BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.

                                                  Consumer Complaint no. 284 of 2019                                                            

                                                    Date of Institution:          27.05.2019

                                                  Date of Decision    :     18.10.2021

Uggersain aged about 33 years son of Shri Rajender Singh, resident of village Kharian, Tehsil Rania, District Sirsa.

                     ……Complainant.

                                        Versus

1. Standard Corporation India Ltd. Standard Chowk Barnala (PB)- 148101 through its authorized person.

2. Indusind Bank Ltd. Janta Bhawan Road, Near Anaj Mandi, Sirsa District Sirsa.

                                                                        ...…Opposite parties.

  Complaint under Section 12 of the Consumer Protection Act,1986.

Before:        SH. JASWANT SINGH…………………………PRESIDENT

MRS. SUKHDEEP KAUR…………………MEMBER

Present:        Sh. Vikas Kharia, Advocate for complainant.

Sh. Kapil Kumar, Advocate for opposite party no.1.

Sh. H.S. Raghav, 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 11.6.2018, 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. Mangtu Ram son of Sh. Nait Ram was also present there. On 30.7.2018, said Gagandeep made visit to the office of complainant at Sirsa and complainant paid a sum of Rs.10,000/- in advance in the presence of above two persons and he issued order form dated 31.7.2018 at Sirsa. The said agent had also handed over to the complainant a performa invoice dated 31.7.2018 and thus complainant in order to create a permanent source of his income had invested a sum of Rs.12,82,000/- 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 23.8.2018. 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-0822. 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 8.2.2019, complainant also got issued a legal notice to op no.1 but to no effect and ops are guilty of deficiency in service and unfair trade practice. Hence, this complaint.

2.       On notice, opposite parties appeared. Op no.1 filed written version raising certain preliminary objections that complaint is neither maintainable, nor sustainable in the eyes of law. The complainant does not fall under the definition of Consumer as defined under the Consumer Protection Act. The crane was purchased for the commercial purpose which is excluded from the provisions of Consumer Protection Act and as such same is liable to be dismissed with special costs on this score alone. That complainant has purchased the Crane from Barnala (Punjab). The delivery was also received at Barnala and as such this Forum has got no territorial jurisdiction to try and decide the present complaint against answering op. The answering op has provided six months warranty to the above said Crane as per warranty clause of the company. During warranty period, the op no.1 has provided all warranty services to the complainant at his door step. The warranty clause does not include any accidental loss, damage and consumables. The answering op is not responsible for any accidental loss to the Crane in any manner and is not responsible after the lapse of warranty period. On merits, it is submitted that it is incorrect that answering op has received an advance of Rs.10,000/- through his agent. The company received all the payment at Barnala and vehicle was handed over to complainant at Barnala. The op no.2 has been impleaded as party to complaint only to create the false jurisdiction at Sirsa. All other contents of the complaint are also denied and prayer for dismissal of complaint made.

3.       Op no.2 filed written version raising certain preliminary objections that complaint is not maintainable in its present form as there is loan agreement between the parties which contains arbitration clause regarding any dispute between the parties and as per terms and conditions of agreement, the matter should be referred to sole arbitrator. That complaint is false, frivolous and does not disclose any cause of action against op bank and is filed only to harass the op bank and that complainant has got no locus standi to file complaint. That complaint is bad for mis joinder and non joinder of necessary parties. The op bank is not at all necessary and proper party to the present complaint because the op bank is only financer of the vehicle and grievances of complainant as alleged in complaint are against only  op no.1 being manufacturing of vehicle due to manufacturing defect. The complainant is legally and contractually bound to pay the monthly loan installments as per terms and conditions of the loan agreement dated 16.8.2018 executed between complainant and bank. On merits, the plea taken in the preliminary objections are reiterated and prayer for dismissal of complaint made.

4.       The complainant has tendered in evidence his affidavit Ex.CW1/A, copy of legal notice Ex.C1, postal receipt Ex.C2, order form dated 31.7.2018 Ex.C3, copy of statement of account Ex.C4, copy of risk assumption letter of ICICI Lombard General Insurance Company Limited with policy schedule Ex.C5, copy of tax invoice dated 16.8.2018 Ex.C6.

5.       Op no.1 has tendered in evidence affidavit of Sh. Satvinder Singh Deputy Legal Manager/ authorized signatory Ex.R1, (Ex.R2 left) copy of performa invoice dated 7.8.2018 Ex.R3, copy of tax invoice dated 16.8.2018 Ex.R4, copy of customer satisfaction report Ex.R5, copy of customer satisfaction report Ex.R6 and copy of field service report dated 21.2.2019 Ex.R7.  

6.       Op no.2 has tendered in evidence affidavit of Sh. Sunil Kalra, Legal Manager as Ex.RW2 and copy of statement of account as Ex.RA.

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.10,000/- and remaining amount was also paid to op no.1 through finance directly 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 complaint 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.207 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 although complainant has not sought any relief against op no.2 bank which is situated at Sirsa but only for point of jurisdiction at Sirsa, op no.2 has also been impleaded as a party in the complaint and this Commission has no jurisdiction to try and decide the present complaint. He has further contended that crane was purchased by complainant for commercial purposes and as such present complaint is not maintainable in the present form.  He has further contended that during six months warranty period of the crane in question, complainant has been provided all warranty services to him at his door stop and warranty clause does not include any accidental loss, damage and consumables. The op no.1 is not responsible for any accidental loss to the crane in any manner and is not responsible in any way after lapsing of warranty period. 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, decision of Hon’ble State Commission, Haryana, Panchkula in cases titled as M/s Metro Motors Pvt. Ltd. vs. Krishna Co-op. Transport Society Ltd. FA No.471 of 2016 decided on 16.5.2018, Jan Mohammad vs. Magma HDI General Ins. Co. Ltd. Complaint No. 258 of 2016 decided on 16.5.2018 and decision of Hon’ble Chandigarh State Commission (U.T) in case titled as Shri Ajit Singh Longia vs. M/s Action Construction Equipment Private Limited, Appeal No. 174 of 2002 decided on 10.12.2002.  

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 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 30.7.2018 Mr. Gagandeep agent/ salesman of op no.1 visited the complainant in his office at Sirsa in connection and demonstrated about their product i.e. crane and the complainant in order to earn some income became ready to purchase the crane of op no.1 through said agent of op no.1. The price of the crane was Rs.12,82,000/- and he paid a sum of Rs.10,000/- 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 31.7.2018 to the complainant at Sirsa. The complainant has placed on file copy of order form dated 31.7.2018 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 works of op no.1 on 23.8.2018 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 16.8.2018 as Ex.C6 from which it is evident that complainant has purchased the crane in question from op no.1 for a sum of Rs.12,92,000/-. From the copy of statement of account Ex.C4 placed on file by complainant, it is also evident that said crane has been got financed from op no.2. The complainant also got insured the said crane from ICICI Lombard General Insurance Company Ltd. for the period 17.8.2018 to 16.8.2019 by paying premium amount of Rs.14,159/- as is evident from copy of letter of insurance company alongwith policy schedule Ex.C5. 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 and only to create jurisdiction of this Commission at Sirsa, op no.2 has been impleaded as a party in the 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. The complainant has also sought relief against op no.2 that it should be restrained from claiming the amount of installments from complainant till decision of complaint, therefore, it cannot be said that complainant in order to create only jurisdiction at Sirsa has impleaded op no.2 as a party in this case. Moreover, this is the requirement of law that each and every party concerning with subject matter should have been impleaded for just and proper decision of the case. 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 16.8.2018 of op no.1 itself, it is clearly mentioned that crane was to be dispatched at the destination of village Kharian i.e. in the village of complainant meaning thereby that op no.1 delivered the crane in question in the village of complainant at Kharian 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.10,000/- was also paid to him at Sirsa. Moreover, the 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 refuted the allegations of complainant on the ground that complainant was provided six months warranty regarding crane in question as per warranty clause of company. During the warranty period, the complainant has been provided all warranty services at his door step and warranty clause does not include any accidental loss, damage and consumables. The op no.1 has further asserted that op no.1 is not responsible for any accidental loss to the crane in any manner and is not responsible after lapse of warranty period. However, op no.1 has not led any corroborative and documentary evidence to prove that crane in question suffered defects/ damage due to any accident. The op no.1 has not produced on record any expert opinion to prove that crane in question is not having such defects as pointed out by the complainant or that the defects pointed out by complainant in the crane are result of any accident. Rather, from the own document of op no.1 placed on file by op no.1 i.e. field service report dated 21.2.2019 Ex.R7 it is evident that during warranty period of six months as crane was delivered on 16.8.2018, its boom was removed and new boom was got installed, section tube was changed, its flexible pipe was changed and there were faults of first axel, chassis problem, hydraulic pump, distributor problem, front hook, main frame, engine consumes mobile, diesel pump and cabin problem. The op no.1 has not placed on file any documentary evidence or any expert report on the file to prove that after pointing out of above defects and replacement of above parts, the crane in question is working properly and is not having any defect. Though op no.1 has also placed on record copies of two customer satisfaction report Ex.R5 and Ex.R6 which allegedly bears the signature of complainant but both these documents are without any date, so it cannot be said that on what date complainant gave satisfaction report regarding his crane in question, rather it appears that signatures of complainant have been obtained on blank proforma regarding customer satisfaction report in order to create evidence that customer has given his satisfaction report. In field service report dated 21.2.2019 Ex.R7 the complainant has pointed out above said nine major defects in the crane in question and the op no.1 has not taken any action on these defects and even has not disclosed that the crane in question is not having such defects as pointed out by the complainant, rather it is proved on record that op no.1 has got done minor repairs of boom changed, section tube changed, flexible pipe changed in the crane in question but has not taken any action on the faults pointed out by the complainant. So, in absence of any mechanical report/ expert opinion that crane is not having such major defects as pointed out by complainant and that after making such repairs as mentioned in the field service report, there is no other defect in the crane, it is proved on record that op no.1 has failed to provide after sale services to the complainant within warranty period. It is also proved on record that crane in question is having inherent defects as its major parts have gone out of order within warranty period, therefore, plea of op no.1 that warranty has lapsed has no substance. Rather we found that op no.1 is indulged in unfair trade practice and has also caused deficiency in service towards the complainant as if the crane was not found defect free after repairs, then op no.1 was under legal obligation either to replace the same with new one or to refund the price of the crane in question as complainant has spent such a huge amount for purchase of the same but could not take any advantage from the same. The authorities cited by learned counsel for op no.1 are not applicable to the present case being distinguishable to the facts and circumstances of the present case.

18.     Now we come to the question of relief sought by complainant and to be given to him. Though complainant in relief clause has prayed that op no.1 be directed to repair the crane and to make it defect free or in the alternative to replace the same with fresh piece or to refund the price of the amount of the crane but in the given facts and circumstances of the present case, as op no.1 has failed to make the crane in question defect free even after repairs and has not placed on file any expert opinion that still crane is repairable and will be got repaired even by replacing defective parts, therefore, to end the litigation between the parties and to avoid further litigation, it will be in the fitness of things, if op no.1 is directed to replace the crane in question with a new one of same make and model and in case same make and model of crane is not available with op no.1, then to make refund of the price of the crane in question to the complainant after taking back defective crane in question from complainant.

19.     In so far as prayer of complainant that as complainant is not able to pay the installments to op no.2 as his crane is lying useless on account of defects and that op no.2 be retrained from claiming the amount of installments till decision of complaint is concerned, the complainant has not moved any application alongwith the complaint with the prayer to restrain op no.2 to recover the amount of loan till decision of complaint. Further, from the copy of statement of account produced on record by op no.2 bank as Ex.R1, it is evident that complainant is making payment of installments to op no.2 bank regularly and has paid an amount of Rs.13,65,668.09 to the op no.2 towards loan amount and only an amount of Rs.1,89,413.19 is outstanding against the complainant, so no direction is required to be passed against op no.2 at this stage.

20.     In view of our above discussion, we allow the present complaint qua op no.1 and direct the op no.1 to replace the crane in question of complainant with a new one of same make, price and model and in case it is found that new crane of same make, price and model is not available with op no.1, then op no.1 will make refund of the price of the crane in question i.e. Rs.12,92,000/- ( as per invoice Ex.C6) to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which the above said amount will carry interest @9% per annum from the date of order till actual payment. We also direct op no.1 to further pay a sum of Rs.25,000/- as compensation for harassment, mental agony and Rs.11,000/- as litigation expenses to the complainant. However, complaint against op no.2 is dismissed. It is also made clear that complainant will have to repay the remaining loan amount to op no.2 and will have to complete all the required formalities with concerned authorities to get cancelled hypothecation of crane in question enabling op no.1 to replace the crane in question with a new one after taking back old crane from complainant. 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: 18.10.2021.                                                   District Consumer Disputes

                                                                               Redressal Commission, Sirsa.

Typed by:                                                                                                                               Jagdish Kumar (Stenographer)