Haryana

Ambala

CC/209/2018

Nanak Chand - Complainant(s)

Versus

Sandhu Brothers - Opp.Party(s)

12 Mar 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case No.:   209 of 2018.

                                                          Date of Institution           :   02.07.2018.

                                                          Date of decision    :   12.03.2021.

 

Nanak Chand aged 56 years s/o Sukh Ram R/o H. No.22, Rangia Mandi, Ambala Cantt, Haryana.

……. Complainant.

                                                Versus

 

1. Sandhu Brothers through its Partners/Proprietors/Owners, Shop No.1467, Ram Bagh Road, Ambala Cantt. (Seller of Aarzoo DLX).
2. Simranjeet Singh, Authorized Signatory, Sandhu Brothers, Shop No.1467, Ram Bagh Road, Ambala Cantt. (Seller of Aarzoo DLX).
3. SKS Trade India Pvt. Ltd. village Rasoi, District Sonipat through its Managing Director/Manager (Manufacturers of Aarzoo DLX).
4. State Bank of India, Loan Branch, Court Road, Ambala City through its authorized officer. (Loanee Bank of Aarzoo DLX)
5. Tata AIG Insurance, through its manager registered office at IIIrd Floor, Shanti Complex, CH,  Ambala Cantt.

     ….…. Opposite Parties.

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Bhupesh Goyal, Advocate, counsel for the complainant.

                   OPs No.1 to 3 already exparte v.o.d. 28.08.2018.

                   Shri S.C.Jaiswal, Advocate, counsel for the OP No.4.

Shri Mohinder Bindal, Advocate, counsel for the OP No.5.

 

Order:        Smt. Neena Sandhu, President.

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 directions to them:-

1. To replace the E Rickshaw of complainant with a new one of same brand.
2. To provide all the documents of vehicle.
3. To not to charge interest and penalty on the loan instalments of the vehicle.
4. To pay Rs.50,000/- as compensation for the mental agony and physical harassment suffered by the him.
5. To pay Rs.1,00,000/- as for the livelihood on the first party is deponent on its earning.
382.  

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

 

 

                   Brief facts of the case are that the complainant is a Senior Citizen and on 25.03.2018, he had purchased an E-Rickshaw i.e. Aarzoo DLX make for Rs.1,23,000/-, engine/motor No.18662, Chasis No.M5FE2PVBL4H01116, vide invoice No.046 from the OPs No.1 & 2. The OP No.3 is the manufacturer of the said vehicle and OP No.5 is the insurer. He purchased the said vehicle after getting it financed from OP No.4, for which documentation was done by the OP No.2. The OPs No.1 and 2 allured him to purchase the E-rickshaw and told him that it is giving better mileage and the life of battery is more than the other E-rickshaws. It was further told that, if the complainant found any problem after its purchase, then he can approach the OPs No.1 to 3 for rectification of the same. In case of any major problem, the vehicle would be replaced immediately. Accordingly, he purchased the said E-rickshaw on 25.09.2018, under a finance scheme of State Bank of India, Ambala. After five days of purchase of E-rickshaw, its Kamani broke down, life of battery after charging became 5 hours only, ring of the front rod was missing, there was rust on all the four tyres and the stepney, there were marks of welding on front rod, paint of the E-Rickshaw started fading. The engine and the body of the vehicle became rusty. The tyres fitted in the said E-rickshaw were old. He complained about the same to OPs No.1 and 2, and they asked him to bring the E-rickshaw to the OP No.1. OPs No.1 and 2 charged Rs.3000/- to repair kamani, the rings of the rod and to paint the front side rod and told the complainant that not to worry and in case of any problem he can approach the OPs No.1 and 2. Complainant requested the OPs No.1 and 2 to provide him the free service of the vehicle in question, but every time they charged for the repair work done by them. By selling an old vehicle instead of new vehicle, the OPs No.1 and 2 have cheated him. It is further stated that complainant paid Rs.20,000/- to the OPs No.1 and 2 for preparation of RC, Pollution Certificate and Insurance etc., but they failed to provide the said documents and lingered on the matter on one pretext of the other. Complainant approached the OPs No.1 and 2 more than 10 times, for removal of the defects occurred in E-rickshaw. Inspite of charging money every time, they failed to rectify the defects occurred in the E-rickshaw. In fact the OPs No.1 and 2 sold him an old E-rickshaw, instead of new one. The OPs No.1 and 2 never gave any benefit of guarantee or warranty to the complainant for the vehicle in question. The E-rickshaw got defective firstly, within 5 days of its purchase, thereafter in first week of April, 10^th April 2018,  mid of April 2018, last week of April 2018,   mid of May, last week of May, 13^th June, 2018, 17^th June, 2018 etc. Complainant approached the OPs No.1 and 2 for repair of vehicle in question, and every time he requested them to issue the job sheet/job card, but they refused to issue  the same. Complainant requested the OPs No.1 and 2 to do the service properly and to rectify the defects occurred in E-rickshaw, but they failed to rectify the defects. Complainant also served a legal notice upon the OPs, but of no avail. Complainant left with no other alternative except to file the present complaint.

2.                 Separate registered notices were issued to OPs No.1 to 3, but none has turned up on their behalf, accordingly they were proceeded against ex parte vide order dated 28.08.2018.

          Upon notice, OP No.4 appeared through counsel and filed written version, raising preliminary objections regarding maintainability, clean hands and suppressed the material facts. On merits, it is stated that, the OP gave the loan under Pardhan Mantri Mudra Yojna, for the purchase of E-Rickshaw on the request of the complainant and as such the complainant secured the loan of Rs.1,08,000/- for the purchase of E-Rickshaw from it. However a sum of Rs.1,04,117-41 is due from the complainant against the said loan. The complainant has filed the present complaint against it with malafide intention just to delay the recovery of loan amount. Rest of the allegations levelled by the complainant were denied for lack of knowledge and prayer has been made for dismissal of the present complaint with costs.

                    Upon notice, OP No.5 appeared through counsel and filed written version, raising preliminary objections regarding maintainability and cause of action. On merits, it is stated that no specific allegations has been levelled against it by the complainant. The grievance of the complainant is only against OPs No.1 to 3. Complainant has alleged that there is manufacturing defect in the said E-rickshaw, thus the complaint filed against it is liable to be dismissed with heavy costs.

3.                To prove the version, complainant tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 to C-22 and closed his evidence. On the other hand, learned counsel for the OP No.4 tendered affidavit of Shri Kunish Vaid, Chief Manager, State Bank of India, SMEC, Ambala City as Annexure OP4/A and closed the evidence on behalf of OP No.4. On the other hand, learned counsel for OP No.5 tendered affidavit of Shri Ashit Gupta, authorized signatory, Tata AIG General Insurance Company Limited, Registered Office, Noida as Annexure OP5/A and closed the evidence on behalf of OP No.5.

4.                We have heard the learned counsel for the complainant and learned counsel for OPs No.4 and 5 and carefully gone through the case file.

5.                 Annexure C-3 is the Tax Invoice dated 25.03.2018, whereby the complainant had purchased the E-rickshaw from the OP No.1 for Rs.1,23,000/-. From the pamphlet Annexure C11/1, it is evident that the subject E-rickshaw was manufactured by the OP No.3. The complainant has contended that the OP No.1 had sold him the old E-rickshaw, which got defective within 5 days from the date of its purchase and after repeated repairs by the OP No.1, defects could not be rectified. To prove that he has placed on record his duly sworn affidavit and photographs of the vehicle in question Annexure C-12 to C-21. This contention of the complainant went un-rebutted as the OPs No.1 to 3 inspite of service preferred not to appear before this Commission and were proceeded against Ex-parte. Therefore, we do not have any reason to disbelieve this contention of the complainant, which is duly supported by his affidavit and other documents. In the complaint, complainant has also contended that he had paid Rs.20,000/- to the OPs No.1 and 2 for issuance of RC, pollution and insurance certificate. However, no document regarding payment of Rs.20,000/- has been placed on record by the complainant, thus this contention of the complainant is not tenable. Further the contention of the complainant that he paid repair charges every time to the OPs No.1 and 2 is also not tenable because nothing has been placed on record to prove the said fact. Since, the E-rickshaw in question got defective immediately after its purchase, it was incumbent upon the OP No.1 being seller, OP No.2 being authorized signatory and OP No.3 being manufacturer to set it right and make it road worthy either by repairing or replacing the defective part(s), but the OPs No.1 to 3 failed to do so, hence we do not hesitate to conclude that to this extent the OPs No.1 to 3 are deficient in providing services and are liable to replace the defective E-rickshaw with the new one. OPs No.1 to 3 are also liable to compensate the complainant for the mental agony and physical harassment caused to the complainant along with litigation expenses. Therefore, we do accept the prayer of the complainant in this regard. However, prayer made for issuance of directions to OP No.4 not to charge interest and penalty for non payment of the loan amount in time cannot be accepted, because complainant is bound by the terms and conditions of the loan agreement and he has to pay the loan amount as agreed upon. As such, we are of the view that the complaint filed by the complainant against OP No.4 is liable to be dismissed. Even the complaint filed by the complainant against OP No.5 is also liable to be dismissed, because neither any specific allegation has been levelled by the complainant against it nor it has been proved.  

6.                In view of the aforesaid discussion we hereby dismiss the present complaint against OPs No.4 and 5 and partly allow the same against OPs No.1 to 3 and direct them in the following manner:-

1. To replace the E-rickshaw of the complainant with the new one of same brand.
2. To pay Rs.5,000/- as compensation, mental agony & physical harassment suffered by the complainant.
3. To pay Rs.3,000/- as litigations expenses. 

 

                   They are further directed to comply with the aforesaid directions jointly and severally, within 45 days from the date of the receipt of the copy of this order. At the same time complainant is also directed to hand over the defective E-rickshaw to the OP No.1 within 7 days from the receipt of the copy of this order. Certified copies 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: 12.03.2021.

 

 

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

              Member                          Member                          President