Haryana

Ambala

CC/23/2018

The Kurikshetra - Complainant(s)

Versus

Tata Motors Ltd - Opp.Party(s)

08 Apr 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        :  23 of 2018

                                                          Date of Institution         :  12.01.2018

                                                          Date of decision   :  08.04.2019

The Kurukshetra and Karnal Co-operative Milk Producer’s Union Limited,  Karnal at Kurukshetra, through its CEO/Authorised Signatory.

……. Complainant.

                                                          Vs.

1.       Tata Motors  Ltd., Bombay, House No.24, Homi Modi Street, Mumbai-400001.

2.       M/S Metro Motors Private Limited, G.T.Road, Mohra, Ambala Cantt.

3.       M/S New India Assurance Company Limited, Pipli Road, Kurukshtra.

4.       Maha Bala Ji Auto Services (P) Ltd, National Highway No.1-158, K.M.Stone, G.T.Road, Pipli Kurikshetra -136131.

5.       M/S Pasco Motors(Pasco Automobiles, Chandigarh), Plot No.2, Industrial Area, Phase-1, Chandigarh.

6.       Tata Motors Ltd, Jeewan Dhara Building 5, Sansad Marg, New Delhi.

….…. Opposite Parties 

 

Complaint Under Section 12 of the Consumer Protection Act

Coram:       Mrs. Neena Sandhu, President.

Mrs. Ruby Sharma, Member.

Sh. Vinod Kumar Sharma, Member.

                            

Present:       Sh. Karamvir Singh, Advocate, counsel for complainant.

Sh. Prashant Gupta,  Advocate, counsel for the OP No.1 & 6.

Sh. S.R.Bansal, Advocate, counsel for OP No.2

 Sh. Nikhlesh Bhagi, Advocate, counsel for OP No.3.

Sh. Pawan Kumar Goel, Advocate, counsel for OP No.5.

OP No. 4 proceeded against ex-parte v.o.d. 14.03.2018.

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 pay Rs. 1,15,010/- i.e. the amount paid to the OP No.2 for replacement of the chassis.
2. To pay Rs.10,00,000/- for damages.
3. To pay Rs.50,000/- as litigation expenses.

Or

Any other relief whichthis Hon’ble Forum may deemfit.

The brief facts of the complaint are that the complainant had purchased one Tata 407 vehicle on 23.03.2007 vide bill no.6631, having chassis no.357514-CSZ807782 and engine no.497 SPTC 35 CSZ-827155. Similarly, complainant purchased another vehicle, Tata 407 vide invoice no.12621 dated 19.05.2009, having Chassis no.357515 CQZ 807379 and Engine no.497 SPTC 35 CQZ 810225. The chassis of the vehicle got cracked and the complainant informed about the same to the OPs vide letter dated 16.09.2009. As the vehicle was in warranty, the complainant again requested the Ops vide letter dated 20.10.2009 for repair/replacement of the chassis but of no effect. Complainant received a copy of  fax message dated 02.11.2009, addressed to M/S Metro Motors Private Limited, stating therein that “All upto date services have been done by Authorised Dealer and no modification in chassis or welding  has been observed, since the vehicle is still under warranty, therefore, might be considered for replacement under warranty”. After that complainant received another fax message, wherein it was mentioned that “It is fault of the party, who got fitted the tanker on the chassis but did not adhere to the requirement of fitting of tanker. Under these circumstances, we are  unable to undertake the replacement of the chassis of the vehicle, under the terms of warranty, however if you wish to get the chassis replaced on cost basis, please advise”. Vide letter dated 26.11.2009, the OP No.2, informed the complainant to get the chassis replaced on payment basis.  As the work of complainant was suffering very badly, the complainant got the chassis replaced by paying an amount of Rs.1,15,010/-. The chassis of the vehicle got damaged during the warranty but the same was replaced on payment basis, which amounts to deficiency in service on the part of the OPs. It is stated that earlier on 16.09.2011 the complainant filed a complaint before the Hon’ble District Consumer Disputes Redressal Forum, Kurukshetra((hereinafter referred to as DCDRF, KUK), which remained there upto 10.11.2016 and the same was dismissed for want of territorial jurisdiction by the Hon’ble DCDRF, KUK vide its order dated  10.11.2016, with the liberty to file a fresh complaint, on the same cause of action before the appropriate forum and the time spent by the complainant for contesting the litigation before this Forum should be excluded, while computing the period of limitation by giving  the benefit of provisions of Section 14(2) of the Limitation Act. Complainant had purchased the Tata 407 vehicle from Metro Motors Pvt. Ltd Mohra, District Ambala, and therefore, the complainant filed the present complaint before this Hon’ble Forum. It is further stated that there was a communication gap between the complainant and his counsel, Sh. C.B.Madaan, Advocate was seriously ill and ultimately died, in the month of December, 2017. The complainant contacted the family of Late Sh. C.B.Madaan, Advocate at Kurukeshtra, on 03.01.2018 and his son gave the papers of the case along with the copy of the order dated 10.11.2016. The complainant came to know regarding passing of order by the Hon’ble DCDRF, KUK dated 10.11.2016 only on 03.01.2018 and thereafter, filed the present complaint.

2.               Upon notice, OP Nos.1 & 6 appeared through counsel and filed written version raising preliminary objections qua complaint is not maintainable being false & frivolous; not come with clean hands; no cause of action; no jurisdiction and seeks dismissal of the complaint on the ground of limitation. On merits it is stated that OP No.1 is the renowned manufacturer of various types of commercial vehicles and passenger cars. It is submitted  that the cars and the vehicles  manufactured  by the OP No.1 pass through stringent quality checks and road trials,  before the actual commercial production starts and the cars and vehicles  are marketed  only after  being approved  by the Automotive Research Association of India(ARAI). The cars and vehicles manufactured  at the plant  of OPs are also thoroughly inspected for control systems, quality  checks and test drive  before  passing  through  factory works for dispatch to the authorized  dealers  appointed  on a principal to principal basis for sale of the cars and vehicles. It is also stated that complainant is not a consumer within the meaning of the term ‘Consumer’ as defined under Section 2(d)(i) of the Consumer Protection Act, 1986. It is further revealed that the complainant has purchased two commercial vehicles in the name of Kurukshetra & Karnal Co-operative Milk Producer Union Ltd and thus, the vehicle in question has been purchased for commercial purpose. Therefore, the complaint is liable to be dismissed with cost.

Upon notice, OP No.2 appeared through counsel and filed written version, raising preliminary objections qua complaint is not maintainable; complaint being false & frivolous; hopelessly time barred. On merits it is stated that the earlier complaint filed by the complainant before the Hon’ble DCDRF, KUK was decided on 10.11.2016 and the application filed by the complainant alongwith the present complaint, for  condonation of delay of 426 days, is not sustainable in the eyes of law. It is also stated that the complainant is not a consumer under law. All other averments made by the complainant were denied and prayed that the complaint qua it may be dismissed with cost.

Upon notice, OP No.3, appeared through counsel and filed written version, raising preliminary objections qua complaint is not maintainable being false & frivolous; estoppels; not come with clean hands; no cause of action; no locus standi; no jurisdiction and seeks dismissal of the complaint on the ground of limitation. On merits, it is stated that the complainant did not disclose as to which of the insured vehicle was having manufacturing defect. It is also stated that the complainant is not a consumer under law. All other averments made by the complainant were denied and prayed that the complaint qua it may be dismissed with cost.

Upon notice, OP No.5, appeared through counsel and filed written version, raising preliminary objections qua complaint is not maintainable being false & frivolous; hopelessly time barred; no jurisdiction. On merits, it is stated that the complainant purchased the vehicle from it at Chandigarh. The complainant never came to answering OP, after the purchase of vehicle and no service was done by it.  All other averments made by the complainant were denied and prayed that the complaint qua it may be dismissed with cost.

3.                To prove his version complainant tendered affidavit as Annexure  C/A alongwith documents as Annexure C-1 to C-16 and closed the evidence. On the other hand, Counsel for the OP Nos.1 & 6 tendered affidavit, Annexure R1/A and closed the evidence. The learned counsel for OP No.2 tendered affidavit as Annexure R2/A and closed the evidence. The learned counsel for OP No.3 tendered affidavit as Annexure R3/A alongwith documents as Annexure R3/1 & R3/2 and closed the evidence. The learned counsel for OP No.5 tendered affidavit as Annexure R5/A and closed the evidence.

4.                We have heard the learned counsel of the parties and carefully gone through the case file.

5.                At the outset, the learned counsel for the OPs No.1, 2,3,5 & 6 have argued that the chassis of the vehicle of the complainant was replaced on 26.11.2009, as such cause of action accrued to the complainant on 26.11.2009. As per Section 24-A of the Act, a complaint can be filed, within two years from the date of accrual of cause of action. No doubt, the complainant earlier had filed a complaint on 16.09.2011, on the same of cause of action against the OPs before the Hon’ble DCDRF, KUK. The said complaint was dismissed for want of territorial jurisdiction by the Hon’ble DCDRF, KUK vide its order dated 10.11.2016. As per liberty given by the Hon’ble DCDRF, KUK, the complainant could have filed the complaint before this Hon’ble Forum immediately, thereafter. But the complainant has filed the present complaint before this Forum on 12.01.2018 i.e. after a delay of 426 days, from the date of accrual of the cause of action. As such complaint filed by the complainant is barred by the limitation and is solely liable to be dismissed on this ground. To this effect the learned counsel for the complainant has argued that the reason for delay in filing the present complaint has been explained by the complainant and the application for condonation of delay was allowed by this Hon’ble Forum on 25.01.2018. Therefore, the objection raised by the learned counsel for the OPs at this stage is not tenable.

We find force in the contention of the learned counsel for complainant because the delay in filing the complaint has already been condoned by this Forum vide its order dated 25.01.2018 and the same has attainted finality as no revision was filed against the said order. Therefore, the objection raised by the learned counsel for the parties is not sustainable and the complaint filed by the complainant is liable to be dismissed on the ground of limitation.

6.                The learned counsel for OPs No.1,2, 3 & 6 have argued that the vehicle in question was purchased by the complainant, which is  a limited company, for commercial purposes, therefore, as per Section 2(1)(d) of  the Consumer Protection Act, 1986 that complainant is not a consumer, therefore, the complaint filed by it is liable to be dismissed. The learned counsel for the complainant has argued that the vehicle in question is being used for collecting milk by the complainant and not for earning any profit. Therefore, the complaint filed by the complainant falls within the ambit of the Consumer Protection Act, 1986. From the certificates of the Registration, Annexure C-3 & C-5, it is evident that the vehicle having chassis no.357514-CSZ807782 and engine no.497 SPTC 35 CSZ-827155 and vehicle having Chassis no.357515 CQZ 807379 and engine no.497 SPTC 35 CQZ 810225 have been registered in the name of the complainant. From the policy document, Annexure R-3/1, it is revealed that tanker having Chassis no.357515 CQZ 807379 and engine no.497 SPTC 35 CQZ 810225 has been registered with the Registration Authority as a goods vehicle and in the name of the complainant. It is not out of place to mention here that complainant is a limited company indulged into the business of collection and disposal of milk. Furthermore, it is not the case of the complainant that the milk which was collected through the said vehicle was to be consumed by the officials/employees of the complainant. Whereas, it is an admitted fact that same was to be sold to the general public. Under these circumstances, it can be very well said that vehicle was being used by the complainant for commercial purposes, as such it does not fall under the definition of consumer, as envisaged in Section 2(1)(d) of the Act. Accordingly, we hereby dismiss the present complaint with the liberty to the complainant to avail any other legal remedy, if available under law.  Parties are left to bear their own costs. 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 :08.04.2019

 

 

 

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

              Member                        Member             President