District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.247/2019.
Date of Institution: 27.05.2019.
Date of Order: 25.10.2024.
Parul Singh aged about 41 years S/o Sh. Suraj Pal Singh, R/o D/388/6-H.No. 2101, Dabua Colony, NIT, Faridabad – 121001.
…….Complainant……..
Versus
1. M/s. VE Commercial Vehicles ltd., (A Volvo Group & Eicher Motors Joint Ventures) Registered office & works: 102, Industrial Area No.1, Pithampur – 44775, District Dhar (MP), through its CEO.
2. M/s. Shree Motors Pvt. Ltd., (Authorized Dealer of M/s. Eicher Motors) office at:1-a, 240-243, Neelam Bata Road, NIT, Faridabad – 121001 through its Director/Principal Officer.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma………..Member
Indira Bhadana………….Member.
PRESENT: Sh. R.C.Gaur, counsel for the Complainant.
Sh. Ajay Sharma, counsel for opposite party No.1.
Sh. Abhishek Pareek, counsel for opposite party No.2.
ORDER:
The facts in brief of the complaint are that the complainant purchased the vehicle i.e. Eicher Pro 1059xP,bearing chassis No. MC2B7ERC0HE371289, engine No. E414CDHE141643 (registration NO. HR-38-W-6083) on 05.06.2017 vide invoice No. 1043011700111 for a total cost of Rs.10,82,352/- for sake of convenience hereinafter, the aforesaid vehicle would be called “Vehicle”. However, the said vehicle was also got financed by the complainant. Besides this, the complainant also spent huge amount on insurance, registration, permit etc. of the said vehicle. The opposite parties also assured about the warranty of the said vehicle and same had been mentioned at page No.3 of “Operator’s Manual”, which as under: “1.a) For Normal Haulage Trucks & Dump Truck Models Pro 1090 & 1090 (BSIV), Pro 1080XP, pro 1080XP (BSIV, pro 1080, Pro 1080 (BSIV), pro 1075, Pro 1075 (BSIV), Pro 1059xP, Pro 1059xP (BSIV), Pro 1059, Pro 1059 (BSIV), Pro 1055, Pro 1050, Pro 1050 (BSIV), pro 1049 & Pro 1049 (BSIV) the warranty should be in force until the expiry of 12 months from the date of sale of the vehicle irrespective of the kilometers covered during this period. The entire transmission warranty would be of 36 months from the date of sale of the vehicle irrespective of kilometers covered. After purchasing the said vehicle, the complainant started facing hardhip in plying the said vehicle, because the engine of the said vehicle started giving problems as the said vehicle after running few kilometers, giving huge heat and bad noise and the engine used to stop abruptly/all of sudden. The vehicle on its way to Badaun from Faridabad with consignment thereon, the vehicle was stopped abruptly on 11.08.2017 showing “engine over heating” on monitor at DIBAI, accordingly call was made at the call center of the opposite parties but there was no response from the Call Centre and the vehicle was brought by the complainant by crane on 12.08.2017 in evening hours,. On 13.08.2017 a call was made at Sincere Marketing Services Gurugram for its repairs under guarantee, who intern told that there was no space in service centre for vehicle, as such please come on 15.08.2017 and the job card would be issued on 16.08.2017. Accordingly, on 16.08.2017, a job card No. 400034865 issued and after repair the vehicle was delivered back to the complainant on 18.08.2017 with OK report. As such the vehicle remained out of road for 08 working days and apart from this, loss of freight of this vehicle as well as engagement of another vehicle of consignment, demurrages on delay of transportation etc. At another instance, the complainant sent the vehicle to Kushinagar from Faridabad to deliver the consignment but the vehicle while reached at Kanpur on 25.05.2018, the engine of the vehicle all of sudden stopped and the monitor was showing the sign of over heating. The driver of the vehicle tried his level best to start the said vehicle but he could not succeed and the complainant made a call to the call centre of the opposite parties but there was indifferent response, there was no alternative except to arrange another vehicle to deliver the consignment and brought the vehicle at the workshop of opposite parties at Faridabad with the help of Crane provided by Neeraj Crane Service, Khanpur Khjarana Rania, Kanpur Dehat (UP) and the complainant had paid Rs.22,000/- as fare charges on 25.05.2018. The milage covered from date of purchase to till 29.05.2018 was 50,505 km (including towing from Kanpur to Faridabad with crane). Thereafter, the opposite parties checked the said vehicle and again endorsed on job card bearing No. 4000824305 dated 29.05.2018 “Starting and engine heating problem” and again handover the said vehicle with the assurance that the said vehicle would not create any problem, but of no use, the said problem remained same and the vehicle remained out of road for five days. Thereafter, the complainant again sent his above vehicle to other destination, Faizabad (UP), but when the vehicle reached Gaddopur, District Faizabad, the vehicle again stopped showing red lights of engine overheating and the complainant again brought the said vehicle at the Authorized Service Center of opposite party No.1 namely “Naveda Motors Pvt. Ltd.” at Opp. FCI Godown, gaddopur, Faizabad (UP) on 05.06.2018 and the vehicle was handed over to the complainant on 09.06.2018 by giving assurance that the problem had been removed but of no use and the problem in the engine remained same and the vehicle remained out of road for five days. The complainant sent a legal notice dated 01.12.2018 to opposite party through his counsel but all in vain. 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 aforesaid defected vehicle in question with new one;
b) refund the cost of the said vehicle (including registration charges, insurance, RTO taxes etc.) alongwith interest @ 12% p.a. from the date of its purchase to its realization.
c) pay Rs.2,00,000/- on account of unnecessary expenses and loss of earnings from the said vehicle.
d) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
e) pay Rs.21,000 /-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 vehicle in question was purchased for commercial activity by the complainant for earning profit. It was submitted that the complainant owned another commercial vehicle having registration NO. HR38Q1379 and was carrying on transport business and earning profits therefrom. Hence, the corollary that flows from the above discussion was that the complainant was using the vehicle in question purely for commercial purpose. It was submitted that the vehicle in question was being used by the complainant for the commercial purposes and was not even operated in compliance of the guidelines and norms prescribed by the answering opposite party to ply the vehicle on the road and the vehicle was used by the complainant in negligent manner to earn more and more profits without caring about the norms laid down by opposite party No.1 It was submitted that there was no proper schedule maintained by the complainant for servicing of the vehicle as per the service program. The present complaint was bad for non-joinder of necessary parties, in the present case the vehicle was hypothecated to Cholamandalam Investment and Finance Company Cholamandalam Investment and Finance Company was necessary party for proper adjudication of the present complaint case. 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 instant complaint was not only malicious, misconceived but also not tenable in law. It was further submitted that the complainant was guilty of suppression and non-disclosure and had by falsely asserted and averring rights and obligations, which did not otherwise exist inasmuch as the present complaint was not maintainable qua the answering opposite party in view of the true and correct facts which were detailed herein after.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– VE Commercial Vehicle and anr. with the prayer to: a) replace the aforesaid defected vehicle in question with new one; b)refund the cost of the said vehicle (including registration charges, insurance, RTO taxes etc.) alongwith interest @ 12% p.a. from the date of its purchase to its realization. c) pay Rs.2,00,000/- on account of unnecessary expenses and loss of earnings from the said vehicle. d) pay Rs.1,00,000/- as compensation for causing mental agony and harassment . e) pay Rs.21,000 /-as litigation expenses.
To establish his case, the complainant has led in his evidence Ex.CW1/A – affidavit of Parul Singh, Ex.C-1 – retail invoice, Ex.R-2 – RC,, Ex.C-3 – insurance policy,, Ex.C-4 – warranty, Ex.C-5 – job card, Ex.C-5A – invoice, Ex.C-5B – Tax invoice, Ex.C-6 – bill,, Ex.C-7 – job card, Ex.C-8 – tax invoice,, Ex.C-9 – job card, Ex.C-10 – legal notice, Ex.C-11 – postal receipt, Ex.C-12 – reply, Annx.C-13 – reply to legal notice,
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 Goutam Prasad Sharma S/o late Shri B.P.Sharma, Authorized Representative of VE Commercial Vehicle Ltd., 3rd floor, select Citywalk, District Centre, Saket, New Delhi, Ex.RW1/1 – power of attorney, Ex.RW1/2 – Vehicle details showing in Registering authority, Ex.RW1/3(colly) - Job Card copy, Ex.RW1/4 (colly) – replies.
As per the evidence of opposite party No.2 Ex.RW-2/A – affidavit of Pursotam Gupta, Authorized Representative of M/s. Shree Motors Private Limited, Plot NO.1-A/240, 243, Neelam Bata Road, NIT, Faridabad. Ex.RW-2/1 - resolution, Ex.RW2/2 - Vehicle Service History.
7. In this case, the complaint was filed by the complainant with the prayer to:a)replace the aforesaid defected vehicle in question with new one; b)refund the cost of the said vehicle (including registration charges, insurance, RTO taxes etc.) alongwith interest @ 12% p.a. from the date of its purchase to its realization. To prove his case, the complainant has led in his evidence Ex.C-1 to C-13. On the other hand, opposite party No.1 led in their evidence Ex.RW1/A to Ex.RW1/4(colly). Opposite party No.2 led in their evidence Ex.RW-2/A to Ex.RW2/2.
8. The counsel for the complainant argued that after purchasing the said vehicle, the complainant started facing hardhip in plying the said vehicle, because the engine of the said vehicle started giving problems as the said vehicle after running few kilometers, giving huge heat and bad noise and the engine used to stop abruptly/all of sudden. The vehicle on its way to Badaun from Faridabad with consignment thereon, the vehicle was stopped abruptly on 11.08.2017 showing “engine over heating” on monitor at DIBAI, accordingly call was made at the call center of the opposite parties but there was no response from the Call Centre and the vehicle was brought by the complainant by crane vide bill dated 12.08.2017 for Rs.7000/- vide Ex.5B. The counsel for the complainant argued that on 13.08.2017 a call was made at Sincere Marketing Services Gurugram for its repairs under guarantee, who intern told that there was no space in service centre for vehicle, as such please come on 15.08.2017 and the job card would be issued on 16.08.2017. Accordingly, on 16.08.2017, a job card No. 400034865 issued and after repair the vehicle was delivered back to the complainant on 18.08.2017 with OK report. As such the vehicle remained out of road for 08 working days and apart from this, loss of freight of this vehicle as well as engagement of another vehicle of consignment, demurrages on delay of transportation etc. As per job card vide Ex.C7, opposite parties checked the vehicle in question and again endorsed on job card bearing No. 4000824305 dated 29.05.2018 and again handover the said vehicle with the assurance that the said vehicle would not create any problem but of no use., the said problem remained same and the vehicle remained out of road for five days.
9. Keeping in view of the above submissions as well as the evidence led by the parties, the Commission is of the opinion that the complainant purchased Eicher Pro 1059xP bearing chassis No. MC2B7ERC0HE371289, engine No E414CDHE141643 (registration NO. HR-38W-6083) on 05.06.2017 vide invoice No. 1043011700111 for a total cost of Rs.10,82,352/-. The vehicle in question is giving problem from two month of its purchase. Lodging of several complaints to opposite parties in this regard as well as job cards, Ipso facto go to prove that the vehicle in question had a manufacturing defect which was not removed by the opposite parties. Hence, the deficiency in service on the part of the opposite parties have been proved. Hence complaint is allowed.
10. O.P.Nos.1& 2, jointly & severally, are directed to replace the vehicle in question with a new one, subject to deduct 25% of invoice amount of Rs.9,47,302/- because the mileage covered from the date of purchase to till 29.05.2018 was 50,505 km vide Ex.C-7. Taxable amount will not be refunded to the complainant. The details are as under:
Total value of the Invoice : Rs..9,47,303.00
Less Excess Clause : Rs. 1,000.00
: Rs.9,37,303.00
Deduction 25% of the invoice amount : - Rs.2,34,325.75
Rs.7,02,977.25
Less cost of wreckage : Rs.5,00,000/- (with RC)
Net liability with wreckage : Rs.7,02,977.25 minus
Rs.5,00,000/-
(Wreckage Rs.2,02,977.25)
11. The learned counsel for complainant during arguments stated that the loss be given on total loss basis and the wreckage be given to the opposite parties and the complainant wants its cost. The complainant did not want to keep the wreckage with him, therefore, in these circumstances the complainant is entitled for the cost of the wreckage and the wreckage will remain with the opposite parties.
12. Thus, in view of above discussion, we allow the complaint and direct the opposite parties to pay Rs.7,02,977.25- to the complainant on total loss basis, subject to the condition that the complainant will furnish the subrogation letter, cancellation of RC, affidavit, Form 29,30 and Form 35 and undertaking that he will not claim anything about the damage of the vehicle in question. In case the complainant keeps the wreckage, then he is entitled for Rs.2,02,977.25. Opposite parties Nos.1 & 2 are also directed to pay Rs.5500/- as compensation for causing mental agony & 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 sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 25.10.2024. (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.
