Haryana

Ambala

CC/134/2018

Gurcharan Kumar - Complainant(s)

Versus

Pasco Motors - Opp.Party(s)

Sudhir Sehgal

09 Dec 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                          Complaint Case No.        :  134 of 2018.

                                                          Date of Institution           :    01.05.2018.

                                                          Date of decision               :    09.12.2019.

Gurcharan Kumar son of Sh. Sukh Ram, resident of village Kanipla, P.O. Saranwan, Tehsil Bilaspur District Yamuna Nagar.

                                                                                       …. Complainant.                                                Versus

1.       PASCO Motors, NH-73 Ambala-Jagadhri Road, Opp. Gurudwara    Dosarka (133203), District Ambala through its Branch Manager.

2.       Metro Motors Pvt. Ltd., authorized dealer TATA Motors Pvt. Ltd. 10^th       Mile, GT Road, Mohra (Ambala)-133004, District Ambala through its    authorized person.

3.       M/s Tata Motors Ltd., 5, Jiwan Tara Building, Parliament Street, New        Delhi through its Managing Director.

4.       Chola Business Services Ltd., SCO No.97, Prem Nagar, Above Famina      Plus Opposite Cheema Palace, Ambala City through its authorized        person.

 

          .…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Sudhir Sehgal, Advocate, counsel for the complainant.

Shri Manish Sharma, Advocate, counsel for the OP No.1.

Shri S.R. Bansal, Advocate, counsel for the OP No.2.

Shri Shekhar Bansal, Advocate, counsel for the OP No.3.

Shri Puneet Sirpaul, Advocate, counsel for the OP No.4.

         

Order:        Shri Vinod Kumar Sharma, Member

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’), praying for issuance of following direction to it:-

1. To replace the vehicle with a new one of same standard.
2. To pay Rs.50,000/- as compensation on account of mental agony & physical harassment suffered by him.
3. To pay Rs.11,000/- as litigation expenses.
   382.  

Any other relief which this Hon’ble Forum may deem fit.

 

                   It is pertinent to mention here that earlier the complainant has filed a complaint and withdraw the same on 21.02.2018, with the permission to file afresh complaint on same cause of action before appropriate court/forum. Accordingly, the complainant filed the present complaint alleging therein that the complainant purchased TATA ACE DICOR bearing registration No.HR-58B-7762 from the OP No.1 against a bill/invoice No.PASCMO/R-1415-02272 on 15.01.2015 for a sum of Rs.4,00,000/-. OP No.2 is the authorized dealer/service of TATA Motors Ltd. OP No.3 is the manufacturer of the vehicle in question. From the very beginning, the above said vehicle was not running properly and having problem of overheating and black smoke and the complainant whenever visited the office of OP No.1 and 2, their official states that there was some minor adjustment required in the vehicle in question and asked the complainant that there was no other defect in the vehicle in question. Complainant got serviced the vehicle in a proper schedule provided by the OPs but from the very beginning there was problem of overheating and black smoke. The vehicle in question was not carrying weight upto its capacity as well as the vehicle was consuming Mobil oil and OPs always told that it is a new vehicle so after running some kilometres, the problem will be automatically resolved. Complainant got done 1^st service on 11.05.2015 from the OP No.1 and also disclosed about the problem in the vehicle in question, OP No.1 after checking and servicing the vehicle have charged Rs.1109/- as service charges. On 12.09.2015, complainant visited for 2^nd service with OP No.2 and it changed the Assy EGR Valve costing Rs.5875/- and assured that the said problem shall be resolved and vehicle will run properly. Thereafter, 3^rd free service of the vehicle was done by OP No.2 and told the complainant that there is requirement of greasing in the vehicle and charged Rs.394/-. Thereafter, complainant got serviced the vehicle in question on several occasions, but problem remained the same. On 26.10.2016, complainant again visited the OP No.2 with the same problem and with the problem of leakage of Mobil oil. The Assistant Work Manager Ishan Sharma gave assurance to the complainant in written and signed that now onwards this problem will not occur, if it happens then he will be responsible for the same. On 16.11.2016, the complainant was going to sell vegetable in the market to earn his livelihood and the vehicle stopped on the way. Complainant approached OP No.2 and the vehicle was left at service centre alongwith all the vegetables. Officials of the OP No.2, told the complainant that there is a manufacturing defect and the said problem cannot be resolved and the lock system of the vehicle became defective and said vehicle can be opened by any key. The vehicle was returned to the complainant after repair and invoice dated 16.11.2016 was issued to the complainant. On 16.11.2016, the vehicle was again started giving problem so the vehicle in question was left with the OP No.2 and the same was handed over to the complainant on 21.11.2016. The OP No.2 has issued the bill on 22.11.2016 and assured the complainant that the problem of black smoke and leakage of Mobil oil has been resolved. On 02.12.2016, complainant again visited the OP No.2 and without the permission of the complainant the vehicle in question got repaired/open the engine and adjustment regarding piston was made, which clearly shows negligent and deficient service on the part of OPs. Even thereafter, the vehicle in question was not able to run properly and there was some problem of leakage of Mobil oil as well as smoke problem. The vehicle was taken to the OP No.2 on 07.12.2016 and again on 08.12.2016. On 11.12.2016, the complainant was going to sell vegetables and when he reached near village Bijoli, the vehicle stopped in the way and the complainant contacted in the workshop of the OP No.2 as well as at the customer assistance number. The vehicle was taken to service centre by toeing it and there is vehicle in question was also lying in the workshop of the OP no.2. After 16.11.2016, complainant served a legal notice dated 18.11.2016 upon the OPs No.1 to 3, but of no avail. Complainant requested several times to the officials of the OPs to replace the vehicle with the new one, but they paid no heed to the request of the complainant, which clearly shows the negligent service and unfair trade practice on behalf of the OPs. The vehicle is still without warranty and OPs charging money from him without any fault. During the pendency of complaint Cholamandlam financer i.e. OP No.4 has taken the possession of the vehicle of the complainant with collusion with OP No.2 under ex parte order dated 22.12.2017 passed by learned Additional District Judge at Chandigarh. Complainant visited many times to the office of financer and also contacted the employee of OP No.4 to know the where about the vehicle in question and told him that the complainant is regularly paying loan amount taken from the financer, but of no avail. By doing so, OPs have committed deficiency in service. Hence, the present complaint.

2.                Upon notice, OP No.1 appeared through counsel and filed written version raising preliminary objections regarding maintainability, locus standi, concealing of true and material facts from this Forum. On merits, it is stated that the vehicle in question was running properly and there was no manufacturing defect in the vehicle. It is stated that complainant got done first service from OP No.1 and it has properly serviced the vehicle in question and no problem was detected in the vehicle. Denying rest of the allegations for want of knowledge, prayed for dismissal of the present complaint against it with costs.

3.                Upon notice, OP No.2 appeared through counsel and filed written version raising preliminary objections regarding maintainability etc. On merits, it is pleaded that the vehicle in question has already been repossessed and resold by the financer,  thus the complainant does not fall under the definition of Consumer. It is further stated that vehicle was properly attended and complainant had singed the satisfaction note. OP No.2 had done second free service and changed the assembly under warranty and thereafter the vehicle was received on 14.11.2015 and delivered thereafter. The vehicle in question was properly attended on 26.10.2016 and delivered thereafter, but the complainant was informed about the readiness of the vehicle vide letter dated 28.12.2016, but the complainant did not turn up to collect the vehicle and later on its was repossessed by the financer. There is no deficiency on its part and prayed for dismissal of the present complaint against it with costs.

4.                Upon notice, OP No.3 appeared through counsel and filed written version raising preliminary objections regarding maintainability, suppressing and concealing true and material facts, not coming with clean hands, jurisdiction etc. On merits, it is stated that complainant has purchased a TATA Ace vehicle from OP no.1. The relationship between OP No.3 with OP No.1 and 2 is on principal basis and thus, for the act of OP No.1 and 2, the OP No.3 cannot be held liable. The vehicle in question has been purchased for commercial purposes and thus, the complainant cannot claim the status of a consumer under the Act. The complainant is making bald an vague allegations without relying upon any documentary evidence. As per records, maintained by the OP No.3. The complainant brought the vehicle in question for the first time on 11.05.2015 for availing First Free Service at the workshop of OP No.1 and at that time, the complainant did not report any defect in the vehicle in question. It is stated that the complainant has reported the problem of excessive smoke for the first time on 01.06.2016, i.e. after the expiry of warranty period, when the vehicle had covered 25072 Kms. After carrying out necessary repairs, the vehicle was delivered back to the complainant to his entire satisfaction. On 11.05.2015, the assy, oil filter and engine oil were changed, which are consumables are not covered under the warranty. Subsequently, the vehicle was brought on 17.09.2015, for the schedule service. After inspection, it was found that the egr valve is defective and the same was replaced under the warranty and the complainant was not charged Rs.5875/- for replacement of egr valve, rather the complainant was charged for replacement of engine oil and oil filter, which are consumable items and are not covered under the warranty. On 26.11.2015, complainant again brought the vehicle and at that time the washing and greasing was recommended to the complainant and hose (air filter to assy. tube) was cleaned. The vehicle was again brought to OP No.2 on 16.11.2016 at 33324 kms with the complaint of engine oil leakage. After carrying out the necessary repairs, the vehicle was delivered to the complainant on the same day. The vehicle in question was lastly brought at the workshop of OP No.2 on 22.07.2018 at 38921 Kms. As per the terms and conditions of the warranty, the warranty was valid for 1 year and vehicle is question is not under warranty. OP No.3 is not deficiency in service and prayer has been made for dismissal of the present complaint against it with costs.

5.                Upon notice, OP No.4 appeared through counsel and filed written version raising preliminary objections regarding maintainability, not coming to the Forum with clean hands etc. On merits, it is admitted that the vehicle in question has been taken into possession under the order of Learned Court of ADJ, Chandigarh as per las under Section 9 of Arbitration Act because the complainant had not paid the instalments of the vehicle in time. Denying other allegations of the complaint prayed for dismissal of the present complaint against it with costs.

6.                The complainant along with his counsel tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 to C-40 already placed on record in earlier CC No.451 of 2016 tagged with the present complaint and closed the evidence. On the other hand, learned counsel for the OP No.1 tendered affidavit of Shri Pawan Kumar, Authorized person of M/s Pasco Motors, NH-73, Ambala Jagadhari Road, Opp. Gurudwara Dosarka, District Ambala as Annexure OP1/A alongwith documents Annexure OP1/1 & OP1/2 and closed the evidence on behalf of OP No.1. On the other hand, learned counsel for OP No.2 tender in evidence affidavit of Raman Goel, Works Manager of Metro Motors, Village Mohra, Tehsil and District Ambala as Annexure OP2/A alongwith documents Annexure OP2/1 to OP2/8 and closed the evidence on behalf of OP No.2. On the other hand, learned counsel for the OP No.3 tendered affidavit of Sharmendra Chaudhary, Deputy General Manager Law, Tata Motors Limited, 2^nd Floor, Salcon Platina, Opposite Bristol Hotel, M.G. road, Gurugram, Haryana as Annexure OP3/A and closed the evidence on behalf of OP No.3. On the other hand, learned counsel for the OP No.4 tendered in evidence affidavit of Shri Jasbir Rana, Power of Attorney holder of M/s Chola Business Service Ltd., Ambala as Annexure OP4/A alongwith document Annexure OP4/1 and closed the evidence on behalf of OP No.4.

7.                We have heard the learned counsel for parties and carefully gone through the case file.

8.                The learned counsel for the complainant reiterated the version as mentioned in the complaint and prayed for allowing the present complaint.

9.                Similarly, the learned counsel for the OPs reiterated the version as mentioned in their written version and prayed for dismissal of the present complaint against them.

10.              Learned counsel for the complainant has argued that on 15.01.2015 the complainant purchased TATA ACE DICOR bearing registration No.HR58-B-7762 from OP No.1 against bill/Invoice No.PASCMO-R-1415-02272 for a sum of Rs.4,00,000/-. OP No.2 is the authorized dealer of TATA Motors and OP No.3 is the manufacturer. From the beginning vehicle in question was not running properly and was having problem of overheating, black smoke, vehicle in question was not carrying weight upto its capacity and was consuming mobile oil. On 11.05.2015 at the time of first service with the OP No.1, the complainant disclosed about the problem to it and after checking and servicing the vehicle in question it charged Rs.1109/- as service charges. On 12.09.2015, complainant visited to OP No.2 for second free service, where it changed Assy EGR Valve costing Rs.5875/- and assured the complainant that problem is resolved and vehicle will run properly. At the time of third free service, OP No.2 asked the complainant to get the vehicle greased for which it charged Rs.394/-. Thereafter, he got serviced the vehicle in question from the OPs several times, but said problem was not resolved. On 26.10.2016, he again approached OP No.2 with the same problem and with the problem of leakage of mobile oil, where he was assured that problem will not occur again. On 16.11.2016, during his way vehicle in question stopped and the vehicle was left at Service Cente of OP No.2, where he was told that there is a manufacturing defect and said problem cannot be resolved and the lock system of the said vehicle got defective. The vehicle in question was returned to the complainant after repair vide invoice dated 16.11.2016 and on the same day again said vehicle started giving problem, which was again left with OP No.2. On 21.11.2016, vehicle in question was handed over to the complainant and invoice was generated on 22.11.2016. Again on 02.12.2016, complainant visited the OP No.2 with same problem, where without the permission of the complainant OP No.2 repaired the engine by opening the engine of the vehicle, even thereafter problem remained the same. On 11.12.2016, vehicle in question stopped in the way and on contacting the workshop of OP No.2 as well as customer assistance vehicle was taken to the service centre by toeing it and same was lying parked with OP No.2. During the pendency of the complaint OP No.4 in collusion with OP No.2 took the possession of the vehicle in question. Complainant was regularly paying the loan amount and despite his requests vehicle in question was not returned nor repaired. Despite issuance of legal notices to OPs, no action was taken, therefore OPs committed deficiency in service. On the other hand, Ld. Counsel for the OP No.1 has argued that there was no manufacturing defect and vehicle in question was running properly. At the time of first service no defect was found. There is no deficiency on the part of the OP No.1 and the present complaint may be dismissed with costs against it. On the other hand Ld. counsel for the OPNo.2 argued that present complaint is not maintainable as complainant is not consumer at present as he is not owner of the vehicle in question at present. The financer i.e. OP No.4 has repossessed the vehicle in question as per the order dated 22.11.2017 of Hon’ble court of ADJ, Chandigarh and thereafter resold the same. The vehicle in question was properly attended. Complainant was informed about the readiness of the vehicle vide letter dated 28.12.2016, but he did not turn up to collect the vehicle in question and later on it was repossessed by OP No.4. There is no deficiency on the part of the OP No.2 and the present complaint may be dismissed with costs against it. On the other hand, learned counsel for OP No.4 argued that it is manufacturing unit of TATA Motors. The vehicle in question purchased by the complainant was for commercial purpose and therefore he cannot claim the status of consumer. As per the record of OP No.3. complainant brought the vehicle in question for the first time on 11.05.2015 for availing first free service at the workshop of OP No.1 and at that time, complainant did not report any defect in the vehicle in question. Complainant has reported the problem of excessive smoke for the first time on 01.06.2016 i.e. after expiry of warranty. After carrying out necessary repairs, the vehicle was delivered back to the complainant to his entire satisfaction. On 11.05.2015, the Assy. Oil filter and Engine Oil were changed, which are consumables and are not covered under the warranty. There is no deficiency on the part of the OP No.3 and prayed for dismissal of the present complaint against it. On the other hand, learned counsel for the Op No.4 argued that the relationship between the complainant and the OP is pursuant to the contract. Complainant had violated the terms and conditions of the policy.  The vehicle in question had been repossessed by the order of Hon’ble Court of ADJ, Chandigarh as per laws under Section 9 of Arbitration Act because the complainant had not paid the instalments of the vehicle in time. There is no deficiency on the part of the OP No.4 and prayed for dismissal of the complaint against it.

11.              Admittedly, the complainant purchased the vehicle in question from OP No.1 vide invoice No.PASCMO-R-1415-02272 on 15.1.2015 for a sum of Rs.4,00,000/-, which is evident from Retail Invoice dated 15.01.2015 Annexure C-6, & OP No.2 is authorized dealer/service centre of TATA Motors and OP No.3 is manufacturer. From the very beginning the vehicle in question was having problem of overheating, black smoke, consuming Mobil oil and vehicle was not carrying weight upto its capacity. Whereas, the stand of the OPs No.1 to 3 is that there was no manufacturing defect in the vehicle in question and whenever the vehicle in question was brought for service, same was done properly. By making necessary adjustment and problems of the vehicle in question was got resolved. From the perusal of the documents retail invoice dated 11.05.2015 Annexure C-7, invoice dated 12.09.2015 Annexure C-8, service history dated 26.11.2015 Annexure C-9, invoice dated 14.11.2015 Annexure C-10, invoice dated 16.09.2016 Annexure C11, invoice dated 16.05.2016 Annexure C-12, invoice dated 14.10.2016 Annexure C-13, invoice dated 26.10.2016 Annexure C-14, Tax Invoice dated 16.11.2016 Annexure C-16, Tax Invoice dated 22.11.2016 Annexure C17, job card dated 02.10.2016 Annexure C-18, proforma Invoice dated 02.12.2016 Annexure C-19, it is borne out that there was problem of excessive black smoke and despite repairs and replacement of parts, the problem of the vehicle in question was not rectified. The documents referred to above shows that the problem of the vehicle in question cannot be rectified by repairs and replacement of parts which shows the manufacturing defect. Thus, we find force in the contention of the complainant despite several services and the replacement of parts, problem of the vehicle in question was not rectified and there was a manufacturing defect in the vehicle in question.

                   Further the counsel for the complainant contended that the complainant was paying the instalment regularly even though the OP No.4 in connivance with OP No.2 repossessed the vehicle in question and resold the same without issuing any notice to him. On the other hand, OP No.4 has contended that the complainant has violated the terms and conditions of the contract by not paying the loan amount. Thus, the vehicle in question was repossessed under the order dated 22.12.2017, passed by the Hon’ble Court of ADJ Chandigarh, (Annexure OP4/1), on filing the petition under Section 9 of Arbitration Act. However, perusal of the order dated 22.12.2017 passed by the Ld. ADJ, Chandigarh, shows that OP No.4 was ordered to repossess the vehicle in question and to keep the same in the same condition in which it was taken till further orders but the OP No.4 did not act as per the order dated 22.12.2017 and resold the vehicle in question. However, copy of arbitration award has not been placed on record by the OP No.4. Therefore, in absence of any cogent and convincing evidence, we cannot believe that arbitration award has been passed against the complainant. In view of the above said matter, we are of the considered opinion that all the OPs have committed deficiency in service. Thus they are liable to pay the depreciated value of the vehicle in question to the complainant. They are also liable to compensate the complainant for the mental agony and physical harassment caused to him alongwith litigation expenses.

12.              In view of the aforesaid discussion, we hereby allow the present complaint against the OPs in the following manner:-

1. OPs No.1 to 4 are directed to pay the depreciated value of the vehicle in question to the complainant.
2. OPs No.1 to 4 are directed to pay Rs.5,000/- as compensation for mental agony and physical harassment suffered by the complainant.
3. OPs No.1 to 4 are directed to pay Rs.3,000/- as litigation         expenses.

 

 

The OPs are further directed to comply with the aforesaid directions jointly and severally within the period of 30 days from the date of receipt of the certified copy of this order, failing which, the awarded amount shall carry interest @ 9% per annum for the period of default. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 

Announced on: 09.12.2019.

 

 

          (Vinod Kumar Sharma)        (Ruby Sharma)                   (Neena Sandhu)

              Member                             Member                            President