Sh. Balram Jha filed a consumer case on 29 Apr 2019 against Terra Motors India Pvt. Ltd. in the North East Consumer Court. The case no is CC/14/2018 and the judgment uploaded on 03 May 2019.
Delhi
North East
CC/14/2018
Sh. Balram Jha - Complainant(s)
Versus
Terra Motors India Pvt. Ltd. - Opp.Party(s)
29 Apr 2019
ORDER
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST
The case of the complainant, as set out in the present complaint is that he had purchased one e-rickshaw Y4, color Red, Chassis No. M2DY4HA16RP004172, Motor no. TMM 4172, bearing Registration no. DL 11 ER 2868 manufactured by OP2 from OP1 dealer on 21.04.2017 vide retail invoice no. TER / 2017-18 / 005 for a sum of Rs. 1,07,006/- with one year guarantee thereon. The said vehicle was taken by complainant through vehicle finance got done by SBI which had sanctioned term loan of Rs. 95,000/- for the said purchased. The subject e-rickshaw however cost Rs. 1,20,485/- after insurance, registration and logistic charges. The vehicle was therefore hypothecated with SBI. The complainant got insurance certificate from Royal Sundaram General Insurance Company w.e.f. 21.04.2017 to 20.04.2018 with respect to the subject vehicle. The said vehicle got damaged on 30.06.2017 and was given to OPs for repair and the complainant has alleged that the OPs withheld the subject vehicle in their workshop for a month and returned it after repairs which were not done satisfactorily enough for the vehicle to be plied on the road for which improper repair by OPs, the OPs were liable and duty bound to change the same as it was within the guarantee period and to provide a fresh vehicle to the complainant but OPs failed to do so which caused complainant loss of Rs. 1,000/- per day of livelihood from 30.06.2017 and is therefore claiming loss of earning @ Rs. 1,000/- per day from 30.06.2017, replacement of the vehicle and Rs. 2,00,000/- as compensation for mental tension and payment of EMI to the tune of Rs. 3,099/-, from OPs on grounds that despite several visits to OPs made by complainant, OPs turned deaf ear to his grievance and deprived him of his sole source of livelihood by non-fulfillment of terms and conditions of guarantee. The complainant also alleged that the OPs did not supply battery guarantee card, vehicle service card, a key of vehicle and chassis number despite being bound to do so and therefore a legal notice was issued to OPs through complainant counsel on 05.08.2017 but OPs failed to respond and act upon the same. Therefore vide the present complaint, the complainant alleging deficiency of service on part of OPs has prayed before this Forum for issuance of direction against the OPs to refund the cost of the e-rickshaw i.e. Rs. 1,20,485/-, a compensation of Rs. 2,00,000/- as damages for mental tension and harassment, Rs. 1,000/- per day from 30.06.2017 for loss of earning and Rs. 22,000/- towards litigation charges.
Complainant has attached copy of e-rickshaw brochures issued by OPs with one year warranty alongwith copy of warranty card under the seal of OPs dated 21.04.2017, photographs of the e-rickshaw on the date of purchase, copy of letter dated 17.04.2017 issued by SBI to OP1 regarding loan approval to complainant and bank transfer of loan amount in account of OPs bearing no. 00030350020252, copy of booking form dated 21.01.2017 for estimate of the total value of the e-rickshaw, copy of retail invoice dated 21.04.2017, copy of insurance certificate of e-rickshaw insured with Royal Sundaram General Insurance, copy of registration document issued by Transport Department, GNCTD with respect to subject e-rickshaw, copy of Amortization Schedule issued by SBI regarding vehicle loan with EMIs @ of Rs. 3,099/- payable monthly staring from 15.05.2017 up to 25.04.2020, copy of e-mail dated 04.07.2017 by complainant to OPs for intimation of broken chassis and asking for repair for same at the earliest and copy of legal notice dated 05.08.2017 by complainant’s counsel to OPs alongwith postal receipts and track report of service.
Notice was issued to the OPs which entered appearance and filed written statement in which they took the preliminary objection that the subject e-rickshaw had suffered “accidental damage” in its chassis due to complainant’s failure to follow the instructions given in the warranty card and the said damages despite not being covered under warranty, the OPs still replaced the chassis and made necessary repairs in the e-rickshaw free of cost as a good will gesture though they were not under obligation to do so. The OPs further resisted the complaint by submitting that the subject vehicle was delivered to the complainant to his utmost satisfaction and denied any manufacturing defect or technical defect therein and submitted that the complainant never approached the OPs after the e-rickshaw was repaired and handed over him in July 2017 for any defect therein. The OPs urged that it provided after sale service to the complainant and there was not deficiency of service or negligence on its part and the complainant has failed to substantiate his alleged grievance by any supporting documentary evidence but has filed the present complaint to illegally extort money from OPs by concealing the fact from this Forum that the chassis of the e-rickshaw has already been replaced with a new one which disentitles complainant from any relief. OPs further contended that the subject e-rickshaw was under warranty and not guarantee and the warranty is subject to the customer following the instructions mentioned in the warranty card. The OPs vehemently denied having withheld the e-rickshaw for about a month or not having repaired satisfactorily on grounds that the same was delivered promptly and accepted by the complainant to his utmost satisfaction and acknowledgment proven by the complainant never having ever approached the OPs again thereafter for any complaint with regard to the said e-rickshaw. OPs denied their liability to change the vehicle or the same suffering from any defects and submitted that the battery guarantee card, vehicle service card, and key of the vehicle were duly supplied to the complainant at the time of purchased of e-rickshaw. Lastly, OPs denied having received any legal notice from the complainant or its failure to comply with requirements towards its customers and prayed for dismissal of the complaint as no cause of action made out against them.
OP has attached copy of Board Resolution in favour of Ms. Nidhi Chawla (HR & Legal Head), copy of Warranty Form / Job Sheet no. 006607 dated 21.07.2017 issued by OP for chassis replacement of the subject vehicle alongwith hand written note of submission of vehicle by complainant dated 14.07.2017 to OP and vehicle delivery endorsement to customer (complainant) “without any charge” “satisfactory signature” received by complainant dated 21.07.2017.
Rejoinder was filed by the complainant in rebuttal to defence taken by the OPs wherein complainant denied the same and reiterated and reaffirmed his grievance against the OPs in complaint.
Evidence by way of affidavit was filed by the complainant exhibiting the documents relied upon / annexed with the complaint as EX CW1/1 to CW 1/16.
Evidence by way of affidavit was filed by OP sworned by its HR Manager exhibiting the copy of Board Resolution as EX RW1/1 and stated that the grievance of the complainant raised by the e-mail dated 04.07.2017 was resolved by OPs and he never wrote any e-mail thereafter regarding any problem with e-rickshaw which clearly shows that there was no problem in it.
Written arguments were filed by both the parties in reassertion / reemphasis of their respective grievance / defence.
During the course of oral arguments in proceeding held on 18.02.2019, counsel for OPs argued that he is in possession of recent video clip and photographs wherein the complainant can be seen plying the subject e-rickshaw as recently as December 2018 and that he was misrepresenting before this Forum that the subject e-rickshaw is lying in a broken down and non-functional state. On directions of this Forum, the OPs filed photographs of the e-rickshaw with complainant driving the same and the CD of video to the same effect alongwith accompanying certificate u/s 65B of Indian Evidence Act of 1872 and further argued that the photographs of the e-rickshaw annexed with the complaint at page 16-17 and page 28 (e-mail) are the same i.e. in unbroken / undamaged state.
Complainant pressed for the relief claim in the complaint while alleging manufacturing defects and failure to on the part of OPs to replace the subject e-rickshaw despite same being covered under warranty.
We have heard the rival contentions of both the parties and have succinctly brought the same into focus after having bestowed our anxious consideration to the documentary evidence placed on record by both sides and viewed the CD filed. We may now advert to the core question i.e. whether the subject vehicle suffered from any manufacturing defect warranting its replacement and deficiency of service, if any, on the part of OPs in having failed to replace the same and relief, if any that the complainant may be entitled to.
Undisputedly, the subject e-rickshaw was purchased by complainant from OPs on 21.04.2017 against bank loan from SBI with which it was hypothecated and suffered accidental damages on 30.06.2017 for which the complainant vide email dated 04.07.2017 to the OPs had informed them of the broken chassis asking for earliest possible repair of the same. The Forum had sought explanation from OPs for 10 days gap from 04.07.2017 to 14.07.2017 (on the basis of vehicle hand over by complainant date filed alongwith written statement) to which the counsel for OPs stated that since the correspondence office of OPs is located at Gurgaon, the process for approval takes few days and when the complainant submitted his vehicle for repairs on 14.07.2017, the same was returned after repairing and replacing the chassis free of cost by OPs to the utmost satisfaction of the complainant within a week thereafter i.e. 21.07.2017 after which the complainant never raised any complaint regarding the said e-rickshaw. The complainant was unable to counter the arguments and the photographs of him driving the subject e-rickshaw in December 2018, when he was confronted with the same by this Forum and merely stated that he is plying the same in order to pay EMIs to SBI. We therefore find allegations of manufacturing defect in the vehicle and deficiency of service on the part of OPs as leveled by the complainant baseless, frivolous, uncorroborated and without any force. This issue is therefore decided against the complainant.
Defect is defined in clause 2(1)(f) of CPA and the onus to prove manufacturing defect in a vehicle is on the consumer alleging it and same should be proved by expert evidence, in absence of which no liability could be attributed to manufacturer to compensate the consumer. The Hon'ble National Commission in Swaraj Mazda Ltd. Vs P.K. Chakkrappore 2004 (I) CPC 421 (NC) was also of the view that expert opinion should be obtained from government organization, institution / agency for going in to technical issue and submission of report that effect. The Hon'ble National Commission in Lovely Autos Vs. Harmesh Lal (2007) I CPJ 312 (NC) held that no manufacturing defect warranted replacement of vehicle or refund of its price on failure of complainant to establish defect in the engine as alleged. The Hon'ble National Commission in Chandeshwar Kumar Vs Chairman TELCO Ltd. (2006) 3 CPR 402 (NC) dismissed the complaint where no expert opinion was placed on record as to whether vehicle had any manufacturing defect and no additional material or evidence brought on record to prove allegation of vehicle having any manufacturing defect. Similar view was taken by Hon’ble NCDRC in TATA Engineering and Locomotive Company Vs. Sunil Bhasin (2008) II CPJ 111 (NC) where neither the car was sent to any workshop nor any independent expert opinion obtained about alleged defects. Further the Hon'ble National Commission in Pawan Kumar Vs Nissan Motors India Pvt Ltd. I (2018) CPJ 425 (NC) observed that the complaint was sketchy and vague and no application was given by the petitioner / complainant to support his contention that the said vehicle had manufacturing defect and had also failed to place on record any expert opinion regarding the alleged manufacturing defect in his vehicle and had therefore dismissed the Revision Petition vide which the complainant had challenged the order of State Commission Jharkhand dismissing the complaint. The Hon'ble National Commission in Sanjay Singh Vs Dabloo Bhagat II (2018) CPJ 533 (NC) observed in a case where manufacturing defect in a vehicle was alleged that the complainant having failed to place on record any technical expert report to support his allegation of defective tractor or any inspection report from a mechanic to whom he had allegedly shown the said tractor and who had given the report of its engine been old and defective, that in failure to do so the complainant has failed to prove to his case of allegation of defect in the said vehicle and upheld the order of State Commission Bihar disallowing relief granted to the complainant by District Forum. In the present case, the complainant has never during the pendency of proceedings since January 2018 moved any application seeking mechanical inspection of the subject vehicle by a technical expert to determine manufacturing defect if any said vehicle beyond reasonable doubt which is also a legal / procedural requirement mandated under Section 13 1 (c) of CPA. The Hon'ble National Commission in Hindustan Motor Ltd Vs K. Madhusoodanan Pillai and Anr III (2018) CPJ 639 (NC) observed in a case where no expert opinion was brought forth confirming any manufacturing defect alleged that even under warranty, only defective parts can be changed and not the whole vehicle and the vehicle having already run 39,000 kms when the complaint was filed cannot be said to be suffering from manufacturing defect. The Hon'ble National Commission in Md. Hassan Khalid Haidar Vs General Motor India Pvt Ltd and ORS IV (2018) CPJ 115 (NC) held in a case where the first problem in the car occurred after 9-10 months of its purchase when it had run over 25,000 kms that if the vehicle had manufacturing defect, it should have been manifested soon after purchase and since the petitioner had failed to provide any evidence to prove that the vehicle had manufacturing defect by way of either producing evidence of an expert or taking opportunity of submitting an application before District Forum for appointment of expert to examine vehicle for an expert opinion, the case is liable to be dismissed since the onus was on the complainant to prove manufacturing defect. The Hon'ble National Commission in Tractor Dealer Farm equipment Vs Ghanshaym Maurya and Ors I (2017) CPJ 671 (NC) observed in a case where manufacturing defects in vehicle was alleged and replacement / refund was sought that if the case of the complainant was of visit to the workshop as many as 21 times, there would have been job card opened on each visit to the workshop, however, no such job cards were filed by him before the District Forum not was any technical expert opinions sought for examination of the disputed vehicle to prove the defects therein and dismissed the complaint on such grounds.
In the present case, most astonishingly, the complainant while claiming damages for loss of income due to dysfunctional e-rickshaw and seeking replacement thereof / refund of its price, has been caught red handed plying the said e-rickshaw as recently as four months ago December 2018 by the OPs on Delhi roads. The willful concealment of this act of complainant speaks volume of his malafide intention to misuse the process of law by misrepresenting the facts to elicit unlawful gains by using legal machinery. Therefore the complainant is not entitled to any compensation, quantum being irrelevant. The Consumer Protection Act is a benevolent legislation but not for arm twisting or blackmailing to make unlawful gains under the garb of being a consumer. We strongly condemn such malpractice on the part of complainant who has come to the Forum with dirty hands and malafide intent with an attempt to hoodwink the judicial body to unlawfully enrich himself.
Having exhaustively dealt with the issue in hand in the light of legal discourse / settled proposition of law in the judgment aforecited and factual matrix of the present case, we have arrived at the following conclusion:
The complainant failed to proof any manufacturing defect in the vehicle in question as the complaint is vague, allegation therein unsubstantiated / uncorroborated and not supported by any report of a technical expert for which no application or permission was sought by the complainant under section 13 (1)(c) of CPA.The Hon'ble National Commission in P.C Sunil (Dr.) Vs. TATA Engineering & Locomotive Co. Ltd. III (2016) CPJ 236 (NC) held that only in case of manufacturing defect can the vehicle be replaced or its sale consideration be refunded. Similar view was taken in TATA Motor Vs Sharad IV (2016) CPJ 145 (NC) that no case is made out for replacement as no manufacturing defect is found in the vehicle. The Hon'ble National Commission in Baljeet Kaur Vs. Divine Motors III (2017) CPJ 599 (NC) held that where manufacturing defect is alleged, onus of proof has to be on complainant and in absence of expert opinion mere affidavit is no substitute for same and dismissed the Revision Petition. Therefore this issue is decided against the complainant in light of the settled law discussed above.
After having exhaustively discussed the legal proposition in the foregoing paras and after examining all the evidence placed on record, we are of the considered view that complainant deserves no relief against OP with respect to said e-rickshaw due to having filed a false and frivolous complaint, having lacunae in his own case in failure to establish any defect in the e-rickshaw in question by way of a report of a technical expert more so when he himself had sought repairs of the subject e-rickshaw from OPs and accepted the subject e-rickshaw after repairs to his satisfaction never to report any defect therein ever again to OPs and is plying it currently.
The present complaint is therefore dismissed as vexatious u/s 26 of CPA with stern warning to the complainant to abstain from such malpractice in future lest be dealt with heavy hand of law. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
File be consigned to record room.
Announced on 29.04.2019
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President
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