Haryana

Jind

CC/33/2012

Darshan Jangra - Complainant(s)

Versus

M/S Badhwar Automobiles - Opp.Party(s)

Sh J.N. Bhardwaj

29 Nov 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM, JIND. 
                                                Complaint Case No : 33 of 2012
                                                    Date of Institution   : 01.02.2012
                                                      Date of Decision      : 29.11.2016

Darshan Jangra s/o Sh. Sukhdev Singh r/o Vijay Nagar, Jind, Tehsil & District Jind.
                                                                                      ….Complainant.
                                       Versus
M/s Badhwar Automobiles (P) Ltd. Sonepat Road near CSD Canteen, Rohtak through its Proprietor/Responsible Person/Onwer.
General Motors India Pvt. Ltd. Customer Assistance Center, Plot No.15, Echelon institutional Area, Sector 32, Gurgaon-122001, Haryana through its Managing Director/Responsible person/owner.
Proprietor/ Owner, Lekh Raj Motors Pvt. Ltd. (LRM) Cheverolt Jind Showroom and Workshop Opp. Brahmin Dharamshala Safidon Road Jind, Tehsil & District Jind. 
                                                              …..Opposite parties.

                          Complaint under section 12 of the
                          Consumer Protection Act, 1986.

CORAM: SH.A.K. SARDANA PRESIDENT.
      SMT. BIMLA SHEOKAND, MEMBER.
              SH. M.K. KHURANA, MEMBER.    

Present:  Sh. J.N. Bhardwaj, Adv. counsel for complainant.
          Sh. Rajnish Garg Adv. counsel for OP No.1 
          Sh. Lokender Kumar Adv. counsel for OP No.2.
          Sh. R.S. Sindhwani Adv. counsel for OP No.3.
         
ORDER:

             Brief facts of the  present complaint are that  the complainant  purchased Cheverolet Beat CT Diesel car bearing chassis No. MA6BFBGNBBT065017, Engine No. 10AB5Z112060025 in a sum of Rs.5,38,000/- vide receipt No.1271 dated 29.8.2011 from OP No.1. Warranty of said vehicle was provided by OPs for a period of 3 years or upto 3,00,000 K.M. whichever is earlier but OP No.1 did not hand over  any original bill & other documents to complainant  on the date of sale & delivery of vehicle to  till today and thus the complainant failed to get the said vehicle registered with  the competent authority. It has been further alleged by the complainant that for the last  three months, the aforesaid vehicle of complainant has become defective completely and  is not in working condition because its breaks are Jam and its engine is lying defective and not in working condition. Therefore, complainant made a complaint to OPs and requested for repairing the said vehicle or to replace the same with a new one and also to handover the original documents of the vehicle in question but  the OPs did not pay any heed on the request of the complainant. So, complainant served a legal notice dated 19.12.2011  through his counsel upon the OPs but all in vain.  As such, the complainant has submitted that the OPs are  deficient in services by not repairing the vehicle of complainant,  nor handing over  the original documents  to him and  prayed that the complaint be accepted and OPs be directed to replace or repair the above said car or refund the price of car amounting to Rs.5,38,000/- and to make the payment of taxi charges for three months amounting to Rs.1,20,000/- and to pay a sum of Rs.2,000,00/- as compensation on account of mental pain & harassment to the complainant.  
2.    Upon notice, OPs  appeared through counsels and tendered their written versions separately. OP No.1 urged in the preliminary objections that complainant has no cause of action & locus-standi to file the present complaint. On merits, OP No.1 urged that complainant never visited  to their office for repairing of his vehicle at any time and all the original bills & documents were handed over  to the complainant at the time of delivery of vehicle.  There is no local office & local dealer of the answering OP  at Jind and as such, this Forum has no territorial jurisdiction to decide the present complaint and    there is no deficiency in service  on the part of answering OP & prayed for dismissal of complaint with compensatory costs. 
3.    OP No.2 filed reply to complaint separately raising preliminary objections that the present complaint is not maintainable under the provisions of Consumer Protection Act since the complainant himself has stated in para No.4 of the complaint that he has purchased the vehicle for running his business meaning thereby for commercial purposes and the scope of Consumer Protection Act is strictly confined to goods & services meant for consumption purposes only. Further, the complainant has nowhere stated in whole of the complaint that the vehicle in dispute is being used to exclusively earn a livelihood through self employment and thus the present complaint is barred under the provision of Consumer Protection Act from all the angles. On merits,  OP No.2 urged that as may be seen from the records of vehicle history & maintenance, the car was not brought for its first free service at 5000 Kilometers and spurious brake oil was found in the vehicle, wherefrom  it is clear that the complainant is taking the vehicle to unauthorized service centers where the said spurious brake oil seems to have been filled in and thus the complainant himself stands totally responsible for this concern in the breaks in as much as it stands strictly instructed in the owner’s manual/warranty terms & conditions that the vehicle is required to be attended to only at authorized workshops/service centers of OP company. Further  the warranty of the vehicle was for three years or 1,00,000 kilometers whichever is reached earlier and not upto 3,00,000 kilometers as alleged in the complaint. In the end, OP No.2 has contended that  there is no deficiency in service  on the part of answering OP & prayed for dismissal of complaint with  costs. 
4.    OP No.3 filed written statement raising preliminary objections that the  complaint is not maintainable in the present form and complainant has  no cause of action and locus- standi to file the present complaint. On merits, it  has been urged that there is no occasion of the complainant to lodge any complaint with the answering OP since he has purchased the vehicle from OP No.1 at Rohtak and OP No.2 is the  manufacturing company and thus they are  responsible for removing the defect, if any, of the vehicle in question. Complainant has not availed any services from answering OP and thus question of any loss from answering OP does not arise at all. As such, there is no deficiency in service on the part of answering OP and prayed for dismissal of complaint with costs of Rs.25,000/-. 
5.    To prove his contention, counsel for  complainant tendered  affidavits of complainant as Ex. C-1, Ex.C-3& Ex. C-4 and affidavit of one  Bal Ram  Mechanic as Ex. C-12 alongwith documents as  Ex. C-2 &  Ex. C-5 to Ex. C-11  and closed the  evidence whereas on the other hand, counsel for OP No.2 tendered affidavit of  Sh. Rajesh Panwar, Manager Legal, as Ex. OP-1 alongwith   document as Ex. OP-2, counsel for OP No.1 tendered affidavit of Sh. Arvinder Singh, showroom Manager as Ex. OP-3 and counsel for  OP No.3 tendered affidavit of Sh. Varun Mehta Sales Manager as Ex. OP-4 and closed the evidence on behalf of OPs. 
6.    We have heard the Ld. Counsels of both the parties and perused the record placed on file. The Ld. Counsel for the complainant argued that the  complainant has purchased Cheverolet Beat CT Diesel Car from OP No.1 on 29.8.2011 for a sum of Rs.5,38,000/- but the OP No.1 has failed to deliver the original bill and other documents to the complainant till today resulting into non registration of vehicle in question with the competent authority.  Counsel for the complainant further argued that the vehicle in question has become defective within warranty period and is not in working condition since its break & engine  are not functioning properly.  Several complaints have been made with the OPs but the OPs failed to rectify the defect in the vehicle in question. So, deficiency in service on the part of the OPs is established and requested for allowing the complaint. 
7.    On the other hand, the Ld. Counsel for the OP No.1 argued that the complainant has no locus-standi to file the present complaint against OP No.1 at Jind since   the vehicle in question was purchased by the complainant from OP No.1 at Rohtak and no branch office or local dealer of OP No.1 is situated at Jind and as such this   Forum has got no territorial jurisdiction to decide & entertain the present complaint. Counsel for OP No.1 further argued that  vehicle in question  was  never sold by the OP No.1 without  bills/documents as alleged by the complainant.  The Ld. Counsel for the OP No.1 also placed reliance  upon the case law titled as Sonic Surgical Vs. National Insurance Company Ltd. reported in IV(2009)  CPJ (SC) page 40 in this regard. Counsel for OP No.2 argued that complainant  has admitted in para No.4 of complaint that he purchased vehicle in  question for running his business and not to earn for his livelihood and thus the complaint in hand is not maintainable under due provisions of C.P. Act since the vehicle is being used for commercial purposes which is also proved from maintenance history of vehicle i.e.  Annexure R2/A, that the vehicle in question was being plied by the complainant frequently about average 190 kilometers daily which shows that the vehicle  was having  no manufacturing defect and was being used for commercial purposes.  Counsel for OP No.3 argued  that the complainant has no locus-standi to file the present complaint against OP No.3 because OP No.3 has not sold the vehicle in question to the complainant and as such the answering OP is liable to be deleted from the array of the OPs and prayed for dismissal of complaint. 
8.    After hearing the rival contentions of  the parties and going through the record, it is an admitted fact on record that the complainant himself has stated in para No.4 of the complaint that complainant purchased the vehicle in question for running his business or for commercial purposes and not for earning livelihood by means of self employment and thus he is admittedly not a consumer as per Section 2 (1) (d) of the C.P. Act which reads as under:-
(d)     “consumer” means any person who:-
(i)     buys any goods for a consideration which has been paid or
 promised or partly paid and partly promised, or under any 
system of deferred payment and includes any user of such 
goods other than the person who buys such goods for 
consideration paid or promised or partly paid or partly 
promised, or under any sustem of deferred payment when such 
use is made with the approval of such person, but does not 
include a person who obtains such goods for resale or for any 
commercial purpose; or
(ii)     (hires or avails of) any services for a consideration which has
 been paid or promised or partly paid and partly promised, or 
under any system of deferred payment and includes any 
beneficiary of such services other than the person who (hires 
or avails of) the services for consideration paid or promised, 
or partly paid and partly promised, or under any system of 
deferred payment, when such services are availed of with the 
approval of the first mentioned person. 
(“Explanation” For the purposes of sub-clause (i), “commercial purposes” does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;)
Further, the complainant has failed to place on record any expert report wherefrom it may be concluded that the vehicle was having any manufacturing defect since the onus to prove the manufacturing defect lies upon the complainant as observed by Hon’ble National Consumer Disputes Redressal Commission New Delhi in case Classic Automobiles Vs. Lila Anand Mishra & another reported in 1 (2010) CPJ 235 (NC). Besides it, the vehicle in question was purchased by the complainant from OP No.1 at Rohtak and admittedly no  branch office or sub dealership of OP No.1 is situated   at Jind since during the pendency of the complaint, the complainant impleaded OP No.3 as a party to complaint only to circumvent the territorial jurisdiction of this Forum though the complainant has no cause of action against the OP No.3 which is clear from the contents of legal notice dated 19.12.2011 ( Ex. C-9) initially served upon OPs No.1 &2 only. So, this Forum also lacks territorial jurisdiction. 
    In view of the facts discussed above, we are of the considered view that the complainant has miserably failed to prove his case and the complainant  is also not covered  in the definition of Consumer as enshrined in the Consumer Protection Act. Accordingly, the present complaint is dismissed being devoid of merits with no order as to costs. Copies of order be sent to the parties concerned free of costs. File be consigned to record room after due compliance. 

Announced:                                                     
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