Complainant Naresh Mahajan has filed the present complaint against opposite parties (for short O.P.) U/S 12 of the Consumer Protection Act, 1986 with a prayer that opposite parties may be ordered to make payment of Rs.1,00,000/- i.e. amount illegally charged from him towards repair cost of the vehicle alongwith interest @ 18% per annum with heavy cost. Opposite parties be further directed to pay an additional amount of Rs.60,000/- on account of mental agony, harassment and inconvenience suffered by him at their hands and Rs.25,000/- towards litigation charges.

2.     The case of the complainant in brief is that he is owner of Black Coloured Non-Transport LMV Car/Vehicle Duster RXL (D) bearing Registration No.PB-35S-6414, Model 2013 manufactured by opposite party no.1. The said vehicle was used by him for his personal use and for going to his business tours and he was earning his livelihood by the use of said vehicle. The said vehicle had the problem of coolant leakage from the reservoir tank. Presence of required amount of coolant in the reservoir tank ensures that engine of the vehicle is not overheated. Apprehending the gravity of problem that could cause serious damage to the engine of the said vehicle, he and his driver visited the service centre of opposite party no.2 on 2 August 16 around 10:15 Am for the rectification of this defect and also asked to get the routine servicing of the vehicle. Besides explaining the problem of coolant leakage to the officials of opposite party no.2, he got it clearly mentioned on the job card and handed over his vehicle to them. He and his driver kept on waiting for his vehicle in the visitor’s lounge as the public entry was restricted at the place where actually repair was being carried out.  Opposite party no.2 furnished the Invoice No.SERINVCJLJA 17001155 dated 2 August 2016 amounting to Rs.9,999/- before him. The opposite party no.2 informed him that the problem of the coolant leakage had been fully rectified and service of the vehicle has been properly conducted and there remains no fault in the vehicle. After the payment of demanded amount, he took his vehicle and started back for his home at Pathankot at a distance of about 120 KM. When he and his driver were about to reach his destination, the said vehicle stopped abruptly.  He asked his driver to check the fault visually. After opening the bonnet of vehicle he was shocked to see that there was no coolant in the reservoir. The whole of the coolant was leaked and some kind of steam was emanating from the engine. He immediately called opposite party no.2 on cell phone and opposite party no.2 advised him to take the vehicle to his house without ignition. He took the vehicle to his house by towing. The opposite party no.2 assured him that the whole of the repair including pick up facility, would be done free of cost because the problem has occurred within a very short time of its rectifications. He has further pleaded that on 3 August 2016 he had informed the opposite party no.1 and appraised them about the deficiency of service on the part of the opposite party no.2 on its email address and also registered a complaint at the online portal. The officials of the opposite party no.2 had been assuring him till 7 August 2016 that the vehicle would be repaired free of cost because the fault has been occurred within a very short span of its rectification but opposite party no.2 kept on dilly-delaying for picking up the vehicle to their service centre at their own cost. So, he was compelled to bear his own expenses to send his vehicle to the opposite party no.2 about 120 KM away on 8 August 2016. After examining the vehicle completely, officials of opposite party no.2 informed the complainant on 17 August 2016 they are not responsible for the fault because it has been occurred due to the non genuine cap used by him on the coolant reservoir and due to the non genuine cap the whole of the coolant got leaked resulting into the complete damage of the engine. The opposite party no.2 had prepared an estimate for the repair of the said vehicle to the tune of Rs.80,730/- Part Cost + Rs.11,000/- for outside job + Rs.7000/- Service App i.e. Rs.98,730/- _ Taxes and furnished on 26 August 2016 but it was not according to his loss. Mr.Gaurav Negi called him and offered to replace the engine of his vehicle with sealed pack new engine instead of replacing its defective parts and assured to deliver the vehicle on or before 7 October 2016. Opposite party no.2 took undue time to replace the engine of the vehicle causing incessant hardships to him and the vehicle was delivered after 78 days of harassment on 18 October 2016 and he was compelled to make payment of Rs.1,00,000/- but no repair was carried out, engine of the vehicle replaced with the new sealed engine and there was deficiency on the part of the opposite party no.2. He paid the demanded amount of Rs.1,00,000/- vide receipt No.1361W dated 18 October 2016. He insisted for the complete invoice but the opposite party no.2 failed to supply the same. The defect in his vehicle was occurred due to the negligence of opposite party no.2 and they had wrongly charged the amount of Rs.1,00,000/- for their own deficiency from him. After getting the delivery of vehicle, he again asked the opposite party No.1 to get the illegally charged from him refunded from the opposite party No.2, but all in vain. He requested the opposite party no.2 several times to issue the invoice in respect of his vehicle but all in vain and lastly opposite party no.2 issued the invoice on 29 November 2016 i.e. after 42 days of the payment of requisite amount. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.

3.      On notice, opposite party no.1 appeared through its counsel and filed its written statement taking certain preliminary objections. On merits, it was submitted that the complainant has categorically admitted that the complainant was using the vehicle for commercial purpose by using it to earn livelihood, however, the same was not by way of self employment and instead the vehicle was being driven by a driver. It is therefore clear that the vehicle was being used to earn profits and therefore, the complainant is not eligible to file the consumer complaint. It was further submitted that the opposite party is only the manufacturer and has no role or knowledge in the repair and servicing of the vehicle. The legal relationship between the opposite party and opposite party no.2 is on principal to principal basis and therefore the actions of the opposite party no.2 are in its independent and individual capacity and opposite party cannot be held responsible for the same.  All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.         Notice issued to opposite party no.2 had been received back with the report of ‘Refusal. Case called several times but none had come present on behalf of opposite party no.2, therefore, it was proceeded against exparte vide order dated 29.03.2017.

5.      Counsel for the complainant tendered into evidence affidavit of complainant Ex.C-I and of Sh.Vishal Sethi Ex.C-2, along with the other documents exhibited as Ex. C3 to Ex.C12 and closed the evidence.

6.     On the other hand, counsel for the opposite party no.1 tendered into evidence affidavit of Sh.Hima Bindu Authorized Representative Ex.OP-1/1 and closed the evidence

7.      We have carefully examined all the documents/evidence produced on record for its contained statutory merit and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for some of the documents that have been somehow ignored to be produced by the contesting litigants. We observe that the instant dispute did prompt at the alleged failure of the OP2 Vendor to afford the allegedly promised one free-repair and delivery on time (Affidavit Ex.C1) of the complainant’s Car Duster Renault Make that broke down near Pathankot while being driven back after the first repairs at the OP2 workshop at Jalandhar. Further, the OP1 Manufacturer had allegedly assured the complainant to fit one ‘packed’ fresh engine to his car, free of cost, but the OP2 vendor had charged Rs 1.00 Lac towards the same.

8.       On the other hand, the OP1 manufacturers vide their written reply (as duly accompanied with the affidavit Ex.OP1/1) have questioned the forum’s territorial jurisdiction to entertain the present complaint U/s 11(2) in the absence of any representative and/or branch office of the opposite parties at Pathankot/Gurdaspur. However, the instant objection gets annulled since the Car had broken-down near Pathankot giving rise to part ‘cause of action’ within the territorial jurisdiction of the forum and thus awarding the requisite ‘admissibility’ to the present complaint vide section 11(2)(c) of the C P Act. Further, the OP1 has contested the statutory status of the complainant as ‘consumer’ as the purchased vehicle was admittedly purchased for personal use and as well for business tours i.e., commercial purpose but that also gets annulled in the light of the declaration of ‘earning livelihood’ as having duly made in the complaint, itself.

9.       We find that the complainant has produced his evidence vide affidavits Ex.C1 and Ex.C2 along with the documents Ex.C3 to Ex.C12 but have failed to produce any cogent evidence supporting his allegations of the OP2’s admittance of faulty repairs and the OP1’s assurance of ‘packed engine’ free of cost. Rather, the produced copy of the e-mail (Ex.C11) proves that the complainant was committed to bear 25% of the repair costs since the Car had already clocked ‘one lac kms’ and had been past the ‘warranty’ cover (purchased on 14.06.2013 brought for instant repairs on 08.08.2016) and the said repairs/pack-engine replacement at the OP2 workshop had been an outcome gesture of courtesy and goodwill at the instance of the OP1 manufactures whereas the complainant had paid Rs 1.00 Lac as his 25% share, only to honor his self-consented commitment and also to get back the Car. 

10.     Thus, we observe that the complainant has failed to prove/place on record that the OP vendor did fail to repair and deliver back the Car whereas somehow the OP2 vendor has also failed to participate in the present proceedings to prosecute its defense of not being guilty. However, we appreciate the assistance rendered by the learned counsel for the OP1 manufacturers, to the forum in delivering justice to the participating as well to the absentee parties.

11.     In the light of the all above, we find that the instant complaint has been bereft of the requisite statutory actionable merit and thus ORDER for its dismissal with however no orders as to its costs.

12.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

                                                                              (Naveen Puri)

                                                                                    President      

ANNOUNCED:                                                             (Jagdeep Kaur)

January 19, 2018                                                           Member

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