Haryana

Panchkula

CC/138/2014

RAJEEV KAPOOR. - Complainant(s)

Versus

M/S BANARSI DASS AUTOMOBILES PVT.LTD. - Opp.Party(s)

PANKAJ CHANDGOTHIA.

15 Jul 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.                  

Consumer Complaint No	:	138of 2014
Date of Institution	:	31.07.2014
Date of Decision	:	15.07.2015

Dr. Rajeev Kapoor son of Shri J.P. Kapoor, H. No. 1637, Sector-4, Panchkula.                   

                                                                                          ….Complainant

Versus

1. M/s Banarsi Dass Automobiles Pvt. Ltd., Plot No. 198, Industrial Area, Phase-II, Panchkula, through its M.D.
2. M/s Tata Motors Limited, Bombay House, Homy Hody Street Fort, Bombay-24, through its MD.
3. Swan Motors Pvt. Ltd., Near Fly Over, Industrial Area, Sonepat, through its M.D.
4. Global Administration Services Pvt. Ltd., Vatika Triangle, 5^th Floor, Sushant Lok-I, Block A, M.G. Road, Gurgaon, through its M.D.

 

                                                                         ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

Quorum:               Mr. Dharam Pal, President.

Mrs. Anita Kapoor, Member.

For the Parties:     Mr. Pankaj Chandgothia, Advocate for the complainant.

None for OP No.1.

Mr. Sanjeev Roy, Advocate for OP no. 2.

None for OP No.3.

OP No.4 already ex-parte.

ORDER

(Dharam Pal, President)

1. This complaint had been initially dismissed in default by this Forum vide order dated 14.08.2014. However, in appeal, the Hon’ble State Commission accepted the appeal. The order of this Forum set aside and the complaint is restored at its original number vide order dated 14.10.2014.
2. The complainant-Rajeev Kapoor has filed the present complaint against the OPs with the averments that the complainant’s vehicle TATA Indigo Manza car No. CH01AB 8255 Chassis No. MAT 613032ALC08316 was serviced from OP No.1 at Panchkula.  The car remained with OP no. 1 from 18.07.2012 to 31.07.2012.  The dealer changed a major part called TURBO under the extended warranty managed by OP no. 4 and recommended by OP no. 1. As per receipt (Annexure C-1) dated 31.07.2012, Rs.4,500/- was charged from the complainant.  The invoice corresponding to this service and repairing (Annexure C-2) was wrongly issued for Rs. 27,490/-.  Upon this, OP no. 1 issued a proforma dated 18.07.2012 (Annexure C-3).  After that OP no. 1 has issued another invoice (Annexure C-4) dated 07.08.2012 for the same job in which Op No.1 has deliberately made another wrong entry, which has resulted further loss to the complainant. The complainant requested the OP no. 1 to issue the correct bill as per the amount charged and also in the name of the complainant. OP no. 1 gave a separate certificate dated 31.03.2013 (Annexure C-5) stating therein that the name of Ashok Kumar Talwar was wrongly mentioned and the correct name was that of the complainant. However, the correct itemized bill showing the items charged for and not charged as per extended warranty was not issued. It is also on record i.e. Annexure C-6 that the TURBO was replaced by OP No.1 under the extended warranty scheme after approval from Op No.4 and the price of items at Sr. No.5 & 6 were not charged. The extended warranty (Annexure C-7) was a contract of insurance, which was recommended by the manufacturer, sold by the authorized TATA dealer and was operated by the OP no.4 under the supervision of the manufacturer. The coverage under the extended warranty has nothing to do with manufacturing defect. Mechanical Breakdown has been defined as the unserviceability of a covered component for a reason other than wear and tear or normal deterioration causing a sudden stoppage of its function whereas the case of the complainant was squarely covered under the policy of extended warranty. At the time of purchase on 30.03.2010, the complainant also bought the extended warranty as recommended. On 31.07.2012, the complainant got serviced and repaired the vehicle from OP No.1-dealer wherein the TURBO charger was found to be defective and replaced under the extended warranty policy after approval from Op No.4 which was also admitted by the Op No.1 and the complainant has not paid anything for the said turbo charger.    The refurbished TURBO given FOC by OP no. 1, also stands a further guarantee of six months, which means that it had guaranteed till January, 2013.  That after this service/repair/replacement, the car suffered a mechanical breakdown on 6.8.2012 and was taken to the OP no. 3. After dismantling engine, OP no. 3 found failure of turbo and failure of Oil pump and sought the approval of OP no. 4 for repairs/replacement. After that the OP no. 4 prevailed over OP no. 1 to issue another invoice dated 7.8.2012 in lieu of invoice dated 31.7.2012 with a view to make basis for rejection of the claim.  In the new invoice, one item was added at No. 6 as “STANDARD CHECKBACK COMPRESSION & BLOW BYE Refused by Customer”. Moreover, the invoice dated 07.08.2012 was not on the pre-printed page and did not bear name of the dealer and has been sent by email.  OP no. 4 wrongly rejected the claim on the basis of the wrong documentation created by OP no. 1. The wrongful rejection by OP No.4 has led to the Op No.3 refusing to repair without payment and asking for dismantlilng charges and parking charges to release the vehicle. The complainant wrote a letter to OP no. 3 calling upon it to release the vehicle without any charges as they were being wrongly demanded.  This act and conduct of the Ops amounts to deficiency in service on their part. The complainant has sought the following relief:-

“It is, therefore, respectfully prayed that the OP No.1 be directed to issue the bill dated 31.07.2012 for the correct charged amount of Rs.4,500/- only and in the correct name of the complainant.

Further, prayed that the OP No.3 be directed to release the vehicle of the complainant without insisting upon parking charges or charges of any other kind.

A sum of Rs.1,00,000/- be further awarded as compensation to the complainant for the physical and mental harassment caused to the complainant by all the Ops together.

This complaint be allowed with legal costs of Rs.20,000/-.”

3. OP no.1 appeared and filed written statement and has taken a number of preliminary objections including that the complaint is not maintainable. As earlier an complaint on the similar ground was filed before the DCDRF, Chandigarh which was dismissed by the said Forum and appeal under FAO No. 99 of 2013 was filed against the said orders which was also dismissed vide order dated 14.06.2013 and dissatisfied from the said orders an Revision Petition No. 3312 of 2013 was filed before the Hon’ble National Commission which was decided on 01.12.2014 and the relevant extract of same is reproduced here below:-

“The vehicle is lying with the OP 4 and stationed there for the last two years.  It has claimed Rs. 1,34,749/- from Ops.  The counsel for the petitioner claimed parking charges @ Rs. 18,000/- per month.  We allow those charges but the same will be recovered from OP 5.  OP 4 is directed to handover the vehicle without defect to the complainant within one month from the date of receipt of this order, otherwise, it will have to pay penalty @ Rs. 500/- per day, till compliance.”

It is submitted that the vehicle in question was purchased by complainant from Joshi Auto Zone Pvt. Ltd. Plot No. 84-85, Industrial Area, Phase-II, Chandigarh not from OP no. 1 as OP no. 1 has only serviced the vehicle in question.  It is submitted that when said vehicle came for servicing with OP no. 1, OP no. 1 issued a job card dated 31.07.2012 but due to the system error same was generated in the name of Sh. Ashok Kumar Talwar for an amount of Rs. 4,500/-. It is further submitted that when OP no. 1 noticed that by mistake the wrong name of customer had been mentioned in the said job card, OP no.1 issued a certificate dated 31.03.2013 to the effect that the vehicle in question is owned by the complainant and due to system error same was generated in the name of Sh.Ashok Kumar. It is submitted that the complainant has already driven the said vehicle for an extent of 1,31,364 KM and during that time complainant kept on plying the said vehicle and has not even bothered to get the said vehicle serviced after every 10,000/- Kms which resulted into the defect if any in the said vehicle.  It is submitted that OP no. 1 left the dealership of the OP no. 2 since 8 to 9 months earlier and even if complainant requires the fresh bill, he could get it from any of the authorized service center of Tata Motors. It is submitted that turbo charger was changed with a brand new one. Thus, there is no deficiency in service on the part of OP no. 1 and prayed for dismissal of the complaint.

4. OP no. 2 appeared and filed written statement by taking some preliminary objections and submitted that Tata Motors Ltd, a company duly incorporated under the provisions of the Companies Act, 1913 and having its registered office at Bombay House, 24, Homi Modi Street, Mumbai-400001 is the renowned manufacturer of various types of commercial vehicles and passenger cars across the world and is widely acclaimed for its class and quality. It is submitted that cars and the vehicles manufactured by the Op No.2 pass through stringent quality checks and road trials before the actual commercial production starts and the cars & vehicles are marked only after being approved by the Automotive Research Association of India (ARAI).  It is submitted that the cars and vehicles manufactured at the plant of the Op No.2 are also thoroughly inspected for control systems, quality checks and test drive before passing through factory works for dispatch to the authorized dealers appointed on a ‘principal to principal’ basis for sale of the cars and vehicles. It is submitted that the Op No.2 ably supported by the excellent dealerships/authorized service centers, having excellent workshop setup for after sles servicing of the commercial vehicles, which are manned by qualified and experienced personnel only. It is submitted that the customers of all commercial vehicles manufactured by the OP no.2 are provided services through a large network of authorized dealer and Tata Authorised Service Centre (TASC). It is submitted that the complaint of the complainant is badly time barred.  It is submitted that the complainant had purchased the vehicle in question on 30/03/2010 and instituted the present complaint in the month of September-October 2014 i.e. after more than 4½ years.  It is submitted that limitation for filing of a complaint as per provisions of Section 24A of the Consumer Protection Act is 2 years.  It is submitted that OP no. 2 provided warranty on the vehicle in question for 24 months, which had expired in the present case.  It is submitted that the complainant has opted for extended warranty, a product of United India Insurance Company. It is submitted that it was the product of UIIC and Global Administration Service is its administrative office. It is submitted that the Op No.2 could not be held liable for any independent act and/or omission, committed by the Ops No.1 and 3.  It is submitted that the Op No.1 has no privity of contract with Op No.4 and there is no relationship between OP No.2 and Op No.4. It is submitted that the instant complaint makes no ground for relief under the provisions of Section 14 of the Consumer Protection Act, 1986.  It is submitted that the complaint has been filed with ulterior motive and malafide intention to cause harassment and prejudice to the OP no. 2. It is submitted that OP no. 2 has nothing to do with the allegations of the complainant, as the relationship between OP no. 2 and OP no. 1 is on principal to principal basis. It is submitted that the vehicle in question was brought on 18.07.2012 to the workshop of OP No.1 for repairs. It is submitted that due to some system error, wrong invoice has been generated, which eas admitted by the Op no.1.  It is submitted that warranty provided by OP no. 2, had already been expired after coverage of 75000 kms i.e. between June, 2011 (69645 kms) to July, 2011 (79144 kms). It is submitted that Op No.2 has nothing to do with the business activities for Op No.4. It is submitted that as per information received, the vehicle has covered 131364 kms at that time and the complainant was advised for standard check back compression and blow bye which was refused by the complainant and accordingly the vehicle was serviced as per terms and conditions of Op No.4.It is submitted that if Op No.4 rejected the extended warranty, then OP No.3 is entitled to recover the repair charges from the complainant. Thus there is no deficiency in service on the part of OP no. 2 and prayed for dismissal of the complaint.
5. OP no. 3 appeared and filed written statement by taking some preliminary objections and submitted that the OP No.3 was duly constituted under the Companies Act, 1956 and an authorized dealer of Tata Motors and having its showroom at Rohtak Road, Near Railway Flyover and having its registered office under the name and style of M/s Swan Motors Pvt. Ltd. It is submitted that in first week of August, 2012, alleged vehicle of complainant brought to the workshop of OP no. 3 who inspected the vehicle and made the estimate for repair expenses of Rs. 1,34,749/0.  It is submitted that the vehicle of the complainant covered under the extended warranty and OP no. 3 sent the proposal for approval of repair of the said vehicle under extended warranty.  It is submitted that OP no. 4 sent the reply email dated 07.08.2012 whereby rejected to cover the said repair under warranty. In pursuance to the rejection letter dated 07.08.2012, the OP No.3 was not bound to repair the vehicle under the extended warranty. It is submitted that the complainant sought relief against the Op No.3 only pertains to release the vehicle of complainant without instating upon the parking charges or charges of any other kind. It is submitted that complainant has never purchased the vehicle from OP no. 3 and also not taken any extended warranty from them. It is submitted that no repair work has done by the Op No.3 as complainant has refused to repair his vehicle by making payment. It is submitted that the vehicle standing in the workshop of Op No.3 without any repair. It is submitted that the Op No.3 has also sent a letter dated 08.10.2012 whereby requested to the complainant to take his vehicle back. Thus there is no deficiency in service on the part of OP no. 3 and prayed for dismissal of the complaint.
6. Notice was issued to OP no. 4 through registered post but none has appeared on behalf of OP no. 4.  It is deemed to be served and the OP no. 4 was proceeded against exparte vide order dated 12.02.2015.   
7. Counsel for complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-9 and closed the evidence. On the other hand, counsel for OP no. 1 has tendered into evidence by way of affidavit Annexure R1/A alongwith documents Annexure R1/1 to Annexure R1/3 and closed the evidence.  Counsel for OP no. 2 has tendered into evidence by way of affidavit Annexure R2/A alongwith document Annexure R2/1 and closed the evidence.
8. In their written statement, the Op No.1 has taken a number of preliminary objections including that the complaint is not maintainable before this Forum as the complainant has concealed the true and material facts from this Forum and complaint deserves to be dismissed on this score only. Before determining any deficiency in service, we deem it proper to deal with the objections taken by the Op No.1 to the effect that the complaint is not maintainable before this Forum. From the perusal of the file, it reveals that the complainant has filed a complaint No.621/2012 on 26.09.2012 before the District Consumer Disputes Redressal Forum, Chandigarh. In his complaint, he also raised the issue in para 10 of the complaint regarding issuance of invoice dated 31.07.2012 and 07.08.2012 with wrong name of the customer i.e. Ashok Kumar. The complainant has also prayed for before the learned District Consumer Forum, U.T., Chandigarh that the letter dated 07.08.2012 and letter dated 17.09.2012 be set aside and the Ops be directed to get the vehicle of the complainant i.e. CH01AB8255 repaired without any costs as per the promises given under the extended warranty period. The abovesaid complaint of the complainant was dismissed by the learned District Forum, Chandigarh vide order dated 01.02.2013. Against the abovesaid order, the complainant has filed appeal before the Hon’ble State Commission, U.T., Chandigarh which was also dismissed on 14.06.2013. The complainant filed the revision petition No.3312 of 2013 before the Hon’ble National Commission and the Hon’ble National Commission passed the following order:-

“The vehicle is lying with the OP 4 and stationed there for the last two years.  It has claimed Rs. 1,34,749/- from Ops.  The counsel for the petitioner claimed parking charges @ Rs. 18,000/- per month.  We allow those charges but the same will be recovered from OP 5.  OP 4 is directed to handover the vehicle without defect to the complainant within one month from the date of receipt of this order, otherwise, it will have to pay penalty @ Rs. 500/- per day, till compliance.”

9. We find merit in the objections of the Op No.1. Admittedly, the complainant has not mentioned about the filing of the complaint before the Hon’ble District Consumer Disputes Redressal Forum, Chandigarh, subsequent appeal and revision petition in their complaint. He has also concealed from this Forum the order passed by the Hon’ble National Commission dated 01.12.2014 and in the present complaint, he claimed that the Op No.1 be directed to issue the bill dated 31.07.2012 for the correct charged amount of Rs.4,500/- only and in the correct name of the complainant and further prayed that OP No.3 be directed to release the vehicle of the complainant without insisting upon parking charges or charges of any other kind whereas the Hon’ble National Commission vide order dated 01.12.2014 has already granted the relief to the complainant.
10. We legitimately place reliance on the judgment dated 04.02.2013 passed by the Hon’ble National Commission in revision petition No.3092 of 2012 titled as S. Girija Selvaraj versus The Proprietor wherein it has been held as under:-

“It is well settled that any party who seeks an equitable relief must approach the judicial Forum with clean hands and should not conceal the material facts. Hon’ble Supreme Court in Faquir Chand Gulati Vs. M/s Uppal Agencies P. Ltd. & Anr. Special Leave Petition (c) No.18225-18226 of 2011 dated 14.08.2011 observed;

“From what we have stated above, it is clear that the petitioner has not approached the Court with clean hands. Therefore, he is not entitled to be heard on the merits of his grievance. Reference in this connection can usefully be made to the judgment of this Court in Dalip Singh Vs. State of U.P. (2010) 2 SCC 114, the first two paragraphs of which are extracted below;

“1.    For many centuries Indian Society cherished two basic values of life i.e. “satya” (truth) and “Ahinsa” (non-violence) Mahavir, Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-independence era and the people use to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppressions of facts in the court proceedings.

2.       In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed to not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final”.

11. Consumer Protection Act is a beneficial price of legislation brought about to provide quicker redressal of grievances to the consumers who are wronged at the hands of the business people. At the same time, it is incumbent upon those seeking redressal from the District Consumer Forum to disclose all the relevant facts. The concealment of an earlier litigation is, by itself, an adequate foundation to non-suit the complainant. We depreciate the endeavour made by the complainant to abuse the process of law. The complaint of the complainant is dismissed, leaving the parties to bear their own costs.
12. A copy of this order be sent to the parties free of costs and file be consigned to record room after due compliance.

 

 

Announced

15.07.2015                           ANITA KAPOOR                             DHARAM PAL

                                                MEMBER                                          PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

                             

                                                                        DHARAM PAL

                                                                        PRESIDENT