DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 2 of 2015
Date of institution: 01.01.2015 Date of decision : 19.01.2017
Arunjit Singh son of Inderjit Singh resident of village Khairpur, Tehsil Kharar, District Mohali.
……..Complainant
Versus
1. M/s. Escorts Construction, Equipments Ltd., SCO No.198-200, 2nd Floor, Sector 34-A, Chandigarh through its Manager.
2. Shri Ram Equipments Finance Co. Ltd., 101-102, Phase-2, SAS Nagar (Mohali) through its Manager.
………. Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President
Shri Amrinder Singh Sidhu, Member.
Present: Shri M.S. Dhindsa, counsel for the complainant.
Ms. Geeta Gulati, counsel for OP No.1.
Shri Karun Kumar, counsel for OP No.2.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Arunjit Singh has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
The complainant had purchased Back Hoe Loader Machine from OP No.1 on 27.08.2012 by getting it financed from OP No.2. However, OP No.1 at the time of delivery of the machine had not handed over the original bills and Form No.20 i.e. sale letter form which is essential for registration of the machine with the transport authorities. The complainant has been requesting the OPs to issue him the aforesaid documents to enable him to get the machine registered with the transport department but due to non supply of the requisite documents, the complainant is suffering financial loss as well as mental agony and harassment. Hence the complaint for giving directions to the OPs to deliver him the requisite documents in original; to pay him Rs.20,000/- each for harassment and damages.
2. The OP No.1 has pleaded that it has now been merged with Escorts Limited vide orders of the Hon’ble Punjab and Haryana High Court dated 09.08.2012 and is having its registered office at Panchkula. OP No.1 is a leading manufacturer and supplier of road, construction and material equipments in India and abroad. The machines are manufactured by a highly skilled work force and these are delivered only after conducting pre-delivery inspection. OP No.1 has taken the preliminary objections that the complainant is not a consumer as he is using the machine for commercial activity. The complainant had paid margin money of Rs.2,90,000/- to the OP No.1 and rest of the amount i.e. Rs.15,80,000/- was financed by OP No.2. All the original documents of the machine were forwarded to OP No.2. The copy of tax invoice and other sales related documents were handed over to the complainant and the original were with OP No.1 under prior intimation to the complainant. The present complaint has been filed to take undue advantage of his own wrongs. On merits, the OP No.1 has pleaded that the machine was hypothecated with OP No.2. The complainant was given duplicate copies of the documents and the original were given to OP No.2 with whom the vehicle has been hypothecated. Denying any deficiency in service on its part, OP No.1 has sought dismissal of the complaint.
3. OP No.2 in the preliminary objections of its written statement has pleaded that the complaint is not maintainable against OP No.2 as no cause of action has arisen against it. This Forum does not have the territorial jurisdiction to entertain and try the complaint as the machine was purchased from OP No.1 and delivery was given to the complainant directly through transporter. The complaint is also barred by limitation as it has been filed after 2½ years of purchase of machine. The complainant is also not a consumer as the machine has been purchased and is being used for commercial purpose. Denying any deficiency in service on its part, OP No.2 has sought dismissal of the complaint against it.
4. Evidence of the complainant consists of his affidavit Ex.CW-1/1; copies of bill dated 06.09.2012 Ex.C-1; margin money receipt dated 27.08.2012 Ex.C-2; order form Ex.C-3; loan letter Ex.C-4; packing list Ex.C-5; declaration dated 30.08.2012 Ex.C-6; tax invoice Ex.C-7; transportation receipt Ex.C-8; tax invoice Ex.C-9 and legal notice Ex.C-10 In rebuttal, OP No.1 tendered in evidence affidavit of Manish Sharma, its Assistant Manager Ex.OP-1/1; authorization letter Ex.OP-1 and authority letter Ex.OP-2. Evidence of OP No.2 consists of affidavit of Rohit Varun Singh Thakur, its Sr. Executive Legal Ex.OP-2/1; copies of tax invoice Ex.OP-2/2; statement of accounts Ex.OP-2/3; letters dated 04.10.2014 and 04.03.2015 alongwith postal receipt Ex.OP-2/4 and scanned copy of power of attorney Ex.OP-2/6.
5. Learned counsel for the complainant has argued that the OPs have committed deficiency in service by not providing the original documents of the machine in question. He has stated that at the time of the delivery of the said vehicle on 27/08/2012 Ex.C-1 the agent/transporter of the OP no.1 had only provided copies of the documents. Learned counsel pleaded that due to non-supply of the requisite documents for registration of the machine, complainant was not able to utilize the said machine, which resulted in loss and due the said act of OP No.1 the complainant was not able to timely pay the installments of the loan taken on the said machine.
6. On the other hand, the learned counsel for the OP No.1 at the very outset submitted that the preliminary objections taken in the written version submitted by the Op no.1 be decided before proceeding to adjudicate upon the merits of the case in hand. She pleaded that complainant had purchased Back Hoe Loader machine and the said machine is only used for commercial purpose. Learned counsel further pleaded that complainant in his entire pleadings and evidence has no where stated or placed on record any document that proves that complainant had only purchased the said machine for the sole purpose of earning his livelihood. She argued that complainant is not a consumer in view of Section 2(d) of the Act. Learned counsel place reliance on the decision of Hon’ble Apex Court in case titled as Birla Technologies Ltd. vs. Neutral Glass and Allied Industries Ltd. in civil appeal No.10650 of 2010 (arising out of SLP (C) No.9526 of 2010).
7. Learned counsel for OP No.2 also submitted that his preliminary objections be also decided before adjudication upon the matter on merits. He stated that the present complainant is barred by limitation as the present complaint has been filed after a period of 2 ½ years. Learned counsel argued that complainant in his pleadings and sworn affidavit Ex.CW-1/1 has not mentioned any specific date as to when cause of action arose to the complainant to file the present complainant. Learned counsel also argued that legal notice Ex.C-10 referred to does not bear any date nor any postal receipt had been placed on record to establish, as to when the said notice was served. He further pleaded that present complaint has become infructuous as the matter had already been decided by the learned Arbitrator vide award dated 15/06/2015 and receiver had also been appointed for the said machine. This fact is in the knowledge of the complainant. Hence the same is liable to be dismissed qua OP no.2.
8. After hearing the ld. Counsel for the parties and going through the pleadings, evidence, written submissions as well as oral submissions, we find force in the submissions made by learned counsel for the OPs. It is an admitted fact that the complainant had received the said machine in the year 2012 Ex.C-1. After perusal of complainant and the affidavit Ex.CW1/1 it is also established that complainant had no where stated that he was using the said machine for the sole purpose of earning livelihood and that he had not further given it on hire. The legal notice Ex.C-10 issued does not bear any date nor any postal receipt has been enclosed with it. We have further observed that complainant has mentioned in para no.7 of the affidavit Ex.CW1/1 that he had withdrawn the complaint from the learned District Forum, Rupnagar but no order of the Forum had been placed on record, in order to determine the limitation. It has come to our notice that Hon’ble National Commission, in case titled as Harbhajan Sharma Versus Haryana Urban Development Authority & Anr, I (2015) CPJ 672(NC) has observed in Para no. 6 that “Mere writing of letters to respondent authority and waiting for unduly long time would not extend period of limitation, District Fora wrongly treated cause of action as continuous one. Complaint, prima facie barred by limitation.”
9. Accordingly, in view of our aforesaid discussion and the case laws citied, we find that the complainant is not a consumer in view of Section 2(d) of the Act as he has failed to establish that the machine was being used for the purpose of earning livelihood. Moreover the complainant has failed to place on record any such material which can rebut the contentions of the learned counsels for the OPs. Thus we do not deem it appropriate to adjudicate upon the present complaint on merits. Hence the present complaint is hereby dismissed.
The arguments on the complaint were heard on 17.01.2017 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 19.01.2017
(A.P.S.Rajput)
President
(Amrinder Singh Sidhu)
Member
