Madhya Pradesh

StateCommission

A/08/490

FORCE MOTORS LTD. AND ONE ANOTHER - Complainant(s)

Versus

MOHD. WASEEM - Opp.Party(s)

28 Feb 2019

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,

PLOT NO.76, ARERA HILLS, BHOPAL

 

                                      FIRST APPEAL NO. 490 OF 2008

(Arising out of order dated 15.01.2008 passed in C. C. No.82/2007 by District Forum, Ratlam)

 

 

1. FORCE MOTORS LTD,

    A FIRODIYA ENTERPRISES,

    PLOT NO.3, SECTOR NO.1,

    PEETHAMPUR INDUSTRIAL ESTATE,

    PEETHAMPUR DISTRICT-INDORE.

 

2. M/S CHANDRA MOTORS,

    MAHU ROAD, SALAKHEDI, RATLAM M.P.                                                                                 ….       APPELLANTS.

 

Versus

 

MOHAMMAD WASEEM,

S/O SHRI MUSSARAT HUSSAIN,

R/O 24, UNKALA ROAD, NAV BHARAT NAGAR,

RATLAM (M.P.).                                                                                                                                ….       RESPONDENT.   

                     

BEFORE :

            HON’BLE SHRI JUSTICE SHANTANU S. KEMKAR   :    PRESIDENT

            HON’BLE DR. (MRS) MONIKA MALIK                         :    MEMBER

        

COUNSEL FOR PARTIES :

Shri Deepesh Joshi, learned counsel for the appellant no.1.

Ms. Chitra Sharma, learned counsel for the appellant no.2.

            Shri V. K. Saxena, learned counsel for the respondent.

                                                     O R D E R

                                       (Passed On 28.02. 2019)

                   The following order of the Commission was delivered by Dr. (Mrs) Monika Malik, Member:

           

                   This appeal is preferred by the opposite parties/appellants against the order dated 15.01.2008 passed by the District Consumer Disputes Redressal Forum, Ratlam (For short the ‘Forum’) in C.C.No. 82/2007, whereby the complaint filed against them is partly allowed and they are directed to refund the cost of the allegedly defective vehicle after obtaining the same from the complainant, i.e. Rs.4,20,000/- with interest @ 6% p.a. from the date of filing of complaint, till realization.  Additionally, Rs.1000/- as cost has also been awarded to the complainant.

2.                     The complainant had approached the Forum stating that he had purchased a Cargo King Vehicle bearing chassis no. T-57045615 and Engine No. D-27013302 on 09.11.2006 for Rs.4,20,000/- from opposite party no.2, which was manufactured by opposite party no.1.  The complainant had got the body and cabin of the vehicle prepared at his own expenses and had paid Rs16,000/- in this regard.  The vehicle was giving low average since beginning and the complainant had intimated the opposite party no.2 in this regard on

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various occasions but the opposite parties neither repaired nor replaced the aforesaid vehicle.  Alleging deficiency in service on part of the opposite parties, the complainant lodged complaint before the Forum.

3.                     The opposite parties resisted the complaint stating that the subject vehicle which was purchased by the complainant on 09.11.2006, met with an accident on 01.12.2006, when it was being used for commercial purposes, for loading the vegetables from Ratlam to Udaipur. The vehicle met with an accident within 22 days of its purchase and the defects as alleged by the complainant were reported, subsequently.  The complainant had lodged an FIR in the above regard and had also filed claim with the insurance company.  It is submitted that terms and conditions of the warranty of the vehicle expires when an accident occurs. The vehicle was not having any manufacturing defects and the defects as alleged by the complainant are subsequent to an accident, and are therefore beyond the scope of the warranty.

4.                     Heard. Perused the record.

5.                     Learned counsels for both the opposite parties/appellants argued that the complainant/respondent had availed free service of the vehicle on 08.12.2006 and 08.02.2007 at the service station of the appellant no.2.  There was no manufacturing defect in the vehicle.  The complainant/respondent does not fall within the definition of ‘consumer,’ as defined under the Consumer Protection Act, since he was using the vehicle for commercial purposes.  The vehicle met with an accident on 01.12.2006, when it was taken from Ratlam to Udaipur.  Due to the accident, engine, steering, as well as body parts and various other parts of the vehicle got badly damaged.  The respondent had started alleging defects in the vehicle, after the accident.  Counsels for appellants referred to condition no. 28 of the terms of the warranty, stating that they are not responsible for the defects which arise in the vehicle, due to accident.  The right of free servicing of the vehicle also does not survive.  It is further argued that the respondent has already received compensation Rs.25,000/- from the insurance company on above account.  Counsels also referred to clause no. 15 & 16 of the warranty in order to substantiate their arguments and stated that the warranty is not applicable to the cabin and body of the vehicle, which were installed by the complainant/respondent from somewhere else.  The respondent was not entitled for second free service of the vehicle, which had already met with an accident, but the

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appellants had provided the same in order to maintain good will. No deficiency in service can be alleged by the respondent in the instant matter, since he had made allegations, which are contrary to the terms and conditions agreed by both the parties.  Counsels referred to the judgment of the Hon’ble Supreme Court in C. N. Anantharam Vs Fiat India Ltd & Ors IV (2010) CPJ 56 (SC) and the judgment of the Hon’ble National Commission in Sukhvinder Singh Vs Classic Automobile & Anr. I (2013) CPJ 47 (NC) to support their submissions.

6.                     Learned counsel for the complainant/respondent argued that the subject vehicle was having manufacturing defects. It was not functioning properly and it was giving less average than promised. The appellants were informed in this regard on 08.12.2006 as well as on 08.02.2007. Since the appellants did not repair the vehicle and were negligent in providing service, the defects in the vehicle persisted. The appellants are deficient in service as they sold him a defective vehicle.  

7.                     The opposite parties/appellants have made a submission that the vehicle met with an accident within 22 days of its purchase.  The subject vehicle was purchased on 09.11.2006 and had met with an accident on 01.12.2006, regarding which FIR was lodged in Police Station-Loharia, District-Baanswada, Rajasthan on 02.12.2006.  We observe that in the Police Report, which is there on record it is mentioned that the vehicle, was taken from Ratlam to Udaipur, and met with an accident en route.  It is mentioned that left side of the vehicle got damaged.  It is reported that there was damage in engine, in steering and in other body parts of the vehicle.  The complainant/respondent has not hinted in this regard in the complaint filed by him.  He has alleged that the vehicle was having manufacturing defects, due to which it met with an accident.  However, the evidence on record does not substantiate the respondent’s submission.  No service report/job card is there on record, to substantiate that the respondent had intimated regarding the alleged defects reported in the subject vehicle, to the appellants.  The complainant/respondent has not ever countered the submissions of the opposite parties/appellants.     

8.                     It is noteworthy that in the service coupon dated 08.12.2006, the vehicle was run for 5,045 km and after two months i.e. on 08.02.2007 it had already run for 11,235 km.  Undisputedly, the vehicle was being used extensively. The complainant/respondent has also not challenged this fact that the vehicle met with an accident. Condition no.28 of the

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terms and conditions of the warranty specifies that “The warranty shall not apply where the damage to the vehicle or parts thereof is due to an accident.”

9.                     In this view of the matter, we infer find that the appellants have not been negligent or deficient in service.  The Forum has erred in passing the impugned order and directing the appellants to refund the cost of the subject vehicle.  Therefore, the impugned order is set-aside.  This appeal, by the appellants is allowed.  However, no order as to costs.  

 

           (JUSTICE SHANTANU S. KEMKAR)                  (DR. MONIKA MALIK)

                           PRESIDENT                                                    MEMBER