BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 186 of 2019
Date of Institution: 18.04.2019
Date of Decision : 20.12.2021
Anil Kumar, aged about 38 years son of Shri Ram Nath Bathla, now resident of H. No. 455A, Gali Petrol Pump Wali, Near Petrol Pump, Sirsa, District Sirsa.
……Complainant.
Versus
1. Standard Corporation India Ltd. Standard Chowk Barnala (PB)- 148101 through its authorized person.
2. HDFC Bank Sangwan Chowk, Sirsa through its Branch Manager.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. JASWANT SINGH…………………………PRESIDENT
MRS. SUKHDEEP KAUR…………………MEMBER
Present: Sh. Vikas Kharian, Advocate for complainant.
Sh. Purshotam Phutela, Advocate for opposite party no.1.
Sh. S.L. Sachdeva, Advocate for opposite party no.2.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment under Section 35 of the Consumer Protection Act, 2019) against the opposite parties (hereinafter referred to as Ops) on the averments that op no.1 is indulged in the business of sale of crane having its showroom at Standard Chowk, Barnala (Punjab). Mr. Gagandeep is the agent/ salesman of op no.1 and he visits Sirsa also for sale of the products of op no.1 on first Monday of every month and he also met complainant a number of times at Sirsa. On 02.07.2018, he met complainant at his office at Sirsa and showed the catalog of op no.1 company and made him aware about said crane. At that time, Sh. Satish Kumar son of Sh. Kaur Singh and Sh. Gurpreet son of Sh. Karnail Singh were also present at the office of complainant at Sirsa. On 13.8.2018, said Gagandeep again visited the office of complainant at Sirsa and complainant paid a sum of Rs.11,000/- in advance in the presence of above two persons and he issued order form dated 13.8.2018 at Sirsa. The said agent had also handed over to the complainant a performa invoice dated 18.8.2018 and thus complainant in order to create a permanent source of his income had invested a sum of Rs.14,80,000/- by way of purchase of a crane from op no.1 through said agent Gagandeep. The said crane has been got financed by complainant from op no.2 at Sirsa and same has been delivered to complainant at Sirsa by said agent/ salesman alongwith other workers of op no.1 on 08.09.2018. It is further averred that complainant purchased the crane to earn his livelihood. That at the time of purchase of said crane, the op no.1 had given six months guarantee/ warrantee towards the crane with the assurance of replacement in case of manufacturing defect in the crane. That complainant got the same registered from concerned Registration Authority vide registration No. HR-24AA-3006. It is further averred that after about two months of purchase of crane, same started giving troubles to the complainant as there was mechanical problems in the parts of the crane i.e. Engine, chassis, bone, boom, hydraulic pump and distributor etc. on account of which complainant failed to take proper work from the crane which resulted into less income to him. That number of times, complainant contacted the op no.1 and requested to repair the crane and to make the same defect free but op no.1 made only minor repairs and assured him that in future no such problem will again occur. But the complainant kept on facing the same problems in the crane and therefore, time and again he contacted with op no.1 in this regard but op no.1 kept on avoiding his requests on one false pretext or the other and now about a week ago, the op no.1 has flatly refused to admit the claim of complainant. That on 23.2.2019, complainant also got issued a legal notice to op no.1 but to no effect and op no.1 is guilty of deficiency in service and unfair trade practice. It is further averred that complainant is making payments of installments to op no.2 every month without any default but on account of non functioning of the crane, complainant is unable to earn anything and thus, op no.2 is required to be restrained from claiming the amount of installments from complainant till the crane is put to its functioning properly. Hence, this complaint.
2. On notice, opposite parties appeared. Op no.1 filed written version raising certain preliminary objections regarding no cause of action and no locus standi, maintainability, non joinder and mis joinder of necessary parties and that complainant is not a consumer and does not full the ingredients of a consumer and present complaint does not fall within the ambit of the Consumer Protection Act, as the said hydraulic mobile crane is being used for commercial purpose by the complainant. That this Forum (now Commission) has no jurisdiction to entertain and try the present complaint. The complainant had purchased said hydraulic mobile crane from op no.1 and the bill with regard to the purchase of said crane was issued by op no.1 from Barnala and payment of said crane was made to op no.1 by complainant at Barnala. The registered officer of op no.1 is at Barnal and op no.1 is not having any dealer/ branch office or any other kind of office within the territorial jurisdiction of Sirsa. It is further submitted that said Gagandeep is neither an agent/ salesman nor a dealer of op no.1 and complainant has made a concocted story to create the jurisdiction of this Forum (now commission). On merits, while denying the contents of complaint, it is submitted that said crane was used by complainant for commercial purpose in a rash and negligent manner due to which some defects is being caused in the said hydraulic mobile crane. It is denied that the very purpose of purchase of said crane was to earn the livelihood. Besides the crane in question, complainant is also having other hydraulic mobile cranes which are also used by complainant for commercial use by hiring the drivers to drive the hydraulic mobile cranes. It is further submitted that as and when the complaint was made to op no.1 by complainant, it was duly attended by op no.1, even though, the said defects were due to rash and negligent act of handling of hydraulic mobile crane by driver/ complainant. There is no policy of op no.1 to replace any crane with a new crane or to refund the amount of crane in any case. It is further submitted that if any manufacturing defect is found in any part of the crane, then op no.1 is only liable to repair or to replace that part only. That hydraulic mobile crane is in a good running condition and is functioning properly without any fault and thereby the complainant is earning a lot of money from it. The present complaint has been filed by complainant will ill-motives just to escape the liability to repay the loan. Remaining contents of complaint are also denied and prayer for dismissal of complaint made.
3. Op no.2 filed written version raising certain preliminary objections regarding maintainability, and mis joinder of parties. It is submitted that answering op being a bank had extended a loan to the complainant facilitating the purchase of the vehicle by complainant. An agreement to this effect had been duly executed between the complainant and answering op vide loan agreement No. 83351300 dated 5.9.2018. After disbursal of the loan, the complainant had been paying his installments as per schedule. As circulated on 17th Day of July, 2019, an amount of Rs.8,56,572.28 is outstanding being the foreclosure amount in the event of the complainant seeking to foreclose the loan. It is further submitted that complaint is bad for mis joinder of parties as answering op has been unnecessarily dragged in the matter despite the fact that no deficiency in service has been alleged qua answering op nor any relief sought qua it, hence present complaint is liable to be dismissed out-rightly qua op no.2. It is further submitted that as apparent from the contents of the complaint, the issue in dispute is regarding there been some trouble with respect to the working condition of the vehicle, which has been contended by the complainant as a manufacturing defect. The answering op did not have any concern with the same being simply the financers. It is further submitted that present complaint is not maintainable because the complainant had purchased the vehicle for commercial activities and said factum has been duly conceded by him in the complaint and further the loan taken by him was a commercial loan and thus being so, he does not fall within the purview of the Consumer Protection Act, 1986. It is submitted that vehicle stands hypothecated in the name of answering op. The complainant is making payment of loan installments to the answering op regularly. It is further submitted that as per terms and condition of loan agreement, an amount of Rs.8,56,572.28 is outstanding being the foreclosure amount as on 17.7.2019 in the event of the complainant seeking to foreclose the loan. With these averments, dismissal of complaint qua op no.2 prayed for.
4. Complainant has tendered in evidence his affidavit Ex.CW1/A, copy of legal notice Ex.C1, postal receipt Ex.C2, order form Ex.C3, copy of performa invoice Ex.C4, copy of tax invoice Ex.C4/A, copy of registration certificate Ex.C5, copy of policy schedule Ex.C6 and copy of statement of account Ex.C7.
5. Op no.1 has tendered in evidence affidavit of Sh. Rajesh Kumar, Deputy General Manager (Legal) as Ex.RW1/A.
6. OP no.2 has tendered in evidence affidavit of Sh. Mohinder Sharma, Senior Manager Law authorized officer as Ex.RW2/B and copy of agreement for loan Ex.R1.
7. We have heard learned counsel for the parties and have perused the case file carefully.
8. Learned counsel for complainant while reiterating the contents of complaint has contended that complainant in order to earn his livelihood purchased the crane in question from op no.1 through his agent/ salesman who used to visit Sirsa and the order for purchase of crane was given by complainant to said agent at Sirsa by paying advance amount of Rs.11,000/- and remaining amount was also paid to op no.1 through finance from op no.2 bank from Sirsa. He has further argued that crane was delivered to the complainant by op no.1 at Sirsa with guarantee/ warrantee of six months but the very purpose of purchase of crane in question has been defeated as it developed major defects just within two months and on several complaints to op no.1, it got done some minor repairs in the crane but same has not been made defect free even after repair and complainant is facing same problems in the crane in question and prayed for acceptance of complaint. In support of his contentions, learned counsel for complainant has relied upon decisions of the Hon’ble National Commission in cases titled as Super Computer Centre Versus Globiz Investment Pvt. Ltd. RP No.1086 of 2006 decided on 9.5.2006, Action Construction Equipment Ltd. & anr. Vs. Bablu Mridha, RP No.2079 of 2012 decided on 20.7.2012 and decision of Hon’ble Chandigarh State Commission in case titled as Kapil Kumar Khosla vs. DLF Homes Panchkula Private Limited, Consumer Complaints No. 812 to 818, 940, 942 and 944 of 2016 decided on 5.4.2017.
9. On the other hand, learned counsel for op no.1 has contended that complainant has concocted a false story only to create jurisdiction of this Commission. The crane in question was purchased by him from Barnala (Punjab), its delivery was also received by complainant at Barnala and this Commission at Sirsa has no jurisdiction to try and decide the present complaint. He has further contended that crane is used by complainant for commercial purpose in a rash and negligent manner due to which some defects is being caused in the said crane and as and when the complaint was made to op no.1 by complainant, same was duly attended by op no.1, even though the said defects were due to rash and negligent act of handling of crane by its driver/ complainant. There is nothing on file to suggest that crane is having manufacturing defect and thus, prayed for dismissal of complaint. In support of his contentions, learned counsel for op no.1 has relied upon decision of Hon’ble National Commission in case titled as Gurbaksh Logistic India Vs. Action Construction Equipments Ltd. and anr. FA No., 539 of 2011 decided on 14.3.2012.
10. Learned counsel for op no.2 while reiterating the contents of written version filed on behalf of op no.2 has contended that op no.2 is only financer of crane in question and grievances of complainant regarding defects in the crane are only related to op no.1 being manufacturer for which op no.2 is not responsible at all. He has further contended that complainant is liable to pay loan installments as per loan agreement and prayed for dismissal of complaint.
11. We have duly considered the rival contentions of the parties.
12. The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A in which he has reiterated all the contents made in his complaint. The case of the complainant is that op no.1 is doing business of sale of cranes. On 2.7.2018 Mr. Gagandeep agent/ salesman of op no.1 visited the complainant in his office at Sirsa and demonstrated about their product i.e. crane and the complainant in order to earn his livelihood became ready to purchase the crane of op no.1 through said agent of op no.1. The price of the crane was Rs.14,80,000/- and he paid a sum of Rs.11,000/- as advance to said Gagandeep agent/ salesman of op no.1 at Sirsa for purchase of the crane in question and said Gagandeep also issued an order form dated 13.8.2018 to the complainant at Sirsa. The complainant has placed on file copy of order form dated 13.8.2018 as Ex.C3 in this regard. According to complainant, said crane has been got financed by him from op no.2 at Sirsa and same has been delivered to him at Sirsa by the said agent/ salesman alongwith other workers of op no.1 on 8.9.2018 and the very purpose of purchase of said crane was to earn livelihood.
13. According to complainant, though op no.1 had given six months guarantee/ warrantee of the crane in question and it was promised that in case any defect occurs in the crane within said period of six months from the date of purchase, same shall be repaired without any cost by providing home service and in case such defect shall be found to be manufacturing defect, the crane shall be replaced with new one or in the alternate, the price of the crane shall be refunded to him. However, just about two months of purchase of crane, it started giving troubles in its engine, chassis, bone, boom, hydraulic pump and distributor etc. on account of which the complainant failed to take proper work from the crane which resulted into less income to him. The complainant has further asserted that he has contacted op no.1 number of times and requested to repair the crane and to make it defect free but op no.1 got done only minor repairs therein and every time assured that in future no such problem will again occur in the crane but he kept on facing same problems in the crane and now op no.1 has flatly refused to do anything in the matter.
14. The complainant has placed on record copy of tax invoice dated 5.9.2018 as Ex.C4/A from which it is evident that complainant has purchased the crane in question from op no.1 for a sum of Rs.14,80,000/-. It is also proved on record that said crane has been got financed by complainant from op no.2. The complainant also got insured the said crane from ICICI Lombard General Insurance Company Ltd. for the period 5.9.2018 to 4.9.2019 by paying premium amount of Rs.15,143/- as is evident from copy of policy schedule Ex.C6. The complainant alleges several inherent defects in engine, chassis, bone, boom, hydraulic pump and distributor etc of the crane in question during warranty period of six months.
15. The first and foremost defence plea of op no.1 is that this Commission has no territorial jurisdiction to entertain and try this complaint because complainant purchased the crane from Barnala and delivery was also received by him at Barnala. It is also pertinent to mention here that op no.1 had also moved an application dated 10.6.2019 for deciding the issue regarding jurisdiction of this Forum (Commission) as a preliminary issue which was resisted on behalf of complainant by filing separate reply. But learned counsel for parties on 22.8.2019 stated that application be kept pending and same be heard at the time of final arguments. So, learned counsel for op no.1 has stressed upon its plea taking in the written version as well as in the above said application that this Forum (now Commission) has no jurisdiction to entertain, try and decide the present complaint. But we found no substance in this contention of learned counsel for op no.1. No doubt, the main relief is only against op no.1 regarding defect in the crane in question but complainant has got financed the amount of crane in question from op no.2 and paid the price of the crane in question to op no.1 through op no.2’s branch from Sirsa and has also asserted that complainant is not able to pay installments to op no.2 as his crane is lying useless. We also found no substance in the plea of op no.1 that crane was purchased from Barnala and delivery was also made to complainant at Barnala because in copy of invoice dated 5.9.2018 of op no.1 itself, it is clearly mentioned that crane was to be dispatched at the destination Sirsa meaning thereby that op no.1 delivered the crane in question to the complainant at the address of complainant at Sirsa and not at Barnala. The order for purchase of crane in question was also given at Sirsa to the agent/ salesman of op no.1 and advance money of Rs.11,000/- was also paid to him at Sirsa. The payment of remaining sale consideration was also paid to op no.1 through op no.2 bank from Sirsa. Moreover, complainant is using the crane at Sirsa and alleges that crane became defective in Sirsa District and therefore cause of action to the complainant has arisen at Sirsa and therefore, this Commission has every jurisdiction to decide the present complaint and therefore, plea of op no.1 that this Commission has no jurisdiction is without any merit and is hereby rejected.
16. The next contention of learned counsel for op no.1 is that complaint is not maintainable as complainant purchased the crane for commercial purpose, but again we found no substance in this contention of learned counsel for op no.1 because the complainant has categorically stated that he purchased the crane in question to earn income i.e. livelihood. The Hon’ble National Commission in case titled as Action Construction Equipment Ltd. & anr. vs. Bablu Mridha (supra) has held that “Consumer Protection Act, 1986 Sections 2 (1) (d), 2(1) (f), 2(1) (g) and 21(b)- Machines- Defects- Replacement and compensation directed by forum- Respondent is having only two machines and same are being used by the respondent for earning his livelihood, by no stretch it can be said that respondent is engaged in commercial activities- Impugned order upheld.” The said authority is fully applicable in this case because op no.1 has failed to prove on record that crane in question has been purchased by complainant for commercial purpose and not for earning livelihood.
17. Now with regard to main contention of complainant regarding defects in the crane, the op no.1 has denied the allegations of complainant in this regard and has submitted that said hydraulic mobile crane is in a good running condition and is functioning properly without any fault. However, op no.1 has not proved the said fact by leading cogent and convincing evidence that crane in question is not having any defect and is in good condition. The op no.1 could have placed on record report of its expert engineer/ mechanic to prove the fact that crane in question is in good condition and has no manufacturing defect but op no.1 has failed to do so. But at the same time it is also well settled principle of law and fact cannot be ignored that without any expert opinion regarding manufacturing defect in the crane, it cannot be said that crane in question is having manufacturing defect and same is not repairable. The complainant has also not placed on file any expert opinion to prove manufacturing defect in the crane in question. Moreover, complainant in the relief clause has also sought direction to the op no.1 to repair the crane and to make it defect free or in the alternate to replace the same with new one or to make refund of the price of the amount of the crane. In these circumstances, op no.1 is at first instance is liable to repair the crane in question and to make it defect free without any charges from complainant.
18. In so far as liability of any kind of op no.2 is concerned, according to op no.2 complainant is making payment of loan installments to op no.2 regularly and an amount of Rs.8,56,572.28 is outstanding against the complainant. Since the op no.2 has advanced loan amount to the complainant for purchase of crane in question, therefore, complainant is liable to repay the same as per terms and conditions of loan agreement and due to any lapses on the part of op no.1 i.e. manufacturer, op no.2 cannot be held liable for the same.
19. In view of our above discussion, we allow this complaint against opposite party no.1 and direct the opposite party no.1 to carry out necessary repairs in the crane in question of complainant and to make it defect free even by replacing any defective part of the crane in question with a new one without charging any amount from the complainant. Further, in case it is found by experts of op no.1 that crane in question is not repairable for any reason and is having any manufacturing defect, then op no.1 will be liable to replace the crane in question with a new one of same make and model after completion of all the formalities regarding replacement of crane from complainant/ op no.2. In case it is found that same make and model of the crane is not available with op no.1, then op no.1 will be liable to make refund of the price i.e. to clear loan amount of op no.2 and remaining amount will be paid to the complainant as complainant has also made repayment of some loan amount to op no.2 in installments. We also direct the op no.1 to pay a sum of Rs.25,000/- as compensation for harassment to the complainant and an amount of Rs.11,000/- as litigation expenses to the complainant. However, complaint against op no.2 is dismissed. The op no.1 is directed to comply with this order within a period of 45 days from the date of receipt of copy of this order. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Commission. Member President,
Dated: 20.12.2021. District Consumer Disputes
Redressal Commission, Sirsa.
Typed by:
Jagdish Kumar (Stenographer)
