Punjab

StateCommission

A/881/2015

Mahindra and Mahindra Ltd. - Complainant(s)

Versus

Parampal Singh - Opp.Party(s)

Vaibhav Narang

19 Jan 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.881 of 2015

                                                          Date of Institution: 07.08.2015

                                                          Order Reserved on : 17.01.2017

                                                          Date of Decision:  19.01.2017

 

Mahindra & Mahindra Limited, Gate Ward Building, Apolo Bunder, Mumbai -400001, India (Registered Office) through its Chairman/Managing Director/Principal Officer.

 

                                                               Appellant/Opposite party no.2      

                Versus

 

1.      Parampal Singh son of Sh. Jaspal Singh Dhillon, Director,       Hotel Khyber Continental Pvt. Ltd., 209-A, Queens Road,   Amritsar.

 

                                                               Respondent no.1/Complainant

 

2.      Universal Motors, Near Canal, G.T Road, Amritsar through its           Prop./Partner/Principal Officer.

 

                                                 Respondent no.2/Opposite  party no.1                                                                                               

First Appeal against order dated 18.06.2015 passed by the District Consumer Disputes Redressal Forum,  Amritsar.

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Shri.J.S Gill, Member

            Shri. H.S. Guram, Member

 

Present:-

          For appellant                : Sh.Vaibhav Narang, Advocate

          For respondent no.1   : Sh.Sukhandeep Singh, Advocate

          For respondents no.2 : Ex-parte

                    . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (opposite party no.2 in the complaint) has directed this appeal against order dated 18.06.2015 of District Consumer Disputes Redressal Forum Amritsar, accepting the complaint of the complainant by directing appellant to replace the car of respondent no.1 of this appeal (the complainant in the complaint) with new one car of same model or in the alternative to refund the full price thereof to him within two months from the receipt of copy of the order, besides payment of Rs.2000/- as costs of litigation. Respondent no.2 of this appeal is OP no.1 in the complaint they be referred as such hereinafter for the sake of convenience.

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he purchased Mahindra XUV500FWEDW8 manufacture and marked by OP no.2. He purchased this car from account of his father's hotel being director of above said Hotel. The complainant is beneficiary of the car, which was purchased by him for Rs.13,23,106/- from Dada Motors being dealer of OP no.2.  OP no.1 is service centre of OP no.2 for providing after sale service to the complainant. The complainant being beneficiary of the vehicle is consumer of the OPs. The vehicle purchased was having inherent manufacturing defect from the date of its purchase and was required to be taken to service centre of OPs from the next day of its purchase. Its seat back folding part got damaged on the very next day of its purchase, which was not set right till date as it required parts replacement. The engine light of the vehicle kept on turning on/off from the very date of its purchase and has not set right by OP no.1. The door locking motor of the driver side door has been replaced once by the OPs and it has not still working properly. The gears automatically shifted to third to second gear while driving, wiper motor has been stopped working and it needs to be replaced. Left window and speedometer makes loud sound while driving and above all right indicator turning never goes off, while turning which could lead to accident. There are several defects in the vehicle and due to above defects vehicle was taken to OP no.1 by complainant but nothing has been done to rectified them. On 03.12.2012, power steering of the above said vehicle has stopped working and it became so hard to turn and caused immense danger to driver and passengers of the vehicle. The inherent or manufacturing defects in the vehicle, which is deficiency in service, besides unfair trade practice on the part of OPs. The cause of action is alleged to be continuing one. The complainant has prayed that OPs be directed to pay Rs.13,23,106/- as cost of the vehicle to the complainant or in the alternative to replace the vehicle with new one. The complainant also prayed for compensation of Rs.5 lac for mental harassment and cost of litigation as well.

3.      Upon notice, OP no.1 appeared and filed written reply raising preliminary objections that complaint is not maintainable and is bad in the eyes of law. The complainant is not consumer as defined under Section 2(i)(d) of the CP Act and complaint merits dismissal. The vehicle has been purchased in the name of Hotel Khyper Continental Pvt. Ltd, which is a commercial establishment and it cannot be said that vehicle has been used for personal use by the complainant. Hotel being a commercial establishment cannot be a consumer under the CP Act. The complainant has not come to the Forum with clean hands and suppressed the material facts from the Forum. Any deficiency in service on the part of OP no.1 was vehemently denied. The complainant is alleged to be estopped by his act and conduct from filing the complaint. The complaint is alleged to be bad for non- joinder and mis-joinder of the necessary parties. On merits, it was admitted by OP no.1 that complainant purchased Mahindra XUM 500 vehicle for his personal use from the account of his father's hotel being director of the above said hotel. It was vehemently denied that complainant is beneficiary of the said vehicle. This fact was admitted that vehicle was purchased for Rs.13,23,106/- from Dada Motors Ludhiana. The vehicle was registered in the name of Hotel Khyer Continental Pvt. Ltd Amritsar and not in the name of the complainant. Invoice dated 19.06.2012 has been issued in the name of the above hotel, which is a commercial establishment. This fact was vehemently denied that vehicle was having inherent manufacturing defect right from the date of its purchase. This fact was also denied for want of knowledge that seat back folding part got damaged on the very next day of its purchase, which has not been set right. Problem was reported i.e. engine light problem to OP no.1 on 17.09.2012, which was resolved on the same day and vehicle was delivered to the customer after due satisfaction. The problem of door locking motor of driver side was reported on 26.10.2012, but nothing abnormal was found by OPs. The same was in perfect condition. Gear problem was reported on 26.10.2012, which was resolved by OPs. Problem regarding the wiper motor of the vehicle was reported on 03.12.2012, vide RO No. 6982, which was resolved and vehicle was delivered after proper satisfaction. Problem in left window and speedometer of the vehicle was reported and OP no.1 rectified the same and delivered the vehicle after proper satisfaction to the customer. On 10.07.2012 problem regarding right indicator was reported and same was rectified by the OPs.  The minor problem occurred in the vehicle and for the satisfaction of the customer, all the said problems were duly checked and rectified, as per the satisfaction of the customer. On  03.12.2012, when the power steering problem was reported in the vehicle, the same was replaced by new one free of costs because vehicle was under the warranty. Whenever any problem was reported to OP no.1, the same was rectified as per satisfaction of the customer. OP no.1 controverted other averments of the complainant with regard to its entitlement to the price of the vehicle. OP no.1 prayed for dismissal of the complaint.

4.      OP no.2 filed its separate written reply raising preliminary objections that dealers are authorized to purchase the vehicle manufactured by OP no.2 in bulk quantities and in turn resell them to their own customers. The relationship between manufacturer and dealer is on principal-to-principal basis and OP no.2 is not aware of the ultimate customer of dealer, as there is no privity of contract between the OP no.2 and ultimate customer of the vehicle.  The complaint is not maintainable. The complainant has not come to the Forum with clean hands and has suppressed the material facts. This fact was vehemently denied by OP no.2 in the preliminary objections that complainant is consumer of the vehicle. The vehicle has been purchased on the name of Hotel Khyber Continental Pvt.       Ltd, which is a commercial establishment and it cannot be said that vehicle was being used for personal use by the complainant. There is no cause of action to complainant to file the complaint. The complaint is liable to be dismissed because Forum has no territorial jurisdiction to try the complaint, as no cause of action qua OP has arisen within territorial jurisdiction of this Forum. The complaint is alleged to be bad for mis-joinder and non-joinder of the necessary parties. On merits, it was admitted that vehicle was purchased from Dada Motors Ludhiana and OP no.2 is service centre. This fact was vehemently denied that complainant purchased the above vehicle for personal use from the account of his father's hotel being director of the company. It was denied that complainant is beneficiary of the above said vehicle. The vehicle was sold by Dada Motors Ltd, vide invoice dated 19.06.2012 and complainant is not registered owner of the vehicle. The complainant approached OP no.1 for first time on 26.10.2012 with problem of engine sound, power window adjustment and dashboard adjustment. On 17th November, the engine tensioners were replaced free of cost and power window and dashboard had been adjusted. There was no defect in the vehicle, every machine needs little bit of maintenance and repair from time to time. Wiper motor was replaced on 03.12.2012 under warranty of the car, when vehicle had run 8412 Kms. Life window and speedometer problem had never been reported with OP no.1. Even alleged right indicator turning problem has also never been reported by the person, who brought the vehicle to the workshop. Any deficiency in service or unfair trade practice on the part of OP no.2 was vehemently controverted. OP no.2 prayed for dismissal of the complaint.

5.      The complainant tendered in evidence his affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-8, affidavit of Sh. J.S. Malhotra B.E (Mech) Surveyor/Loss Assessor  Ex.C-9 and copy of document Ex.C-10. As against it; OP no.1 tendered in evidence affidavit of Tejinder Singh son of Sh. Gurnam Singh Supervisor of M/s Universal Motors Ex.OP-1/1 along with copies of documents Ex.OP-1/2 to Ex.OP-1/10, affidavit of Jagpreet Singh son of S. Kulwant Singh Ex.OP-1/11, affidavit of Ranjit Singh Sandhu son of Bakhtawar Singh Ex.OP-1/12. OP no.2 tendered in evidence affidavit of Sh. Mohinder Partap Singh authorized signatory Ex.OP-2/1 and closed evidence on behalf of OP no.2. On conclusion of evidence and arguments, the District Forum Amritsar accepted the complaint of the complainant by virtue of order dated 18.06.2015. Dissatisfied with the order of the District Forum Amritsar dated 18.06.2015, the opposite party no.2 now appellant, carried this appeal against the same.

6.      We have heard learned counsel for parties and have examined the record of the case.

7.      Parampal Singh complainant tendered in evidence his affidavit Ex.C-1 as evidence. This affidavit is verbatim reproduction of the version of the complaint, as pleaded by the complainant. Ex.C-2 is invoice no.INV/13A000404 dated 19.06.2012 showing that vehicle was sold to M/s Hotel Khyber Continental Pvt. Ltd 209-A Queen Road, Amritsar. Customer ID is C132954225 and mobile no. 9914609797. Ex.C-3 is complaint sent to OPs by the complainant through e-mail on 06.07.2012, which was replied by OPs, vide Ex.C-4. Ex.C-5  has shown that wiper motor was not working and wiper motor needs to be replaced by customer due to shortage of time. Ex.C-6 dated 26.10.2012 record of the complaints of engine cooling sound, dashboard adjust, front power window noise, tyre pressure set. The action was taken and  engine tensioners needed to be replaced. Dashboard box to be replaced, vide Ex.C-7 dated 03.12.2012. Problem of wiper oil leakage were found. It was observed that pump needs to be replaced.  The complainant also relied upon affidavit of Er. J.S Malhotra Surveyor/Loss Assessor Ex.C-9. Similarly, we have also examined other documents Ex.C-8 to Ex.C-10 on the record.

8.      We have also examined the evidence of the OPs, affidavit of Tejidner Singh son of S. Gurnam Singh Supervisor of M/s Universal Motors Amritsar Ex.OP-1/1. He has stated that he has attended the workshop of the company. He issued job card and himself checked the vehicle at the service centre of the OPs. The OPs also relied on affidavit of Jagpreet Singh son of Sh. Kulwant Singh Ex.OP-1/11. He stated that he has attended the training/workshop of the company. He himself checked the vehicle and issued job card. He denied that complainant approached OP no.1 for repair of seat back folding part and it is so reflected from the complete vehicle history. On 17.09.2012, the customer visited the workshop for running repair at 4648 Km and reported the problem regarding the engine light problem, which was resolved on the same day and vehicle delivered after due satisfaction. On  26.10.2012 (at 6572  km run) the vehicle was brought for repair and issued job card and reported that problem of engine knocking sound, which was due to automatic tensioner and same was ordered to the Company for replacement. The front power window noise and dashboard adjust, the same was rectified by the technician of the workshop and vehicle was handed over to the customer. On 17.11.2012 (at 7947 run) customer visited the workshop and reported the front side noise from engine compartment and automatic tensioner and Pully Idler were replaced free of cost under warranty. He further stated that on 19.11.2012 at 8063 run, customer visited the workshop and reported the power steering oil leakage vide RO 13A006519 and hose pressure RH-pump to gear was replaced free of cost under warranty and deliver the vehicle to the customer after proper satisfaction. On 26.11.2012 (at 8368 run), the vehicle was brought to the workshop for the problems wiper nozzle nor working as well as front side noise from engine, but no abnormal noise was found and regarding the wiper nozzle, the customer himself refused to replace due to shortage of time. Jagpreet Singh prepared the Job Card no. RO13A006982. The problem regarding wiper motor of vehicle and pump washer and windshield washer motor replaced free of costs under warranty. Problem in power steering pump was replaced on 24.12.2012 free of cost under warranty. Affidavit of Ranjit Singh Sidhu Ex.OP-1/2 is on the record regarding support of averments of the OPs. He deposed that complainant is not consumer of the OPs because vehicle was not purchased by him nor he is registered owner of the same. The District Forum reached the conclusion that vehicle contained inherent manufacturing defect and ordered replacement of the same or refund of the price.

9.      From appraisal of above-referred evidence and hearing respective submissions of counsel for the parties, we find that the instant complaint was filed before District Forum Amritsar on 17.12.2012. The job card after that date are not much significance. We have to decide the case as per circumstances, which existed at the time of institution of the complaint.  The vehicle was purchased on 19.07.2012 as per Ex.C-2 in the name of Hotel Khyber Continental Pvt. Ltd. The complainant has alleged manufacturing defect in the vehicle. The job card Ex.OP-1/2 to Ex.OP-1/8  are on the record in this case. Whatever problem was pointed out, they were either replaced or resolved by the OPs in the vehicle. The complainant is on the basis of above-referred faults pointed out in the job cards and on the basis of affidavit of J.S Malhotra contained in his affidavit Ex.C-9 submitted that the vehicle was affected with manufacturing defect. The cross examination of J.S Malhotra conducted before District Forum Amritsar on 21.05.2014 has been perused by us. He admitted that he has not brought any degree in of the institute that he is Mechanical Engineer and have 25 years experience. He stated that he has not checked the vehicle when job card was opened. He merely checked the vehicle when it has speedometer reading of 21976/-. He has not attended any workshop of the Mohindra XUV 500 of the company. He has no court order to check the vehicle. He gave report at the instance of the complainant after charging fee from him. His report is based only on the driving of the vehicle. He has neither personally checked the engine nor got it dismantled for checking. We find that the testimony of J.S. Malhotra alleged expert witness relied upon by the complainant cannot be said to have proved the defect in the vehicle. He has not produced any degree before the Forum to prove his qualification. He has not produced any experience certificate duly given by the company in this regard. Generally, the matter is reported to the District Forum for appointment of any expert witness to prove the manufacturing defect in the vehicle. This has not been done in this case. On the other hand, Jagpreet Singh Supervisor /OP no.1 has stated that vehicle was not affected with manufacturing defect and there were routine type of defects. On this point, National Commission has held in Satnam Singh  versus Mahindra & Mahindra Ltd and others, Revision Petition no.2920 of 2013  decided on 30.07.2014, reported in 2014(3) CLT Page  507 that only defective parts can be replaced, but not the whole vehicle. Law laid down by Supreme Court in Maruti Udyog Ltd  vs. Susheel Kumar Gabgotra and another, reported in 2006(2) Consumer Law Today 150 (SC) was relied upon in this authority. The Apex Court has held that during the warranty period only defective parts of the vehicle can be replaced and not the entire vehicle. The District Forum lost the sight of law settled by Apex Court in the above authority. Since there is no manufacturing expert witness appointed by the District Forum to prove the manufacturing defect and hence, we are left with the report of J.S Malhotra. Whatever defects were pointed out were either replaced or resolved in this case.  We follow the law down in Maruti Udyog Ltd  (supra)  and hold that only defective parts during the operation of warranty period are liable to be replaced and not the entire vehicle, as ordered by the District Forum in this case because the principle of res ipsa loquitor is not applicable to the facts of the case.

10.    Now, coming to the point, whether complainant is proved to be consumer of OPs or not. We have come to conclusion that vehicle was purchased by the Hotel Khyper Continental,  which is Pvt. Ltd Company. No resolution has been passed by the Hotel being Pvt. Ltd Company authorizing that vehicle shall be used for earning livelihood by means of self-employment of the Director of the Company. In the absence of any resolution passed by Hotel Kyper Continental, we do not accept the submission of complainant that he would be consumer being beneficiary of the services of the OPs. Pvt. Ltd Company always acts through resolutions only. The vehicle is in the name of the Hotel Khyper Continental Pvt. Ltd., and in the absence of any resolution, we do not accept the submission of counsel for the complainant that it was purchased for the personal use of the Director, who was father of the complainant. On this point, we are supported by law laid down by National Commission in Shivom Projects Private Limited versus Toyota Kirloskar Motor Pvt. Ltd, reported in 2015(1) CPJ 422. The National Commission has held in this authority that vehicle was not purchased exclusively for purposes of earning livelihood by means of self-employment for Director of the Company, it is not for the livelihood of the Director or personal use of the Director. He has to use the car only for commercial purposes and that is why, he purchased it in the name of the company. There is no resolution for purchase of the car exclusively for the livelihood of the director or personal use of the director and hence it cannot be said that complainant is a consumer. Vide above-referred law laid down by National Commission in Shivom Projects Private Limited (supra), we hold that complainant not to be a consumer of the OPs, as held in  National Commission in M/s Controls and Switchgear Company Ltd versus M/s Daimlerchrysler India Pvt. Ltd and another reported in 2007 SCC NCDRC 72 in Original Revision Petition No. 9 of 2006  decided on 17.09.2007 . The National Commission observed that company is a legal entity and car was purchased for the use of the Director and not to be used for any activity. This authority is distinguishable from the fact situation of the case because unless and until a resolution has been passed by the company in this regard, we cannot hold the complainant, who is son of the director being beneficiary to be consumer for services of the OPs. We rely upon law laid by National Commission in Shivom Projects Private Limited (supra) , which is covering the controversy in this case.

11.    As a result of our above-referred discussion, we hold that the order of the District Forum is not sustainable in the eyes of law and is liable to be set aside. The complainant is not proved to be a consumer and hence the complainant has no locus standi to file the complaint before Consumer Forum under CP Act 1986. Consequently, we accept the appeal of the appellants and set aside the order of the District Forum Amritsar dated 18.06.2015. The complainant is at liberty to approach proper forum for redressal of his grievances and can invoke the provision of Section 14 of the Limitation Act, 1963 in this regard.

12.    The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.12,98,106/- in compliance with the order of this Commission.  Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the appellants of this appeal by way of crossed cheque/demand draft after the expiry of 45 days.

13.    Arguments in this appeal were heard on 17.01.2017 and the order was reserved. Copies of the order be communicated to the parties as per rules.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

                                                                              (J.S GILL)

                                                                               MEMBER

 

                                                                            

                                                                             (H.S GURAM)

                                                                                 MEMBER

 

                                                                            

January 19,  2017                                                               

(ravi)