOTORS PVT.LTD. - Opp.Party(s)

SANDEEP SACHDEVA.

02 Dec 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	182 of 2023
Date of Institution	:	18.05.2023
Date of decision	:	02.12.2024

Gursev Singh, aged about 32 years, son of Sh. Hakam Singh, resident of 110, Panjola, Naneola, District Ambala.

          ……. Complainant

                                                Versus

1. Metro Motors Pvt. Ltd, Village Mohra, Tehsil and District Ambala through its Prop./owner.
2. TATA Motors Ltd., 4th Floor, Ahura Centre, 82 Mahakali Caves Road, MIDC Mumbai-400093 Andheri (East),

                                                                                   ….…. Opposite Parties

Before:          Smt. Neena Sandhu, President.

                       Smt. Ruby Sharma, Member.           

 

Present:        Shri Sandeep Sachdeva, Advocate, counsel for the complainant.

                      OP No.1 proceeded against ex parte vide order dated 24.07.2023.

                     (Shri Abhishek Bansal, Advocate, counsel for the OP No.1, which was allowed to join the proceedings vide order dated                               28.02.2024)

                     Shri Shekhar Bansal, Advocate, counsel for the OP No.2.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to it:-

           (a) To pay Rs.5 lacs i.e the value of the vehicle, alongwith interest @24% p.a.

          (b)  To pay Rs.1 lac as compensation for mental agony and   physical harassment suffered by the complainant.

          (c) To pay Rs.22,000/- as cost of litigation

                                       Or

          Grant any other relief which this Hon’ble Commission may deems fit. 

            

2.           Brief facts of the case are that complainant has purchased a car i.e TATA Xenon, having Chassis No.MAT464212JSE07826, Engine No.4SPCR10ERY-627543, from the OPs, in the month of May 2018 and the same was purchased by taking the loan from Indusind Bank Limited. He got it registered from the concerned authority in his name, having registration No.HR-01-AS-9258. At the time of purchase of the said vehicle, the OP No.1 assured the complainant that it is a very good vehicle and will not create any problem in future. Showroom prize of the said vehicle was Rs.6,90,000/-. Complainant also paid Rs.60,000/- as registration fee to the OP No.1.  It is pertinent to mention here that the complainant is paying, monthly installment of Rs.16,400/- to the bank, without enjoying the said vehicle. It became out of order, due to engine problem since February 2019, when it covered the mileage of 30000/- KM only. At that time complainant approached the OPs, who told him that since the vehicle is still in warrantee and they will replace its engine and make the vehicle in order. After taking normal charges, OPs repaired the said vehicle and assured that they have solved the engine problem and it will not create any problem in future. Keeping faith in the work of the OPs, the complainant did not force them for the change of engine of the said vehicle at that time. The said vehicle again got out of order, in the month of March 2020 and the same is still lying in the workshop of the OP No.1 since 09.03.2020.
3.           It is pertinent to mention here that prior to that it has become out of order 2/3 times but every time the OPs repaired the same and assured that it will not create any problem in future. Inspite of that problem remained the same as there is unbearable noise from the engine, at the time of plying the said vehicle on road.  The complainant visited the OPs several times for the replacement of the engine of the said vehicle, but they always postponed the matter on one pretext or the other. OPs could not remove the defect(s) of the vehicle, as such, it is still in their possession. Complainant served legal notice dated 17.03.2020 upon the OPs, but to no avail.  By neither rectifying the defect(s) of the engine nor replacing the same, the OPs have not only committed deficiency in service but also indulged into unfair trade practice. Hence, the present complaint.
4.           Despite service none put in appearance on behalf of OP No.1, therefore, it was proceeded against ex parte vide order dated 24.07.2023. However, Shri Abhishek Bansal, Advocate, thereafter appeared for the OP No.1 and filed an application on behalf of OP No.1, seeking permission for joining the  proceedings. Vide order dated 28.02.2024, the said application was allowed and permission was granted to the applicant/OP No.1 to join the proceeding and was allowed to fie written arguments on the basis of documents already on record.
5.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections with regard to maintainability, not come with clean hands and suppressed the material facts and bad for non-joinder of necessary party etc. On merits, it has been stated that the answering OP is the manufacturer and sells its vehicles to its authorized dealer on Principal to Principal basis on invoice basis. It is the authorized dealer, which thereafter, sells the same to the customers in open market and all the sale and after sales services comes under the preview of authorized dealer and the OP has nothing to do with the same. Furthermore, the answering OP has no privity of contract with the complainant. It is further stated that since the vehicle has been brought first time for engine issue only on 04.05.2019 and at that point of time, the vehicle had already covered 35,991/- kms, under which the required repairs were carried out to the entire satisfaction of the complainant as per warranty terms and conditions. As per information received from OP No.1, the vehicle was reported on 07.01.2019 at 15,456 kms for first free service and thereafter reported on 20.03.2019 at 31,567 kms for accidental repairs, which were duly carried out by the concerned workshop on payment basis as accidental repairs do not cover warranty clause. The complainant had used the vehicle negligently and carelessly, thus no amount is payable to him as per clause no. 5 of the terms and conditions of warranty. It is further stated that had there been any engine issue, the vehicle could not have covered the mileage of 57768 kms till 04.03.2020 i.e. about less than 2 years from the date of sale of vehicle which speaks volume that the vehicle is not having any problem in engine. Rest of the averments of the complainant were denied by the OP No.2 and prayed that the complaint filed by the complainant may be dismissed qua the answering OP.
6.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW/A alongwith documents as Annexure C-1 to C-6 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP No.2 tendered affidavit of Sharmendra Chaudhry, Deputy General Manager-Legal of OP No.2 Company-Tata Motors Limited, having its Regional Office at 2^nd Floor, Salcon Platina, Opposite Bristol Hotel, M.G.Road, Gurugram, Haryana as Annexure OP2/A and closed the evidence on behalf of OP No.2.
7.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
8.           Learned counsel for the complainant submitted that the vehicle in question, which was parked in the workshop premises of the OPs for repairs, suffered a total loss due to a fire that occurred in the year 2020. He further submitted that according to the insurance policy (Annexure C-6), the insured declared value of the vehicle was Rs.5,00,000/- but not even a single penny has been paid to the complainant by the OPs. He further submitted that though the OP No. 1 claimed in its reply to the legal notice that it had sent a cheque for an amount Rs.1,08,692/- on 18.01.2023 to the complainant but the same has never been received by him. He further submitted that the OPs have failed to provide any convincing evidence to explain why the full IDV of the vehicle, as stipulated in the insurance policy, has not been paid to the complainant.
9.           The OP No.1 was allowed to join the proceedings vide order dated  28.02.2024 and the learned counsel for OP No.1 has submitted that a fire took place in the premises of OP No.1 and resulted in the destruction of several vehicles, including the complainant’s vehicle. He further submitted that as per the fire policy of premises of OP No.1, it settled the claim of the complainant after making payment of Rs.1,08,692/- vide cheque no.046041 dated 18.01.2023.
10.           The learned counsel for OP No.2 has also submitted that the premises of the OP No.1 caught fire and the vehicle’s parked there including the complainant’s vehicle got burnt. He further submitted that as per the fire policy of premises of OP No.1, it had settled the claim of the complainant after making payment of Rs.1,08,692/- vide cheque no.046041 dated 18.01.2023. He further submitted that since the vehicle in question was financed from IndusInd Bank, therefore, first charge of the amount is of the said bank.
11.           It has not been disputed by OPs No.1 and 2 that the insured vehicle, which was parked in premises of OP No.1  for defects rectification,  caught fire in the premises of the OP No.1 in March 2020, as a result of which, it was completely burnt. It is also coming out from insurance policy, Annexure C-6 that the insured declared value (IDV) of the vehicle in question was Rs.5,00,000/-. The OP No.2 has failed to place on record any documentary evidence or correspondence, if any, provided by OP No.1 to it, to substantiate the payment of amount of Rs. 1,08,692/- or to show that the insurance company of OP No.1 paid only that amount for the complainant's vehicle. It has not provided any policy document, insurance settlement letter, or details of the amount received by the OP No. 1 from its insurance company.
12.           It may be stated here that OP No.1 was responsible for the safe-keeping of the complainant’s vehicle when parked there for defect rectification during warranty period and therefore any loss or damage to the vehicle due to fire in its premises could be construed as negligence on its part, unless the OPs can provide evidence to the contrary. The plea of the complainant is that he has not received the payment of Rs.1,08,692/- as alleged by the OPs No.1 and 2. No proof of payment has been provided by the OPs in the form of bank statements, receipt acknowledgment, or any other corroborative documents. In the absence of any documentary evidence, the contention of the OP No. 1 that it had paid the amount of Rs. 1,08,692/- to the complainant, cannot be believed.
13.           In light of the above facts and evidence, we are of the considered view that it is OP No.1 who is liable for the negligence that led to the fire and the resultant damage to the complainant’s vehicle and as such is liable to make payment of Rs.5 lacs i.e. the IDV of the said vehicle.
14.           Since no deficiency in service or negligence has been proved on the part of OP No.2 therefore, complaint against OP No.2 is liable to be dismissed.
15.            In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.2 and allow the same against OP No.1 and direct it, in the following manner:-

1. To pay the complainant the full insured declared value (IDV) of Rs.5,00,000/- along with interest @ 6% per annum from the date of filing of the complaint i.e 18.05.2023, till its realization.
2. To p ay Rs.5,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.3,000/-, as litigation expenses.

                   The OP No.1 is further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OP No.1 shall pay interest @ 8% per annum                                                           on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

  Announced:- 02.12.2024

 

 

	(Ruby Sharma)	(Neena Sandhu)
	Member	President