Punjab

Ludhiana

CC/14/832

Ashu Dham - Complainant(s)

Versus

Tata Motors Ltd - Opp.Party(s)

Sandeep Kapoor

17 Jun 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 832 of 05.12.2014

Date of Decision            : 17.06.2016

 

Ashu Dham son of Shri Surinder Dham, r/o 2162-A, Street No.2, Chander Nagar, Ludhiana.

….. Complainant

Versus

1.Tata Motors Limited, having its registered office at Bombay House, 24, Homi Mody Street, Fort, Mumbai-400001.

2.Dada Motors Private Limited, G.T.Road, Jalandhar Bye-Pass, Ludhiana through its Managing Director/Manager.

3.Cargo Motors Private Limited, Malikpur Chowk, Pathankot, through its Managing Director/Manager.

 

…Opposite parties

 

                             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :           Sh.Sandeep Kapoor, Advocate

For OP1                         :           Sh.R.K.Bhandari, Advocate

For OP2                         :         Sh.Vikas Gupta, Advocate

For OP3                         :         Sh.Upkar Singh, Advocate proxy counsel for 

 Sh.Avtar Manmohanjit Singh, Advocate.

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant for self employment purchased one Truck bearing registration No.PB-10-DA-2978 of Tata make model 2518TC. That truck was manufactured by OP1. Op2 and OP3 are the authorized dealers of OP1 at Ludhiana and Pathankot respectively. Due to manufacturing defect in the engine of the said truck, the same stood seized during warranty period, owing to which, the complainant approached OP2 for repair of the engine on 2.1.2012. Job card was prepared by OP2, the authorized service centre of OP1. OP2 assured the complainant that repair will be done within 2-3 days. However, after keeping the said truck in the service centre for 10-12 days, OP2 refused to repair the engine of the said truck within warranty period vide rejection letter. OP2 started claiming an amount of Rs.78,247/- for the repair of the engine of the said truck. Complainant under compelling circumstances, paid the said amount under protest on 14.1.2012 vide receipt No.5588 dated 14.1.2012. Ops assured that same problem will not arise in future. However, there was manufacturing defect in the engine and that is why it again stood seized on 16.01.2012 just within 2 days after repair. Complainant approached Op2 for repair of the engine and job card dated 16.1.2012 was prepared. The truck was retained by OP2 in the service centre for 4 days. Repair charges of amount of Rs.861/- claimed from the complainant vide receipt dated 20.1.2012. Said truck was returned on 20.1.2012 vide invoice bearing No.DadaMo-L.S.-1112-05633 dated 20.01.2012. The said amounts were illegally charged from the complainant, despite the fact that repairs carried within the warranty period. Engine of the said truck again stood seized on 13.8.2012 due to poor repair conducted by the employees of OP2. At the time of this seizure, the truck was at Pathankot and as such, the complainant was constrained to get the same repaired from OP3, the service centre of OP1, vide job card No.JC-CargoJ-PK-1213-002390. An amount of Rs.2,32,460/- was charged from the complainant vide receipts No.388 to 390, each of date 14.8.2012. Earlier complainant filed complaint under Consumer Protection Act against OP1 and OP2, but the same was withdrawn with liberty to file the fresh one after curing the technical defect because permission was granted by this Forum vide orders dated 30.10.2014. On 12.11.2014, the complainant sent a letter to OP3 through registered post bearing receipt No.1523 for seeking information and summary report about the actual defect in the engine of the above referred vehicle as well as regarding work done on the said vehicle. That information was not provided by OP3 and nor any reply to the said letter was sent by OP3. By pleading deficiency in service on the part of OPs, prayer made for directing OPs to replace the defective engine of the aforesaid truck with a new one free of costs. Even direction sought for providing information and summary report as sought by the complainant vide letter dated 12.11.2014. Return of the amount of Rs.2,32,460/-, claimed towards the repair charges, even sought. Compensation for mental harassment and agony of Rs.1 lac along with litigation expenses of Rs.11,000/- more claimed.

2.                          In written reply filed by OP1, it is pleaded interalia as if complaint filed for abusing the process of law; complaint is not maintainable because of suppression of material facts; complaint contain vague, baseless and malafide allegations; expert opinion for proving the allegation of manufacturing defect not obtained, despite the fact that within a mere span of 26 months, vehicle in question covered distance of 172596 Kms as on 25.2.2013. Besides, it is claimed that the complainant is not a consumer because vehicle in question is commercial vehicle. Complainant is having fleet of vehicles for carrying on business. Even the vehicle in question is used for carrying on commercial activities. Complainant has not disclosed about the facts that he did not carry out the first recommended free service at 3000 Kms; second free services at 9000 Kms; fourth service at 27000 Kms; sixth service at 45000 Kms; 8^th service at 63000 Kms; 9^th service at 72000 Kms; tenth service at 81000 Kms and eleventh service at 90000 Kms. Admittedly, vehicle in question was purchased by the complainant on 3.12.2010. However, the complaint filed in December, 2014 i.e. after 4 years, is barred by limitation. Complaint alleged to be filed for unnecessarily harassing  OP1. First complaint bearing No.228 of 2012 filed by the complainant decided by this Forum and thereafter, complainant filed another complaint bearing No.21 of 2013, but later on withdrew the same. This complaint alleged to be filed for getting undue and illegal benefits. Besides, it is claimed that relationship between the OPs is on ‘principal to principal basis’ and as such, OP1 cannot be held liable for any independent act or omission on the part of other OPs. OP1 cannot be held vicariously liable. Vehicles manufactured by OP1 passes through stringent quality checks after carrying road trials. It is claimed that complainant is in the habit of filing false complaint. Besides, it is claimed that this Forum has no jurisdiction to entertain, try and adjudicate the complaint because question of facts as well as law are involved, which can be adjudicated after appraisal of evidence by competent Civil Court. Complainant himself was irregular in getting the service of the vehicle in question and as such, he violated the terms and conditions of the warranty. Complainant has not availed mandatory recommended services for smooth and better performance of the vehicle in question at the optimum cost. Further, complainant used non recommended/substandard lube, resulting into the defect in the engine. It is claimed that the complainant cannot be get benefit of his own wrongs. After repair of the vehicle on 14.1.2012, the same was brought for screeching noise and necessary repairs were carried out and thereafter, the vehicle delivered back to the complainant. Vehicle travelled distance of 54731 Kms as on 14.1.2012, but 113029 Kms as on 13.8.2012. So, distance of 58298 Kms was travelled by the vehicle in question in span of 7 months. Warranty in respect of the vehicle in question had already  expired on 2.6.2012. Complainant brought the vehicle for service on 21.2.2012, when it travelled distance of 76618 Kms and then again on 18.5.2012, when it travelled distance of 95791 Kms. So, there was sheer negligence on the part of complainant in due maintaining the vehicle in question. There was no defect in the engine because if such defect would have been there, then vehicle would not have  covered distance of 113029 Kms within span of 20 months.         Complainant has not disclosed the technical defects, owing to which, he withdrew the earlier complaint. Rather, the present complaint alleged to be filed with a view to mislead and prejudice the mind of this Forum. Complainant was given retail invoice at the time of delivery of the vehicle in question. That retail invoice provides the information. As the vehicle in question is an assembly of thousand parts and as such proper maintenance and service of the same required for smooth and better performance, but the complainant failed to carry out the necessary repair at regular intervals, resulting in problem in the vehicle. Complainant is seeking relief of Rs.2,32,460/- charged by OP3 and as such, it is claimed that main relief sought against OP3, having workshop at Pathankot. In view of this, it is pleaded that this Forum has no territorial jurisdiction. OP2 malafide impleaded, so as to bring the case within territorial jurisdiction of this Forum. Prayer made for dismissal of complaint.

3.                In separate written statement filed by OP2, it is pleaded interalia as if complaint in the present form is not maintainable; complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act because vehicle in question used for commercial activities for generating profits. Besides it is claimed that the vehicle covered mileage of more than 80,000 Kms within 16 months from the date of purchase, which itself speaks about the extensive usage of the vehicle in question. As the vehicle in question registered as Transport vehicle and as such, the same is used for carrying out the commercial activities. Complainant after purchase of the vehicle from OP2, got serviced  the same for first time on 7.2.2011, when the vehicle travelled distance of 19564 Kms. Complainant had not approached OP2 for first, second and fourth free services. Complainant got 5^th free service conducted on 4.4.2011 at the time, when the vehicle travelled distance of 36445 Kms. Complainant has not availed the 6^th service of the vehicle, but the paid services were got done on 20.1.2012, 23.2.2012 and 21.3.2012, at the time, when it travelled distance of 55,954 Kms, 65,653 Kms and 76618 Kms respectively. So, violation of terms and conditions of warranty committed by the complainant himself. It is claimed that complainant cannot avail benefit of his own wrongs, particularly when the vehicle is not covered under the warranty. Earlier complaint bearing No.228 of 13.3.2012 filed by the complainant was dismissed and thereafter, second complaint No.31/13 was filed and now this complaint filed. Even complaint bearing No.286 dated 15.1.2015 was filed by the complainant. Complaint alleged to be filed for extorting money from OP2. Earlier complaint No.31/13 was withdrawn for filling up lacuna after final arguments were addressed by counsel for the complainant and OP2. OP1 has issued categorically instructions regarding fuel, coolant, lubricant showing that engine oil should be SAE15W-40APICF4+ and MB228.1 specifications. Complainant has not used such engine oil in the truck. While doing service of truck on 20.1.2012, OP2 noticed that air filter and engine parts in the truck were not recommended by Tata Motors Limited. Rather, air filter and engine parts were of inferior quality. From the mileage history of the vehicle, itself it is made out that there is no manufacturing defect in the vehicle in question. After thorough checking of the vehicle, Product Incident Report dated 1.4.2012 was obtained. From that report, it is clearly made out that the root cause of failure is the contaminated lube oil which caused the bearings rotation on all CR bearings and even caused scoring on main bearings. Further lack of lubrication caused piston scoring and damaging of turbo charger assembly. So cause of failure was due to maintenance lapse. Complainant is a transporter by profession using the vehicle in question for commercial purpose and as such, consumer complaint is not maintainable. Each and every other averment of complaint denied. Other facts qua service at particular mileage pleaded in this written statement are same as pleaded in the written statement of OP1.

4.                In separate written statement filed by OP3, it is also pleaded interalia as if the complaint in the present form is not maintainable; complainant is not a consumer; complainant is estopped by his act and conduct from filing the complaint; complaint bad for non-joinder of necessary parties because Balwant Motors, from whom, the vehicle purchased not impleaded as party. Besides, the complaint alleged to be filed with ulterior motive to harass the OP3. Vehicle in question was hypothecated with HDFC Bank, which has not been impleaded as party. Copies of orders passed by this Forum in earlier complaints have not been produced. Warranty lapsed on 14.1.2012 and even warranty rejection letter by OP2 had already been issued. Vehicle alleged to be purchased in between November 2010 (year of manufacturing) and 16.2.2011( when applied for registration), but the present complaint filed on 5.12.2014, is barred by limitation. Besides, controversy can be decided by civil court and complaint alleged to be false, vexatious, frivolous and baseless. Job card was supplied to the complainant and receipts No.388 to 390 each of date 14.8.2012 were issued. As per receipt No.388, Recon engine was supplied, but as per receipt No.389 deficiency of Recon engine parts was charged. However, receipt No.390 pertains to job done. As per Tax invoice of OP2, the vehicle covered distance of 55954 Kms on 20.1.2012, but 113029 Kms as on 14.8.2012. This shows that the vehicle had usually covered 7133 Kms per month. Earlier, vehicle in question never came to the workshop of OP3. Admittedly, the vehicle was brought to the workshop of OP3 at Pathankot for repair on 14.8.2012, when it had travelled distance of 113029 Kms. Amount of repair were charged. OP3 has been impleaded unnecessarily, despite the fact that there is no deficiency in service on the part of OP3. Vehicle in question was not purchased from OP3 and nor the original engine was manufactured/replaced by Op3. Job card and bills are available with the complainant and as such, supplementary report is not required by the complainant. Work was done to the satisfaction of the complainant by OP3 and thereafter, no complaint qua repair carried by OP3 was received and as such, complainant not entitled to any compensation for mental agony and suffering. Each and every other averment of complaint denied.

5.                Complainant to prove his case tendered in evidence his affidavit Ex.CW1/A along with documents Ex-C1 to Ex-C15(except Ex.C8)  and thereafter, his counsel closed the evidence.

6.                On the other hand, Sh.R.K.Bhandari, Advocate on behalf of OP1 tendered in evidence affidavit Ex.RA1 of Sh.M.K.Bipin Dass along with documents Ex.R1 and Ex.R2 and thereafter, closed the evidence.

7.                Sh.Vikas Gupta, Advocate on behalf of OP2 tendered in evidence affidavit Ex.RA2 of Sh.Inder Mohan Pal Singh, Law Officer of OP2 along with documents Ex.R1/2 to Ex.R10/2 and then, closed the evidence.

8.                Sh.Avtar Manmohanjeet Singh, Advocate on behalf of OP3 tendered in evidence affidavits Ex.OP3/A1 and Ex.OP3/A2 of Sh.I.D.Sharma, Sr.Manager and Sh.Raghuber Singh, Works Manager along with documents Ex.OP3/B to Ex.OP3/G and thereafter, closed the evidence.

9.                          Written arguments submitted on behalf of OP3 only and not by the remaining Ops and complainant. Oral arguments of counsel for the parties heard and records gone through minutely. 

10.               Onus to prove that there was manufacturing defect was on the complainant. In case, no expert opinion provided as per Section 13(1)(c) of the Consumer Protection Act, 1986 by the complainant, then case of the complainant qua manufacturing defect cannot be believed. In case, the vehicle brought repeatedly to the service station for repairs/rectifications, then owing to that alone manufacturing defect in the vehicle cannot be held to be established. This in fact is the proposition of law laid down in cases titled as Classic Automobiles vs. Lila Nand Mishra and another-2010(2)CLT-367(N.C.); Sushila Automobiles Pvt. Ltd. vs. Dr.Birendra Narain Prasad and others-III(2010)CPJ-130(N.C.) and Ajitha Chit Funds (P) Ltd. vs. Tata Engineering and Locomotive Co.Ltd. and others-I(2007)CPJ-204(N.C.). Complainant has not sought any expert opinion for proving the alleged manufacturing defect and nor he has pointed out the details of alleged manufacturing defects and as such, certainly submissions advanced by counsel for OP3 has force that the complainant failed to prove the manufacturing defect in the engine of the truck in question, particularly when the vehicle had already travelled sufficient distance and requisite free or paid services not carried out as per specifications.

11.              Date of purchase of the truck by the complainant from OP2 has not mentioned deliberately in the complaint or in the adduced evidence, but the said date of purchase pointed as 3.12.2010 in the written statement filed by OP1 and OP2. That date of purchase certainly is correct because the same is given in the job card Ex.OP3/B dated 14.8.2012 issued by OP3 as well as in the service history sheet produced on record as Ex.R4/2. After going through copy of certificate of registration produced on record as Ex.R5 as well as Ex.C1, it is made out that date of registration of the vehicle bearing registration No.PB-10-DA-2978 is 16.2.2011, but month and year of manufacture  is  November, 2010. In Ex.C1 as well as        in Ex.R5 each, it is mentioned as if the vehicle owned by the complainant M/s Ashu Dham after  purchase from dealer Balwant Sales (P) Limited. As warranty to be provided by the manufacturer or service centre and as such, impleadment of Balwant Sales (P) Limited as party is not essential. Submission to the contrary  counsel for OPs has no force. If month and year of manufacture is November, 2010 and date of registration is 16.2.2011, then certainly contents of Ex.R4/2 and OP3/B are absolutely correct that this vehicle purchased on 3.12.2010 by the complainant from Balwant Sales (P) Limited.

812.            Even if date of purchase of the vehicle not disclosed by the complainant deliberately, despite that said date of purchase worked out as 3.12.2010 from the produced record. This complaint filed on 05.12.2014 for seeking refund of repair charges amount of Rs.2,32,460/- carried out by OP3 on 14.8.2012 through issue of receipts Ex.C10 to Ex.C12=OP3/D to OP3/F. There is no allegation levelled against OP3 qua poor repair of the engine carried on 14.8.2012 and as such, certainly submissions advanced by counsel for OP3 has force that the complaint do not disclose any cause of action against Op3. The warranty rejection letter Ex.C4 in this case was issued on 14.1.2012, when payment of Rs.78,247/- was made by the complainant for the carried repairs. Signature of complainant Ashu Dham is there underneath  this Ex.C4(marked on 19.8.2015 by this Forum). Separate complaint qua illegally charging of this amount of Rs.78,247/- was filed by the complainant and the same bearing Complaint number 228 of 13.3.2012 titled as Ashu Dham vs. Tata Motors Limited and others,  was decided by this Forum on 26.2.2013. Copy of that order of this Forum      dated 26.2.2013 is produced on record as Ex.C8 as well as Ex.R6/2. That complaint was decided in terms that OP1 and OP2 will pay Rs.78,247/- + Rs.861/-, illegally charged from the complainant qua the repairs carried in January, 2012 and payments made on 20.1.2012. Cause of action for that complaint was separate than that of this complaint because this complaint filed for refund of amount of repair carried on 14.8.2012 by Op3 as referred above. As payment of the alleged illegal charged amount of Rs.2,32,460/- made on 14.8.2012 by the complainant and refund of the same sought through this complaint and as such, certainly cause of action accrued to the complainant w.e.f.15.8.2012 onwards. This complaint filed on 5.12.2014 i.e.more than two years of accrual of cause of action qua refund of Rs.2,32,460/- paid through receipts Ex.C10 to Ex.C12 (marked by this Forum on 19.8.2015)  as such, certainly is barred by limitation, being not filed                within two years of accrual of cause of action is submission of counsel for OPs. Keeping in view Section 24 of Consumer Protection Act, 1986, complaint       merits dismissal on the ground of its being barred by limitation is also submission of counsel for OPs. Even if the submission qua complaint being barred by limitation ex-facie may be having force, but after going through orders Ex.C13 passed in Complaint No.31 of 09.1.2013, it is made out that earlier complaint filed by the complainant was dismissed as withdrawn by giving liberty to the complainant to file fresh complaint after curing technical defect. Through Ex.C13, it was specifically ordered that period, from which, the present complaint remained pending shall be excluded while calculating the period of limitation. The previous complaint qua the cause of action of this complaint, remained pending from 9.1.2013    to 30.10.2014 i.e.  for 1 year and 9 months and 21 days. Orders Ex.C13 has not been shown to be challenged in appeal and as such the same has attained finality. So, term of orders Ex.C13 has to be taken into consideration for finding as to whether the present complaint is barred by limitation or not? Even if cause of action accrued to the complainant from the date of carried repair of 14.8.2012, despite that period of 1 year 9 month and 21 days to be added more by keeping in view the term of orders Ex.C13 and as such, complaint could have been filed by 4.6.2016. However, this complaint filed on 5.12.2014 and as such, in view of the exemption granted through Ex.C13, complaint is not barred by limitation.

13.              Besides, allegations of poor service carried on 14.8.2012 are not levelled against OP3 and even the faults in the services carried out by OP3          not pointed out and as such, complainant has no cause of action                      against OP3. Complaint against OP3 as such is not maintainable because after carried out  repair of 14.8.2012, no complaint ever lodged qua the defects in the carried out repair and nor those defects rectified.

14.              Counsel for the complainant takes us through para no.13 of Ex.R6 for arguing that even if vehicle in question purchased on 3.12.2010, but despite that warranty of the engine was up to 2.12.2012. Even if those findings may have been recorded in Ex.R6, but admittedly, the said order is under challenged in appeal before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh and as such, those findings has not become final. Therefore, independent finding qua period of warranty has to be recorded by this Forum by keeping in view the material produced on record.

15.              Ex.R1 is the copy of terms and conditions of warranty. After going through clause 1 of Ex.R1, it is made out that warranty for the vehicle as a whole shall be for 18 months from the date of sale of the vehicle by Works or Regional Sales Office or Sales Establishments or authorized dealers of OP1. Further, this warranty as per clause 1 was upto the operation of 1,50,000 Kms or 2000 hours  of operation, whichever is earlier. If the terms of this clause 1 of Ex.R1 taken into consideration, then this means that warranty for replacement or repair of the engine was to remain upto 3.6.2012. This calculation made by adding period of 18   months of warranty to the date of purchase as 3.12.2010 as worked out above. So, the repairs carried after 3.6.2012 were beyond the period of warranty and as such, the complainant not entitled for refund of any amount qua the repairs carried out by OP3 at his instance on 14.8.2012.

16.              As per clause 5 of terms and conditions of warranty contained in Ex.R1, the warranty not to apply if vehicle or engine or any part thereof is repaired or altered otherwise than in accordance with standard repair procedure or by any person other than the authorized sale or service establishment or dealers or their sub-dealers or service centers in any way. OP3 is also the authorized service centre of OP1. Besides, clause no.5 of Ex.R1 itself provides that warranty clause will not apply, in case of misuse or negligence or improper or inadequate maintenance and servicing. So, services or maintenance of the vehicle required to be carried out by the complainant himself as per the specifications stipulated by manufacturer i.e. OP1. Those stipulations of recommended services are laid down in Ex.R2. As per Ex.R2, the first service to be carried out at 3000 Kms, the second service at 9000 Kms, 3^rd service at 18,000 Kms in first part and at 27,000 Kms in second part. 4^th  service to be carried out at distance of 36,000 Kms in first part, but at 45,000 Kms in second part and 54,000 Kms in 3^rd part. 5^th service to be carried out at 72000 Kms in first part, but in second part at 81000 Kms and in third part at 90,000 Kms. It is the case of OP1 and OP2 that these recommended services not got performed by the complainant and as such, due to negligent or improper or inadequate maintenance, the warranty clause does not apply. These submissions advanced by counsel for OP1 and OP2 has force by keeping in view clause 5 of Ex.R1 providing for proper, adequate and due maintenance of the vehicle by the customer.

17.              As per case of OP1 and OP2, the recommended first free service at 3000 Kms, the second free service at 9000 Kms was not carried out by the complainant and nor the 4^th service at 27000 Kms and 6^th service at 45000 Kms or 8^th service at 63000 Kms or 9^th service at 72000 Kms or 10^th service at 81000 Kms and 11^th service at 90,000 Kms was  carried out by the complainant.     Complainant has produced on record the tax invoices dated 14.1.2012 Ex.C2 and Ex.C3, receipt of payment dated 14.1.2012 along with receipt of that date Ex.C7 only for showing that maintenance service got by him(complainant) on 14.1.2012 and 20.1.2012. However, Ops have produced on record copy of tax invoices Ex.R1/2 of 11.9.2011; Ex.R3/2 of date 12.5.2012; Ex.R4/2 of date 25.2.2013 along with service history record of services carried on 25.9.2012, 14.8.2012, 18.5.2012, 21.3.2012, 23.2.2012, 21.1.2012, 14.1.2012, 4.4.2011 and 7.2.2011. Perusal of records of service history shows that 3^rd free service was got carried by the complainant on 7.2.2011, when the vehicle travelled distance of 19564 Kms, but fifth free service got carried on 4.4.2011, when the vehicle travelled distance of 36,445 Kms. Further this record shows that paid service got carried by the complainant on 14.1.2012, when the vehicle travelled distance of 54,731 Kms and then again on 21.1.2012, when the vehicle travelled distance of 55954 Kms. Further paid services were got carried by the complainant on 23.2.2012, 21.3.2012 and 18.5.2012, when the vehicle travelled distance of 65,653 Kms, 76618 Kms and 95791 Kms respectively. This record of service history undisputedly establishes that the complainant did not bother to get carried the recommended first, second, fourth, sixth, eighth, ninth, tenth and eleventh services at the recommended covered distances/Kms of 3000 Kms, 9000 Kms, 27000 KMs, 45000 Kms, 63000 KMs, 72000 Kms, 81000 Kms and 90000 Kms respectively. So, this establishes negligence on the part of complainant in not getting the due recommended services qua the vehicle in question done. In view of improper or inadequate maintenance or servicing of the vehicle, certainly negligence on the part of complainant is there in not getting the vehicle serviced or maintained as per recommendations of OP1. So, rejection of warranty correctly ordered through Ex.C4 by keeping in view clause no.5 of Ex.R2. As complainant himself failed to maintain the vehicle properly by getting the recommended free or paid services performed on vehicle in question in time and as such, certainly in view of clause 5 of Ex.R1, complainant not entitled for the refund of the amount paid through receipts Ex.C10 to Ex.C12. Certainly, a party cannot be permitted to get benefit of his own wrongs and as such, the complainant not entitled to the reliefs prayed for through this complaint. Wrong was committed by the complainant in not carrying out the recommended first, second, fourth, sixth, eighth, ninth, tenth and eleventh services carried out at the appropriate time and as such, seizure of the engine, if any, was due to negligence of the complainant himself. As case of the complainant regarding repairs carried on 14.8.2012 does not fall within the warranty period and as such, OPs cannot be held liable for refund of amount of Rs.2,32,460/- qua the repairs carried out by OP3 on 14.8.2012. As such, there is no deficiency in service on the part of OPs at all.

18.              Though, it is contended by counsel for the Ops that the complainant is not a consumer because the vehicle in question used by him for carrying on commercial activities, but no material produced by OPs to establish that the vehicle in question used for commercial activities by the complainant. If registration certificate Ex.C1=Ex.R5 shows that the vehicle in question is Heavy Goods Vehicle used for transportation, then due to that alone, it cannot be inferred that it was used for carrying on commercial activities. Rather, the complainant in para no.2 of the complaint and in corresponding paras of affidavit Ex.CW1/A has specifically claimed that the vehicle in question was purchased by him for self employment and as such, same establishes that vehicle was purchased by the complainant for earning livelihood. No material produced by the OPs to establish as to how many other vehicles owned by the complainant and as such, vehicle in question cannot be said to be used by the complainant for carrying out commercial activities. Rather, vehicle used by the complainant for transportation for earning livelihood and as such, complainant certainly is a consumer.

19.              As the complainant claims refund in view of the warranty clause and vehicle purchased at Ludhiana from OP2 and as such, in view of the fact that complainant carrying on operation of truck in question from Ludhiana, it is obvious that cause of action accrued to the complainant for seeking refund of the repair carried out at Pathankot, in the territorial jurisdiction of this Forum.

20.              As a sequel of above discussion, complaint dismissed with no order as to costs. Copies of order be supplied to the parties free of costs as per rules.

21.              File be indexed and consigned to record room.

 

                             (Babita)                                        (G.K. Dhir)

                             Member                                          President

Announced in Open Forum.

Dated:17.06.2016. 

GurpreetSharma