DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.430 of 2016
Date of institution: 20.07.2016 Date of decision : 05.02.2019
Gurmeet Singh son of Shri Pritam Singh, resident of House No.97, Street No.2, Near Phase-1, Mohali.
…….Complainant
Versus
1. M/s. CMPL Motors (P) Ltd., 52, Industrial Area, Phase-I, Chandigarh through its M.D./Manager namely Mr. Gagandeep Singh.
2. M/s. CMPL Motors (P) Ltd., Workshop situated at Plot No.23, Industrial Area Phase-I, Chandigarh through its Works Manager/Supervisor.
3. M/s. A.U. Financers India Ltd., SCO No.102, 2nd Floor, Balongi, Tehsil Kharar, District Mohali.
4. M/s. Tata Motors P Ltd., # 365, Purav Marg, 3B1, Mohali.
(Address originally given in the complaint)
Tata Motors Ltd., SCO No.170-171-172, Sector 17-C, Chandigarh. (Address submitted on 23.12.2016)
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri Sanjay Kumar, counsel for complainant.
Shri Paras Chug, counsel for OP No.1 and 2.
OP No.3 ex-parte.
Shri Vivek Khadwal, Advocate for Shri Pawan Kumar, counsel for OP No.4.
Order by :- Shri G.K. Dhir, President.
Order
Complainant booked Tata Magic vehicle for self employment on 21.04.2015. Temporary registration No.CH-89(T) 494 was issued by OPs. Booking amount of Rs.67,000/- was paid on 28.04.2015 against total worth of vehicle as Rs.4,47,000/-. This vehicle was delivered to complainant on 27.05.2015, when an amount of Rs.13,000/- more paid by complainant. Down payment of Rs.80,000/- was made to OP No.1. OP No.2 is service centre and OP No.4 is manufacturer of vehicle. This vehicle was got financed from OP No.3 for a sum of Rs.3,75,000/- on 23.05.2015. Even this vehicle was got insured with ICICI Lombard on 27.05.2015, but registration certificate of the same obtained on 29.07.2015 through OP No.4. After four months, this vehicle started giving problems like that of pick up, regular heavy noise from front side, engine vibration; alignment and suspension. Regular repairs of engine were needed resulting in huge financial loss to complainant. On 28.09.2015 complainant visited OPs regarding engine oil problems, but OPs claimed as if free service is provided to complainant and there will be no problems. On 19.10.2015 complainant approached OPs with same problems because of leakage of engine oil and job card in that respect was prepared. Legal notice dated 06.11.2015 was served by complainant through counsel, but despite that problems have not been resolved and that is why this complaint for directing OP No.1 and 2 to refund whole price of vehicle i.e. Rs.4,47,000/-. Even direction sought to OP No.3 not to initiate any kind of litigation against complainant till disposal of the complaint. Compensation for a sum of Rs.1.00 lakh for harassment more claimed.
2. In joint reply submitted by OP No.1 and 2 it is pleaded inter alia as if complaint has been filed on incomplete and distorted facts; complainant is not consumer within meaning of Consumer Protection Act because vehicle in question is commercial vehicle meant for carrying out commercial activities and that the vehicle does not suffer from any defect. Documents produced by complainant themselves establishes as if he has used the vehicle extensively because it covered distance of 7174 KMs just in span of 4 months from the date of purchase. In view of this, it is claimed that question of manufacturing defect does not arise. Vehicle in question purchased from Chandigarh and even workshop of OPs is at Chandigarh. No cause of action available to complainant against OP No.3. Rather OP No.3 alleged to have been impleaded as party just for showing that this Forum has jurisdiction. Admittedly vehicle in question was got booked by complainant with OP No.1 and 2 and the same was got financed from OP No.3. It is denied that vehicle was registered with OP No.4 because in fact same was registered with State Transportation Authority and not with manufacturer or dealer. False and frivolous allegations alleged to be leveled by concealing material facts. Al other averments of complaint denied except that complainant visited OP No.2 for the first scheduled service, but without engine oil problem. It is further claimed that complainant approached OP No.2 on 19.10.2015 for accidental repairs for getting ORVM (outer rear view mirror) replaced because of same being broken. Complainant has tried to project different facts for misleading the Forum. By denying each and every averment of the complaint, prayer made for dismissal of the same.
3. In separate written statement filed by OP No.3, it is claimed that no legal notice was received by OP No.3. Further it is claimed that OP No.3 has not caused any wrongful loss to complainant and nor it rendered any deficient services. Allegations leveled in the complaint do not pertain to OP No.3 and as such complainant has no cause of action available against OP No.3.
4. In separate reply filed by OP No.4, it is claimed that complaint is filed by way of abusing process of law and suppression of material facts. Besides, it is claimed that complainant is not consumer of OP No.4 because of purchase of commercial vehicle for commercial purposes. As vehicle in question was extensively used uptill 09.04.2016, because of its coverage of 17500 KMs distance and as such it is claimed that question of manufacturing defect does not arise. Moreover, this Forum has no territorial jurisdiction because OPs work for gain at Chandigarh and the vehicle even purchased therefrom. Repair of vehicle even got done at Chandigarh. Place of residence of complainant will not confer territorial jurisdiction on this Forum. There is no manufacturing defect in the vehicle in question and nor any step taken for obtaining report contemplated by Section 13 (1) (c) of Consumer Protection Act. In view of involvement of complicated questions of law and facts, matter should be got decided from civil court of competent jurisdiction. Other averments of the complaint denied by claiming that complaint being false and frivolous, should be dismissed.
5. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-9 and then closed evidence. On the other hand counsel for OP No.1 and 2 tendered in evidence affidavit Ex.OP-1/1 of Shri Ravi Kumar, authorised representative and thereafter closed evidence. Counsel for OP No.4 tendered in evidence affidavit Ex.OP-4/1 of Shri Sharmendra Chaudhry, Manager Law and then closed evidence. OP No.3 failed to produce any evidence despite grant of sufficient chances and as such evidence of OP No.3 was closed by order dated 31.08.2018.
6. Written arguments in this case submitted by OP No.4 and not by remaining OPs. Oral arguments heard and records gone through.
7. First and foremost question requiring consideration is as to whether this Forum has territorial jurisdiction or not? Ex.C-1 receipt showing down payment establishes as if these payments made to OP No.1 at Chandigarh in its office at Industrial Area, Phase-1, Chandigarh. Even temporary certificate of registration Ex.C-2 issued by Chandigarh Administration and as such submission advanced by counsel for appearing OPs has force that this vehicle was purchased at Chandigarh. Both OP No.1 dealer and OP No.2 service centre have their offices at Chandigarh. OP No.4 manufacturer earlier shown to be having its office at Mohali, but later on by change of address, it is shown as if it has its office at Chandigarh. However, manufacturer Tata Motors is neither having its office at Mohali and nor at Chandigarh, but in Mumbai and as such it is obvious that virtually false plea in this respect is taken in the complaint.
8. Ex.C-3 copy of insurance cover note of vehicle in question shows as if the policy was issued on 27.05.2015 and as such insurance policy purchased within one month of making of down payment. Even if registration certificate of vehicle Ex.C-4 obtained from Punjab Area, despite that jurisdiction is not conferred on this Forum due to issue of Ex.C-4 only because purchase of vehicle made at Chandigarh and even first free service got from OP No.2 at Chandigarh, as disclosed by retail invoice Ex.C-5. Even subsequent service on 19.10.2015 got done at Chandigarh as disclosed by Ex.C-6 or by Ex.C-9. So certainly submission advanced by counsel for OPs has force that neither purchase of vehicle made in Mohali area and nor service of vehicle got done in Mohali area.
9. Relief claimed against OP No.3, financer is that he should not initiate any action for recovery during pendency of this complaint. That claimed relief is just for conferring jurisdiction on this Forum. OP No.3 virtually has been unnecessarily dragged in this litigation because no deficiency in service on part of OP No.3 alleged, pleaded, proved or claimed through submitted affidavit or the documents. Financer who has advanced loan for purchase of vehicle definitely bound to recover the same or is entitled to recover the same even if there may be problems in running of financed vehicle. In what way deficient services provided by OP No.3, qua that nothing alleged in the complaint or in the submitted affidavit and as such certainly submission advanced by appearing counsel has force that OP No.3 arrayed as a party just for conferring jurisdiction on this Forum for purpose of this complaint.
10. As per law laid down in case Sonic Surgical Vs. National Insurance Company Ltd., 2010(1) SCC 135, a claim petition under section 17 of Consumer Protection Act, 1986 can be filed before the Forum where cause of action or part of cause of action accrued. No part of cause of action accrued in territorial jurisdiction of this Forum in this case before us because vehicle purchased at Chandigarh, temporary registration number thereof obtained from Chandigarh and even service through job cards referred above availed at Chandigarh and as such certainly in view of Section 11 of Consumer Protection Act, this Forum has no territorial jurisdiction to entertain this complaint.
11. Though manufacturing defects alleged, but despite that no report produced for showing manufacturing defects. Even attempt has not at all been made by complainant for obtaining report for showing alleged manufacturing defects. In the absence of any report of expert, it can’t be held that complainant able to establish as if manufacturing defects in the purchased vehicle by him from OP No.1 are there. Being so, entitlement of complainant for refund of price of vehicle is not there, more so when job cards referred above shows as if complainant used the vehicle extensively, but without any major defect.
12. Retail invoice Ex.C-5 dated 28.09.2015 shows as if vehicle travelled distance of 7174 KMs at that time when it was brought for first free service. It was on account of this that charges for oil and fuel filter were recovered from complainant. In view of first free service, no labour charges were recovered from complainant and as such it is obvious that virtually first free service got by complainant from OP No.2 at the time when there was no problem of noise or of vibration etc., as alleged. At the time of second service got done on 19.10.2015, vehicle in question travelled distance of 10610 KMs., is a fact borne from retail invoice Ex.C-6. At that time rear view mirror was changed for which Rs.435/- were charged, is a fact borne from contents of Ex.C-6. So both these job sheets shows as if there was no major problem at the time when the vehicle was brought for service on these two occasions. In view of non existence of major fault on these occasions, it has to be held that actually vehicle in question remained free from defects during coverage of distance upto 10610 KMs.
13. It is also contended by counsel for complainant that if we go by contents of Ex.C-9 or Ex.C-5, then it is made out that vehicle was owned by Palminder Singh and as such the old vehicle sold to complainant by terming the same as new one. That submission of counsel for complainant has no force because job sheet Ex.C-9 is of date 09.04.2016, whereas Ex.C-5 is of 28.09.2015, but before that registration certificate Ex.C-4 was issued in the name of complainant Gurmeet Singh on 29.07.2015 and even receipt Ex.C-1 and temporary registration certificate Ex.C-2 as well as insurance cover note Ex.C-3 dated 27.05.2015 are in his (complainant) name. So mention of name of Palminder Singh in Ex.C-5 and Ex.C-9 was on account of the fact that he brought the vehicle in question for service.
14. There is plea taken in the complaint that vehicle booked by complainant for self employment and as such it is obvious that commercial vehicle purchased by complainant for earning livelihood by way of self employment. Being so, case of complainant governed by Section 2 (1) (d) of Consumer Protection Act and as such complainant is held to be a consumer. However, neither the defects claimed exists and nor manufacturing defects proved and as such complaint deserves to be dismissed for want of territorial jurisdiction, but with advise to complainant to avail remedy before appropriate Forum/Court.
15. No other pointed argued.
16. As a sequel of above discussion, complaint dismissed for want of territorial jurisdiction. Complainant, if advised, may avail remedy before appropriate Forum/Court. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
February 05, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
