District Consumer Disputes RedressalCommission ,Faridabad.
Consumer Complaint No.59/2022.
Date of Institution: 28.01.2022.
Date of Order: 09.01.2023.
Laxman S/o Sukhan R/o House No. 547, Maktuy Patti Mohalla, Tigaon (95), Faridabad, Haryana - 121101 Aadhar No. 8387 3302 4987) Mobile No. 9313201432
Versus
1. M/s Prime Automobiles Pvt. Ltd. Opposite YMCA College Delhi Agra Highway, Mathura Road,Faridabad, Haryana - 121006 Through its Director/MD/Principal Officer/Authorized Person.
2. M/s Mahindra & Mahindra Ltd. Gateway Building, Apollo Bunder,Mumbai, Maharashtra - 400001 Through its MD/Director.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: AmitArora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. B.C.Gupta, counsel for the complainant.
Sh. Vipin Kumar and Sh. Rajiv Rana, counsel for opposite party No.1.
Sh. PradeepAwasthi, counsel for opposite party No.2.
ORDER:
The facts in brief of the complaint are that the complainant purchased a New Vehicle Mahindra Supro Mini Truck VX WD bearing its Registration No. HR-38- AB-4676, Chassis No. MA1FN2XPRL6J60874, Engine No.XPL6J22215 Model 2020 from the respondent No.1 for a total sale consideration of approx. Rs. 6,00,000/- in the year 2020. At the time of purchasing the said vehicle the respondents gave the guarantee & Warranty for minimum period of two years. The respondent No.2 was the manufacturer and the respondent No.1 was the authorized dealer, agent & seller of the respondent No. 2 Company. At the time of purchasing the said vehicle the respondents had assured the complainant that if any manufacturing defect or otherwise any defect will be found in the said vehicle then they would replace the said defective spare part of the said vehicle with another one free of costs. The said vehicle was taken by the complainant to earn his livelihood. The said vehicle was purchased for the Commercial purpose and the registration of the vehicle in question is also commercial and being the commercial vehicle the complainant is paying Road Tax, Goods Tax etc. The complainant got done services of the said vehicle from the respondents from time to time as per theirdirections. It was matter of surprise that after purchase the said vehicle there comes certain defects in the vehicle which was shown to the authorized centre i.e. respondent no. 1 and after many days it was cured and vehicle delivery was given to the complainant. Thereafter, again comes manufacturing defects etc. in the vehicle for which the vehicle was taken to the service centre by tochan with other vehicle. The employer of the Respondent No. 1 company failed to remove the fault in the vehicle and the vehicle stand their respondent no. 1 company for a period of approx. 20-25 days. The respondents deliberately, knowing, intentionally given the second hand sub-standard, defective vehicle to the complainant just to grab the hard earned money of the complainant. The said vehicle started to create some problems / faults due to manufacturing defects and being harassed/depressed the complainant again carry the vehicle in question to the respondent no. 1 and on 29.12.2021 the said vehicle was left at the service centre of respondent no. 1 company for removing the defects in it. "Whenever the complainant used to the vehicle running time automatic off and the engine start and vehicle over race silencer side oil etc." The complainant contacted to the respondent No.1 and requested him to check up the said vehicle and to remove the defect of the said vehicle and the respondent no. I assured to deliver the vehicle on 31.01.2021 to the complainant but the respondent no. 1 failed to deliver the said vehicle and asked to the complainant that the defective parts were not available in the company and we were trying to get the parts from somewhere, as and when the parts would be available, the respondent no. 1 would informed accordingly hence, the delivery of the vehicle would not be given to the complainant as on date. The respondent no. 1 illegall and unlawfully charged a huge amount from the complainant on the various occasions. Once the respondent no. I stated to the complainant that there were engine fault alongwith clutch plate defects and the respondent no. 1 charge Rs. 9,735/- from the complainant on account of clutch plate replacement whereas the vehicle was under guarantee accordingly the respondent no. 1 should not be charged even a single penny from the complainant. But the respondent No.1 did not remove the said manufacturing defect from the said vehicle. The complainant found that the same problem was existing in the said vehicle. After a week's time when the complainant asked the respondent no. I about his vehicle but the respondent no. 1 had not been able to give satisfactory reply to the complainant instead of giving satisfactory reply, the employees of respondent no. 1 misbehave and used the filthy language with the complainant. The complainant requested the respondents several times to deliver the said vehicle but they failed to remove the fault and to deliver the vehicle. It was worthwhile mentioning here that many other persons like me were suffering the likewise problems, they also stated that these type of vehicle were not success on the road meaning thereby the vehicle in question are totally failed and not able to run on the road. The respondents were liable to refund the amount taken by them from the complainant or to replace the said vehicle with a good quality / successful new one vehicle with all expenses likewise Insurance, Registration, Road Tax etc. but the respondents refused to accept the legitimate requests of the complainant. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) replace the defective Vehicle MAHINDRA SUPRO MINITRUCK VX WD bearing its Registration No. HR-38-AB-4676 with new one good quality Mini Truck or to refund/repay the sale consideration amount approx. Rs. 6,00,000/- alongwith interest @ 24% per annum from the date of purchasing the said vehicle, to the complainant jointly or severally.
(b) refund the all charges which were taken by the respondent no. 1 from the complainant on account of repair and maintenance of the said vehicle illegally during the Guarantee period of the said vehicle.
(c) Pass an order directing the respondents to pay damages@Rs. 10,000/- per day on account of business loss to thecomplainant forth with.
d) payRs. 1,00,000/- as compensation for causing mental agony and harassment .
e) payRs. 22,000 /-as litigation expenses.
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that the complainant was using the vehicle Mahindra Supro Mini Tuck VXWD bearing its Registration No. HR-38AD-4676, Chassis No.MAIFN2XPRL6J60874, Engine No.XP1.6322215 for commercial/business purpose. The complainant had got no lacus standi to file the present complaint. The complainant had not approached this Hon'ble Forum with clean hands and had concealed the true and material facts from this Hon'ble Forum with a view to cause wrongful gain to himself and wrongful loss to the answering respondent. The complainant brought the vehicle in question for the Schedule service (1 Free Service) on 09.08.2021 vide Repair order no. RO22A003871 and the vehicle was delivered to the full satisfaction of the complainant vide Bill dated 10.08.2021, 30.09.2021 R.O. No. RO22A005538 and again brought on 26.10.2021 vide repair order No. RO22A8006423 for running repair and the vehicle was delivered to the complainant vide Bill dated 27.10.2021 with full satisfaction of the complainant, as the vehicle towards running in good condition from the dates of its purchase. Thereafter the complainant brought the vehicle in the workshop of the answering respondent on 29.12.2021 running with21514KM and the vehicle in question was repaired and service under warranty as requested by the complainant vide repair order no. RO22A008647 dated 01.01.2022 and the vehicle was ready for delivery bt the complainant did not take the delivery of the vehicle in question and avoided it on one pretext or the other. The answering respondent written various emails dated 03.02.2022, 18.02.2022 and again reminder on 18.02.2022 and the officials of the answering respondent no.I called upon on mobile no. 9313201432 of the complainant various times but there was no response. Thereafter the answering respondent issued a request letter dated 18.02.2022 at the given address of the complainant and requested him to take the delivery of the said vehicle which wass ready four delivery since the date of 03.02.2022 i.e. in deliverable condition for the last 15 days without any payment as the vehicle was serviced and repaired under warranty on or before 28.02.2022 to avoid parking charges at Rs. 350/- per day. It was that the vehicle in question had been fully repaired and serviced under warranty on payment of Rs. 0 amount to the full satisfaction of complainant but it was the complainant, who was not taking the delivery of the vehicle and filed the present false and frivolous complaint on the basis of distorted facts without any reason and rhyme. Opposite party No. 1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.2 refuted claim of the complainant and submitted that the Complainant was not a consumer within the meaning of the term Consumer as defined under section 2 (7) of the Consumer Protection Act, 2019. It is submitted that the vehicle in question was a commercial vehicle and had been used for commercial activities in order to generate profit and has covered approx. 21,514 km within a mere span of approx. 13 months, the extensive usage of the vehicle in question itself establishes that this is not normal personal usage. Thus it would be evident that the said vehicle had been extensively used by the Complainant for commercial activities and as such the Complainant cannot claim the status of a 'Consumer under the Consumer Protection Act and is not entitled for any relief from this Hon'ble Commission.The Complainant had failed to produce any documentary proof along with the complaint to prove that the vehicle in question was being used for his livelihood. In this respect, this Opposite Party relies on the judgement reported in Cheema Engineering Services vs. Rajan Singh (1997) 1 SCC 131 wherein the Hon'ble Supreme Court held that the burden to prove the machine is being used exclusively by himself and the members of hisfamily or whether he employed any workmen or if so, how many, are matters of evidence. Hence, the complaint was fit to be dismissed for non- disclosure of evidentiary proof for being a 'consumer'.The Hon'ble Supreme Court of India, in the case of Laxmi Engineering Works vs. PSG Industries Institute (1995 II CPJ I (SC)] held that, if any person has obtained goods for commercial purpose with a view to using the said goods for carrying on any activity of profit, other than exclusively for self-employment, such person is excluded from the purview of the Consumer Protection Act. It was submitted that the vehicle, purchased by the Complainant, was a well- established product in the market and over a period of years, the consumers were using the product and the complainant had taken delivery of the vehicle, after being satisfied with the condition of the vehicle and its performance. It was submitted that the said vehicle was delivered after carrying out of Pre-Delivery Inspection (in short, PDI) by the dealer. In this regard, it was pertinent to state that all cars and vehicles manufactured by this Opposite Party were marketed only after theprototype of the car/vehicle were being approved by the Automotive Research Association of India (in) short, ARAI). All the vehicles manufactured in the plant of this Opposite Party were put through stringent control systems, quality checks and test drives by the Quality Assurance Department before being cleared for despatch to the market. It was submitted that each and every vehicle manufactured at the factory of this Opposite Party, has to undergo stages of chassis frame drop, frame inversion, engine drop, cab/cowl drop and final inspection and vehicle roll out, when the quality inspectors at the respective stage checks the history card and inspects to confirm all aggregate and chassis fitments between the earlier stage and subsequent stage are properly made and to record, in the event of any shortcoming, in the history card. After rolling out, each vehicle is further subjected to various tests, viz. electrical adjustments, dynamometer, brake test, under pit test, performance test before it is dispatched to market. Further, it was stated that after being dispatched to the authorized dealers of the Opposite Party, the respective dealers are required to carry out Pre-Delivery Inspection (PDI) of all new vehicles before selling it to customers as per the standard check-list. Further, whenever any vehicle reports to a workshop for scheduled services or for any repairs, the complaints/grievances of the customer were in the job card, which do not imply admission of any defects in the vehicle, but a mere representation of the customer's grievances on the said vehicle. Thereafter standard checks were carried out at the workshop and observation is recorded by the Service Advisor on the backside of the job-card. It helps the concerned workshop to provide necessary consultancy/advise regarding the condition of the vehicle to the customer. The vehicle is checked at the workshop by the Quality Inspector (Q.L.) and by Cotek (Technical Co-ordinator) during pre and post repairs to ensure quality workmanship. The Service Advisor of the workshop who interfaces with the customer, is adequately trained to provide proper job explanation of the works carried out and even provides test drive to the customer at the time of delivery of the vehicle after every service/repairs to the entire satisfaction of the customer. The vehicle as attended by this Opposite Party's dealers/service points fully comply with the warranties, assurances and specifications, provided for it by the manufacturer, regarding quality and performance of the vehicle. The Complainant has filed this baseless complaint alleging manufacturing problems in the car without having produced any expert opinion in the form of evidence from a notified laboratory to prove that the subject car suffers from the problems as alleged, or to establish any manufacturing defect in the car in question. It was humbly submitted that the Complainant had purchased the subject vehicle 'Mahindra Supro Minitruck on or around 24.11.2020 from this Opposite Party's dealership and the said vehicle in question till 01.01.2022 had covered around 21,514 km, and it manifests that the vehicle in question within a period of 13 months, had covered more than 1655 km (approx.) per month. The above said fact proves that the subject vehicle was in absolute roadworthy condition and that the jobs carried out on the vehicle in question were minor and running repairs which were required to be carried out due to regular, continuous, extensive and faulty usage of the said vehicle. This Opposite Party had been prompt and swift to attend to the alleged grievances reported by the Complainant under the warranty as and when reported. Therefore, the prayers as made by the Complainant for replacement of the vehicle or refund of the price of the said vehicle are untenable and unsustainable. Opposite party No. 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties–M/s. Prime automobiles Pvt. Ltd. & anr. with the prayer to:a) replace the defective Vehicle MAHINDRA SUPRO MINITRUCK VX WD bearing its Registration No. HR-38-AB-4676 with new one good quality Mini Truck or to refund/repay the sale consideration amount approx. Rs. 6,00,000/- alongwith interest @ 24% per annum from the date of purchasing the said vehicle, to the complainant jointly or severally.(b) refund the all charges which were taken by the respondent no. 1 from the complainant on account of repair and maintenance of the said vehicle illegally during the Guarantee period of the said vehicle.(c) Pass an order directing the respondents to pay damages@ Rs. 10,000/- per day on account of business loss to the complainant forth with. d) pay Rs. 1,00,000/- as compensation for causing mental agony and harassment. e ) pay Rs. 22,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Laxman, Ex.c-1 – RC,, Ex.c-2 - Annexure –I, Ex.C-3 – RO Pre-Invoice,, Ex.C-4 – insurance policy,, ex.C-5 – Adhaar card, Ex.C-6 - RO Bill-Tax Invoice,, ex.c-7 RO Bill-Tax Invoice dated 27.10.2021, Ex.C-8 –Risk Assumption letter dated 03.11.2021.
On the other hand counsel for the opposite party No.1 strongly
agitated and opposed. As per the evidence of the opposite party No.1 Ex.RW1/a – affidavit of Rahul Sharma, Authorized Representative of M/s. prime Automobile Pvt. Ltd., Faridabad , Ex.r-1 – letter dated 18.02.2022 regarding request for take vehicle delivery- registration No. HR38AB4676, SUPRO-MT, Ex.R-2 – email, Ex.r-3 – vehicle history.
As per the evidence led by opposite party No.2 Ex.RW2/A – affidavit of Arunangshu Roy, Regional sales Manager of Mahindra & Mahindra ltd. Automotive Sector having its office at 5th floor discover tower A-17, sector-62, Noida, District Autam Buddha Nagar, Uttar Pradesh, ex.RW2/1 – standard warranty,, Ex.RW2/2 – Manual repair Order form,, Ex.RW2/3 – Repair order, Ex.RW2/4 – RO Bill – Tax Invoice, Ex.RW2/5 – Vehicle History, ex.RW2/6 – vehicle history, Ex.RW2/7 –not readable,, Ex.RW2/8 Excessive fuel consumption and vehicle over race,
7. In this complaint, the complaint was filed by the complainant with the prayer to replace the defective Vehicle bearing its Registration No. HR-38-AB-4676 with new one good quality Mini Truck or to refund/repay the sale consideration amount approx. Rs. 6,00,000/- alongwith interest @ 24% per annum from the date of purchasing the said vehicle.
8. After going through the evidence led by the complainant, no doubt the complainant visited the opposite party NO.1 i.e Prime Automobile Automobile with the allegations of manufacturing defect. The complainant has visited the opposite party’s place several times for the repair of the defective mini truck in question. The disputed/defective vehicle in question was HPA with the financed company. The complainant has paid the loan amount of Rs.2,50,000/- and get the loan financed from the financed company and also paid the EMI to the financed company because of the defective truck in question.
9. After going through the exhibited documents by the complainant, no doubt the vehicle in question was 22,500 km on the meter reading. The complainant has visited the workshop of opposite party and also filed the expert report which shows the vehicle in question in defective one and it has been manufacturing defect. But on the other hand, counsel for the opposite party agitated on the ground that no doubt the complainant has visited the opposite party ‘s place many times for the repair and servicing of the vehicle in question not for the manufacturing defect.
10. After going through the evidence led by the parties, the Commission is of the opinion that the complainant has used the vehicle in question 22500 km in one year. As per the expert report, this is a defective vehicle. Opposite party No.1 is directed to refund to the complainant the charges amount received from the complainant. Opposite party No.2 is directed to replace the vehicle in question with a new one, subject to return the old one . Opposite party No.2 is at liberty to refund the differences of the old vehicle or the invoice amount of the vehicle without taxes and GST. Suppose the vehicle in question of Rs.7,50,000/- and the complainant has used in one year 22,500km. Opposite party No.2 is at liberty to deduct the price of 33% from the new one or the price subject to deduction of 33% of the new one. The complainant is also directed to file Form 29,30, 35 to opposite parties Nos.1 & 2 original to opposite party No.2 and photocopy of the same to opposite party No.1. The opposite parties are also directed to pay Rs.3300/- as compensation on account of mental tension, agony and harassment alongwith Rs.3300/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 09.01.2023. (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
