Haryana

Kaithal

105/21

Sachin Tiwari - Complainant(s)

Versus

Vaibhav Autos - Opp.Party(s)

Sh.Satpal Tawat

17 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.105/2021.

                                                     Date of institution: 07.04.2021.

                                                     Date of decision:17.05.2023.

Sachin Tiwari aged about 28 years son of Sh. Prem Shankar Tiwari, resident of Power Grid, Sub Station, Cheeka Road, Patti Afgan, Kaithal.

 

                                                                        …Complainant.

                        Versus

1. Vaibhav Autos, Pipli Road, Ladwa, Kurukshetra through its proprietor/Manager.
2. TVS Motors Company Ltd., P.B.No.4, Harita, Hosur, Tamil Nadu, India through its Managing Director.
3. Bharat TVS, Service Centre, Ambala Road, Kaithal through its authorized officer.

….Respondents.

        Complaint under Section 35 of the Consumer Protection Act, 2019.

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Sh. Sethpal Rawat, Advocate, for the complainant.   

                Sh. P.P.Kaushik, Advocate for the OP No.2.

                OPs No.1 & 3 exparte.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Sachin Tiwari-Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the respondents.

2.             In nutshell, the facts of present case are that the complainant had purchased a new Motor-cycle Apache 160 4V from the OP No.1 for the sum of Rs.1,07,800/- vide invoice No.6585 dt. 13.12.2020.  At the time of purchasing the above-said motor-cycle, the OP No.1 told the complainant that the above-said motor-cycle is manufactured of the year 2020 and the year of manufacturing has also been mentioned in the sale certificate, form No.21 & 22.  The case of complainant is that due to some mechanical defect in the motor-cycle, on 25.01.2021 when the complainant had gone to service-centre at OP No.3, then at the time of preparing the job-card, a message was received by the complainant that 1^st service of the said vehicle has already been availed by one some other person on 12.12.2020 i.e. one day before the date of purchase of the said vehicle.  The complainant approached the OP No.1 to refund the amount of motor-cycle but the OP No.1 did not do so.  So, it is a clear cut case of deficiency in service on the part of OPs and prayed for acceptance of complaint.     

3.            Upon notice, the OP No.2 appeared before this Commission, whereas Ops No.1 & 3 did not appear and opted to proceed against exparte vide order dt. 20.08.2021 passed by this Commission.  OP No.2 contested the complaint by filing their written version raising preliminary objections that the present complaint is false and frivolous; that the present complaint is not maintainable against the answering OP for the sole reason that the complainant is not a consumer of answering OP within the purview of the definition provided under the Act; that the complaint filed by the complainant does not fall within the definition of a “Consumer dispute” under the Act as there is neither any manufacturing defect proved in the vehicle in question nor any deficiency in service being established on the part of answering OP.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

4.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C20 and thereafter, closed the evidence.

5.             On the other hand, the OP No.2 tendered into evidence affidavit Ex.RW1/A alongwith document Annexure-R1 and thereafter, closed the evidence.

6.             We have heard the learned Counsel for both the parties and perused the record carefully.

7.             Ld. counsel for the complainant has argued that the complainant had purchased a new Motor-cycle Apache 160 4V from the OP No.1 for the sum of Rs.1,07,800/- vide invoice No.6585 dt. 13.12.2020.  It is further argued that at the time of purchasing the above-said motor-cycle, the OP No.1 told the complainant that the above-said motor-cycle is manufactured of the year 2020 and the year of manufacturing has also been mentioned in the sale certificate, form No.21 & 22.  It is further argued that due to some mechanical defect in the motor-cycle, on 25.01.2021 when the complainant had gone to service-centre at OP No.3, then at the time of preparing the job-card, a message was received by the complainant that 1^st service of the said vehicle has already been availed by one some other person on 12.12.2020 i.e. one day before the date of purchase of the said vehicle.  The complainant approached the OP No.1 to refund the amount of motor-cycle but the OP No.1 did not do so.  So, it is a clear cut case of deficiency in service on the part of OPs.

8.             On the other hand, ld. counsel for the OP No.2 has argued that that the complaint filed by the complainant does not fall within the definition of a “Consumer dispute” under the Act as there is neither any manufacturing defect proved in the vehicle in question nor any deficiency in service being established on the part of OP No.2.  It is further argued that the relationship between the OP No.2 and OP No.1 is on principal-to-principal basis and the OP No.2 cannot be vicariously held liable for any independent acts or omissions of the OP No.1.  Ld. counsel for the OP No.2 has placed reliance upon the case law titled as Tata Motors Ltd. Vs. Antonio Paulo Vaz and another decided by Hon’ble Supreme Court on 18.02.2021 bearing Civil Appeal No.574 of 2021 reported in 2021(2) RCR (Civil) 219.

9.             We have considered the rival contentions of both the parties.  It is clear from the invoice No.6585 dt. 13.12.2020 as per Annexure-C3 that the complainant had purchased the motor-cycle in question for the sum of Rs.1,07,800/-.  The grievance of the complainant is that due to some mechanical defect in the motor-cycle, on 25.01.2021 when the complainant had gone to service-centre at OP No.3, then at the time of preparing the job-card, a message was received by the complainant that 1^st service of the said vehicle has already been availed by one some other person on 12.12.2020.  During the course of arguments, ld. counsel for the complainant has drawn our attention towards the message of OP No.1 as per Annexure-C15, wherein it is clearly mentioned that “Dear Sachin Tiwari, 1^st Free Service for frame No.MD637De57L2H02972 was already availed on 12.12.2020.”  So, it is clear that the motor-cycle purchased by the complainant from OP No.1 was second hand vehicle.  So far the liability is concerned.  In the present case, OP No.1 is dealer, Op No.2 is manufacturer and OP No.3 is service-centre.  The complainant has not alleged any manufacturing defect in the motor-cycle rather the case of complainant is that the motor-cycle purchased by him was second hand motor-cycle, so, there is no liability of OP No.2.  We rely upon the authority produced by ld. counsel for the Op No.2 titled as Tata Motors Ltd. Vs. Antonio Paulo Vaz and another (supra), wherein it has been held that “Liability of manufacturer-Complainant approached dealer to purchase car-Complainant discovered car was old and used, 2009 model, though invoice and delivery note were dated 25.01.2021-Request for replacement was denied by dealer-Finding against dealer justified-Findings against manufacturer, who had not sold car and made representation in question, not justified-Unless knowledge of manufacturer regarding condition of car is proved, decision fastening liability on manufacturer untenable.”  The said authority is fully applicable to the facts of instant case.  OP No.3 being service-centre is also exempted from any liability.  We are of the considered view that the OP No.1-dealer has sold the second hand motor-cycle to the complainant.  The OP No.1 was proceeded against exparte as they did not appear even one time in the court.  So, the evidence adduced by the complainant goes unrebutted and unchallenged against the OP No.1.  Hence, there is deficiency in service and unfair trade practice on the part of OP No.1-dealer.

10.            As a result of aforesaid discussion, we direct the OP No.1-dealer to refund the amount of Rs.1,07,800/- to the complainant within 45 days from today and further to pay Rs.10,000/- as compensation on account of physical harassment and mental agony as-well-as Rs.5,000/- as litigation charges.  However, the complainant is also directed to submit the motor-cycle in question to the OP No.1 within 30 days.  It is also made clear that if the OP No.1 is failed to pay the awarded amount of Rs.1,07,800/- to the complainant within stipulated period, then they shall also be liable to pay interest @ 7% p.a. from the date of this order till its realization.  Hence, the present complaint is accepted against OP No.1 accordingly and dismissed against OPs No.2 & 3. 

11.            In default of compliance of this order, proceedings against respondent-OP No.1 shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:17.05.2023.

                                                                (Neelam Kashyap)

                                                                President.

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

Typed by: Sanjay Kumar, S.G.