DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[1]       Munish Joshi, Prop. M/s The Ontime Express Courier and Cargo Services, SCO No. 96-97, Cabin No. 4, Sector 34-A, Chandigarh.

[2]   M/s The Ontime Express Courier and Cargo Services, SCO No. 96-97, Cabin No. 4, Sector 34-A, Chandigarh, through its Proprietor Sh. Munish Joshi.

                                                 ---Complainants.

V E R S U S

[1]   M/s CMPL Motors (P) Limited, 52, Indl. Area, Phase-I, Chandigarh.

[2]   M/s PIAGGIO Vehicles Pvt. Limited, SCO No. 2907-2908, Sector 22-C, Chandigarh, through its Manager.

[3]   M/s PIAGGIO Vehicles Pvt. Limited, 102, Phoenix Bond Garden Road, Puna.

---Opposite Parties.

BEFORE:          SH. LAKHMAN SHARMA               PRESIDENT

MRS.MADHU MUTNEJA             MEMBER

                    SH.JASWINDER SINGH SIDHU          MEMBER

Argued By:  Sh. S.S. Bains, Advocate for the Complainant.

                                Sh. Arun Dogra, Advocate for the Opposite Party No.1.

                                Sh. Vivek Sethi, Advocate for the Opposite Parties No.2 & 3.

PER JASWINDER SINGH SIDHU, MEMBER

1]           Complainants have filed the present complaint against the Opposite Parties, on the grounds that the Complainants purchased one APE Truck Mark-I-HI Body bearing Engine No. EE08E9047393 Chassis No. NBKS 545935 from Opposite Party No.1 on 30-6-2008 who is the Authorised Dealer of Opposite Parties No.2 & 3. The Complainants purchased the said vehicle on the assurance that the said Truck can be got passed for full body from the Secretary, State Transport, U.T. Chandigarh and on the said assurance of the Opposite Parties the Complainants purchased the said vehicle in order to run his Courier and Cargo Services and the said vehicle was to be used as carrier for the same purchase. On purchase Opposite Party No.1 issued Temporary Registration No.CH-19(T)-1055 dated 30-06-2008. The copy of the same is attached herewith as Annexure C-1. The vehicle was got insured by paying Rs.8315/- by the Complainants vide Cover Note of the Insurance Company annexed as Annexure C-2. A performa invoice was issued by Opposite Party No.1 dated 3-7-2008 for Rs.2,42,500/-. A copy of the same is annexed as Annexure C-3. The Complainants accordingly paid a sum of Rs.50,815/- to Opposite Party No.1 vide Receipt dated 3-7-2008 annexed as Annexure C-4 and the Vehicle was got financed from IndusInd Bank, Phase 3-B2 Mohali Branch for a sum of Rs.1,89,185/-. This amount was directly paid by the Bank to Opposite Party No.1 by account payee Cheque No. 960060 dated 10-7-2008 and as such, an entire amount of consideration for the purchase of said Vehicle has been paid by the Complainants to Opposite Party No.1. Since then the Complainants have been regularly paying the monthly installments of Rs.5720/- against the said loan, till December, 2009.

              The Complainants approached the DTDC Courier & Cargo Limited regarding deployment of said APE Truck to be deployed for Chandigarh to Parwanoo route and an agreement was reached for a consolidated amount of Rs.19,800/- per month. Copy of the Acceptance Letter by DTDC Courier is attached at Annexure C-6.

              The Complainants have alleged that while selling the vehicle on 30-6-2008 the Opposite Parties were yet to obtain the requisite certificate of its test and approval from A.R.A.I. Pune in accordance with latest Central Motor Vehicle Rules. As such the Opposite Parties did not have the requisite approval of State Transport Authority, U.T. Chandigarh for registration of the vehicle in the State of U.T. Chandigarh.

              It is also alleged by the Complainants that the Opposite Parties has not issued any Sale Certificate/ Sale Letter, Service Book and Form No. 22 required for full body passing of the said Vehicle, despite repeated visits and written requests dated 18-9-2008, 23-12-2008 & 25-3-2009 which are annexed at Annexure C-8 to C-10. The Complainants also served a legal notice through a registered A.D. letter dated 1-10-2009 called upon the Opposite Parties to issue Sale Letter and other relevant documents for full body passing of the vehicle in question and also pay compensation on account of non-use of vehicle since all these days as it has remained stranded on account of this issue alone. Copy of the same is annexed as Annexure C-12 and on refusal the same was returned back un-received on 6-10-2009. Copy of the same is annexed at Annexure C-13. Thus, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties the Complainants seek direction of this Forum:-

[1] To replace the said vehicle with a new one and also to issue the Sale Certificate, Service Book and Form No. 22 of the vehicle in question;

[2] To pay a compensation of Rs.10.00 lacs on account unfair trade practice and deficiency in service and it also includes the depreciation in value of the Vehicle in question as well as the loss of Business that it may have generated since its purchase;

2]           On notice, Opposite Party No.1 has filed it reply/ version contesting the claim of the Complainants and has taken preliminary objections to the fact that the Complainant has not come to the forum with clean hands and has distorted facts to mislead the process of law and has turned present complaint as false, frivolous, incomplete and a bundle of distorted facts. At the same time in para 4 of preliminary objections the Opposite Party No.1 has categorically stated that the Complainant does not fall in the category of consumer as defined in Section 2(d)(1) of Consumer Protection Act, 1986, and hence, the present complaint be dismissed on this ground alone.

              On merits, Opposite Party No.1 has filed its para wise reply to all the averments of the present complaint stating that that the Complainant purchased one APE Truck Mark-I HI-I Body from the answering Opposite Party on 30.6.2008 and specifically denied that it was a high body variant of model APE Truck Mark-I and has further denied that any assurance was given by the Opposite Party that the truck can be got passed for full body. The copy of invoice is attached at Ann.R-1. The Opposite Party No.1 has once again contested the fact of the Complainant falling under the category of consumer in para 7 of merits and has prayed for the dismissal of the complaint on this score alone. A set of documents marked Annexure R-1 to R-3 were placed on record.

3]           Opposite Parties No. 2 & 3 too have taken preliminary objections with regard to the present complaint being false, frivolous and incomplete and bereft of any force. Further more, it is contested that the Complainant does not fall in the category of consumer as defined in Section 2 (d)(1) of Consumer Protection Act, 1986 and the same is specifically mentioned in para 3 of the written statement.

              On merits, Opposite Parties No. 2 & 3 have admitted the sale of the vehicle and are categorical in stating that the models purchased by the Complainants was a high body variant of model APE Truck Mark-I and further denied that any assurance was given by the Opposite Parties No. 2 & 3 that the truck can be got passed for full body. While contesting the claim of the Complainant, on merits, it is further again specifically denied that the Complainant does not fall in the category of consumer as the vehicle in question has been purchased in furtherance of his business interest and was to be used as a commercial vehicle.      

3]           Parties led their respective evidences.

4]           Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the ld. Counsel for the parties, we have come to the following conclusions.

5]           It is important to deal with the basic allegation as raised by the Opposite Parties in their version/ written statements that the Complainants do not fall into the category of consumer as specified in the Consumer Protection Act, 1986. We feel that it is important to thrash  this issue before moving any further. We have minutely gone through the present complaint and it is important to reproduce the para 1 (Page 2) of the present complaint wherein it is mentioned “………….Complainant purchased the said vehicle to run his courier & cargo services and the said vehicle was to be used as a carrier for the said purpose”. Though, it is very much clear, that the Complainant Munish Joshi claims himself to be the Prop. of the Ontime Express Courier & Cargo Services, which is in itself is an independent entity which becomes clear from the fact that the company as such is also the Complainant as it is mentioned at No.2 in the arena of parties. At the same time the document tendered by the Complainant as Annex.C-6 (Page 22) which is a Certificate of DTDC Courier and Cargo Limited with whom the Complainant had entered into an agreement to run the said vehicle on Chandigarh Parwanoo route for a consideration of Rs.19,800/- p.m. also makes it clear that the vehicle was to be used for the furtherance of the business interest of the company “Ontime Express Courier and Cargo Services” of which the Complainant No.1 Manish Joshi is the Proprietor.  Hence, the objections raised by the Opposite Parties are found to be true.  As there is no specific averment in the complaint that the Complainant was running the said business for the sole purpose of earning his livelihood by means of self-employment, hence we find it difficult to move any further as the Complainant has failed to satisfy  about being a “consumer” as per the Consumer Protection Act, 1986  and as such the present complaint deserves to be dismissed on this score alone. Hence, the present complaint is dismissed without costs. However, the Complainant is at liberty to visit the appropriate court to get his grievances redressed as per law.  

6]           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

10^th January, 2012.                                                                   

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER