Madhya Pradesh

StateCommission

A/17/2139

FORCE MOTORS - Complainant(s)

Versus

PHOOLCHAND JHARIYA - Opp.Party(s)

SH.J.S.PARMAR

17 Jul 2023

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                         

                             PLOT NO.76, ARERA HILLS, BHOPAL

 

                                      FIRST APPEAL NO. 2139 OF 2017

(Arising out of order dated 27.09.2017 passed in C.C.No.346/2012 by District Commission, Jabalpur-2)

 

FORCE MOTORS LIMITED,

THROUGH AUTHORISED ENGINEER,

AKURDI, MUMBAI PUNE ROAD, PUNE (MS)                                                                          … APPELLANT.

 

                        Versus

 

1. PHOOLCHAND JHARIA,

    S/O SHRI HALKAR JHARIA,

    R/O INDANA, ANIMAL HOSPITAL,

    VILLAGE-SUHEJANI, TEHSIL-PANAGAR,

    DISTRICT-JABALPUR (M.P.)

 

2. AGRAWAL MOTORS,

    OFFICE-JEEWAN COLONY, BALDEV BAGH,

    JABALPUR,

    SHOWROOM-OPPOSITE JAYANTI TALKIES,

    JABALPUR (M.P.)

 

3. MAHINDRA & MAHINDRA FINANCE CO.LTD.

    MEDICAL ROAD, MAHANADDA, JABALPUR (M.P.)                        …. RESPONDENTS.   

                     

BEFORE :

            HON’BLE SHRI A. K. TIWARI                : PRESIDING MEMBER

            HON’BLE DR. SRIKANT PANDEY        :          MEMBER

                     

COUNSEL FOR PARTIES :

                Shri J. S. Parmar, learned counsel for the appellant.

           None for the respondents no.1 and 2.

           Shri Sunil Pandey, learned counsel for the respondent no.3.

 

 O R D E R

(Passed On 17.07.2023)

                                The following order of the Commission was delivered by A. K. Tiwari, Presiding Member: 

           

                   This is an appeal by the opposite party no.1/appellant against the order dated 27.09.2017 passed by the District Consumer Disputes

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Redressal Commission, Jabalpur-2 (for short ‘District Commission) in C.C.No.346/2012 whereby the complaint filed by the complainant/respondent no.1 has been allowed.

2.                The facts of the case as stated by the complainant/respondent no.1 in his complaint are that he had purchased a vehicle Pick-up Van bearing registration MP-20 LA-3502 from the from the opposite party no.2/respondent no.2-dealer (hereinafter referred to as ‘dealer’) for a sum of Rs.3,25,190/- after getting it financed from the opposite party no.3/respondent no.3-financer (hereinafter referred to as ‘financer’). The subject vehicle is manufactured by the opposite party no.1/appellant-manufacturer (hereinafter referred to as ‘manufacturer’). The complainant/respondent no.1 alleged that the subject vehicle was suffering from manufacturing defects as since after its purchase started giving trouble repeatedly and despite efforts, the opposite parties failed to remove the defects. He took the vehicle six times in a year to the service center. Even the vehicle is in warranty period, he incurred Rs.60,000/- to Rs.70,000/- in its repairs.  Alleging deficiency in service on part of opposite parties, for selling defective vehicle to the complainant, he filed a complaint before the District Commission seeking relief.  

3.                The opposite party no.1 resisted the complaint stating that the complainant is using the vehicle for commercial purpose and continuously

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earning profits and therefore he does not fall under the category of ‘consumer’ as defined under the Consumer Protection Act, 1986 (hereinafter referred to as ‘Act’). It is submitted that opposite party no.2 is their authorized dealer and the relationship between the opposite party no.1-manufacturer and the opposite party no.2-dealer was on principal to principal basis.  The manufacturer is not aware of sales dealing transactions between the complainant and the dealer. As per service record maintained, the dealer has provided services to the vehicles during warranty period and also replaced the parts, required to be replaced due to normal wear and tear free of cost under the warranty period.  The complainant did not avail fourth free service in prescribed service schedule. The manufacturer has a well-established quality control procedure and only after rigid quality control test the vehicles are cleared for sale in market. The vehicle was not having any manufacturing defect.

4.                It is further submitted that the problems and complaints as alleged may take place due to several other reasons beyond the control of manufacturer and the dealer like lack of proper maintenance of the vehicle, driving habits, road conditions, oil & fuel quality, weight of the load put on the vehicle etc. Upon observation of subject vehicle, it was revealed that the vehicle was repaired at unauthorized workshop, which shows negligence of complainant and violation of terms and conditions of the warranty. Since

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after its purchase, the complainant had run the vehicle for 28,630 km. The complaint is frivolous and vexatious and is liable to be dismissed.

5.                The opposite party no.2-dealer did not file reply to the complaint and therefore, the District Commission closed the right to file reply on 18.09.2013.

6.                The opposite party no.3-financer by filing reply to the complaint has submitted that the dispute is between the complainant and the manufacturer & dealer and the complainant sought relief against them. The opposite party no.3 is only financer who helped the complainant in financing the subject vehicle. There are dues on the complainant. In such circumstances, the complaint is not maintainable against the financer. It is thus prayed that the complaint be dismissed with costs.

7.                The District Commission allowed the complaint holding the opposite party no.1 & 2 deficient in service and had committed unfair trade practice. The District Commission directed the opposite party no.1 & 2 jointly and severally to pay Rs.3,35,100/- the cost of the vehicle with interest @ 8% p.a. from the date of filing of complaint i.e. 27.07.2012 till payment. Compensation of Rs.3,000/- along with costs of Rs.2,000/- is also awarded.

8.                Heard learned counsel for the appellant-manufacturer and the financer as none appeared for the complainant and the dealer. Perused the record.

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9.                Learned counsel for the appellant-manufacturer argued that the District Commission without any expert report relying on the statements of the complainant passed the impugned order which is not just and proper. The complainant did not follow the instructions mentioned in owner’s manual and service book. The complainant overloaded the vehicle more than the permissible capacity. On inspection of vehicle by the service engineers, it was found that in order to increase the capacity of load, the body of the vehicle was extended. The complainant had already run the vehicle for 28,630km. The District Commission has not considered the aforesaid facts. He therefore argued that the impugned order deserves to be set-aside. He placed reliance on the decision of this Commission in First Appeal No.214 of 2021 Force Motors Limited Vs Deceased Kailash Rai Through LRs. Decided on 03.01.2023.

10.              Learned counsel for the respondent no.3-financer argued that the financer has nothing to do with the present dispute. The dispute is between the complainant and the manufacturer & dealer about the defects in the subject vehicle. They have only financed the subject vehicle and still there are dues against the complainant/respondent no.1.

11.              The complainant has filed his affidavit in support of his complaint. On behalf of opposite party no.1-manufacturer, an affidavit of Shri Tapash Mukherjee along with conditions of warranty policy has been

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filed. On behalf of opposite party no.2-dealer an affidavit of Shri Shekhar Agrawal has been filed. On behalf of opposite party no.3-financer, an affidavit of Vinay Sharma, Territory Manager has been filed.

12.              We have carefully perused the complaint, reply, affidavits and documents filed by the parties. The first and foremost question involved in the matter is that whether the complainant is a consumer or not. The opposite party no.1-manufacturer raised this objection in its reply but the District Commission did not consider this important aspect. In paragraph 8 of the complaint, the complainant has submitted that he had purchased the said vehicle for his business and since the vehicle is not running properly, he had to face financial problem. In his complaint he has nowhere mentioned that he had purchased the subject vehicle for the purposes of earning his livelihood by means of self-employment.  Thus we find that the complainant does not fall under the category of ‘consumer’ as defined under Section 2(1) (d) of the Act. The District Commission has committed grave error in entertaining and allowing the complaint without deciding this issue.

13.              On going through the complaint, we find that the complainant has specifically mentioned in his complaint that he had purchased the said vehicle for carrying stones from the mines and he is doing that business for the purposes of earning his livelihood by means of self-employment. Thus we find that he is a consumer. 

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14.              The second point involved in the matter is regarding manufacturing defect. So far as the allegation of the complainant that immediately after its purchase the vehicle started giving trouble is concerned, we find that whenever the vehicle was taken to the workshop with complaints in the vehicle, was attended and removed by the opposite parties.

15.              It is pertinent to mention here that the complainant failed to bring any expert evidence regarding manufacturing defect in the vehicle. The onus was on the complainant to prove that the subject vehicle was having manufacturing defects specifically when there are provisions under Section 13 (1)(c) of the Act. The complainant ought to have submitted the report after thorough inspection of the vehicle by the appropriate laboratory.

16.              Section 13(1)(d) of the Act clearly specifies “before any sample of the goods is referred to any appropriate laboratory under clause (c), the District Forum may require the complainant to deposit to the credit of the Forum such fees as may be specified, for the payment to the appropriate laboratory for carrying out necessary analysis or test in relation to the goods in question.”

17.              It is the duty of the complainant and not of the opposite parties to get the vehicle examined by some expert/appropriate laboratory to substantiate his allegation regarding manufacturing defect. It is the

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complainant who had alleged manufacturing defect in the vehicle then he should have come forward to get the vehicle examined. There is no such application put forward by the complainant to the District Commission that he wants to get the vehicle examined by some expert or appropriate laboratory to establish that the said vehicle was having manufacturing defects.

18.              From the record, we find that for want of expert evidence it cannot be concluded that the subject vehicle was having manufacturing defect as the complainant himself was negligent in not getting the vehicle examined by some expert or appropriate laboratory regarding alleged manufacturing defect in the vehicle.

19.              In view of the above discussion, we find that the complaint is liable to be dismissed on both grounds as the complainant is not a consumer and in absence of any expert report, it cannot be concluded that the subject vehicle was having manufacturing defect. The District Commission has committed grave error in considering the complainant as a consumer and in holding the opposite parties guilty of deficiency in service and unfair trade practice in absence of any expert report.

20.              Thus we find that the impugned order cannot be sustained in the eyes of law. It deserves to be and is hereby set-aside.  

 

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20.              In the result, the appeal is allowed. Consequently, the complaint is dismissed.  No order as to costs.

 

                  (A. K. Tiwari)                          (Dr. Srikant Pandey)

            Presiding Member                             Member