Chandigarh

StateCommission

A/99/2023

MAHINDRA & MAHINDRA LTD. - Complainant(s)

Versus

VIJAY SHARMA - Opp.Party(s)

ROHAN MITTAL

17 Aug 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	99 of 2023
Date of Institution	:	18.05.2023
Date of Decision	:	17.08.2023

 

 

 

 

 

M/s Mahindra & Mahindra Ltd., Gateway Building, Apollo Bunder, Mumbai, Maharashtra 400001 through its Authorised Signatory.

….Appellant/Opposite Party No.2.

Versus

1]      Vijay Sharma S/o Late Sh. Kasturi Lal Sharma, R/o House No.3595, First Floor, Sector 23-D, Chandigarh.

...Respondent/Complainant.

2]      M/s Harbir Automobiles Pvt. Ltd., Plot No.182/84, Industrial Area I, Chandigarh through its Authorised Person.

...Respondent/Opposite Party No.1.

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

              MR. RAJESH K. ARYA, MEMBER

 

ARGUED BY :-  

 

Sh. Rohan Mittal, Advocate for the appellant.

Sh. Karan Singh Rana, Advocate for respondent No.1/complainant.

Sh. Gaurav Bhardwaj, Advocate for respondent No.2.

 

 

Appeal No.	:	102 of 2023
Date of Institution	:	24.05.2023
Date of Decision	:	17.08.2023

 

 

 

 

 

M/s Harbir Automobiles Pvt. Ltd., Plot No.182/84, Industrial Area I, Chandigarh 160002 through its Authorised Signatory.

 

….Appellant/Opposite Party No.1.

Versus

1]      Vijay Sharma S/o Late Sh. Kasturi Lal Sharma, R/o House No.3595, First Floor, Sector 23-D, Chandigarh.

...Respondent/Complainant.

2]      M/s Mahindra & Mahindra Ltd., Gateway Building, Apollo Bunder, Mumbai, Maharashtra 400001 through its Authorised Signatory.

...Respondent/Opposite Party No.2.

ARGUED BY :-  

 

Sh. Gaurav Bhardwaj, Advocate for the appellant.

Sh. Karan Singh Rana, Advocate for respondent No.1/complainant.

Sh. Rohan Mittal, Advocate for respondent No.2.

 

PER  RAJESH  K. ARYA, MEMBER

                   Vide this common order, we are deciding these two appeals bearing No.99 of 2023 filed by opposite party No.2 (M/s Mahindra & Mahindra Ltd.) and 102 of 2023 filed by opposite party No.1 (M/s Harbir Automobiles Pvt. Ltd.) against order dated 03.03.2023, vide which,  District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short ‘District Commission’), allowed consumer complaint No.344 of 2021 filed by the complainant Sh. Vijay Sharma (respondent No.1 herein), by awarding refund of the sale price of the vehicle i.e. Rs.7,94,999/- upon return of the vehicle besides awarding Rs.1,00,000/- as compensation and Rs.20,000/- as costs of litigation. The order was directed to be complied with within a period of thirty days from the date of receipt of its certified copy, failing which, the awarded amounts shall attract interest @12% p.a. from the date of the order.

2]                The sole grouse of respondent No.1 before the District Commission was that he had to take his brand new vehicle for various major repairs to appellant/opposite party No.1 from whom, he had purchased the said vehicle. As per his case, the appellants during aforesaid repairs kept on changing/replacing the various parts of his brand new vehicle and finally within two months of its purchase, the engine was replaced. Thus, the complainant was harassed several times by the service station who failed to check the defect properly and kept on replacing very important and expensive parts of the vehicle. 

3]                On the other hand, the stand of the appellant/opposite party No.1 (seller/service provider) was that as and when, the complainant approached for any of the problem in the vehicle, the same was fixed/rectified. Even as a good will gesture, the engine of the vehicle was replaced and as per the opposite party No.2 (appellant in FA/99/2023), there was no inherent manufacturing defect in the vehicle. 

4]                After hearing the counsel for the parties and going through the record, the District Commission allowed the complaint, as stated above.

5]                In these appeals, while reiterating the stand taken in their respective replies filed by the appellants before the District Commission, it has been vehemently argued that respondent No.1/complainant had already sold the vehicle in question to one Sonu even before filing the consumer complaint before the District Commission and this fact was never disclosed by respondent No.1 during the pendency of the complaint and it was only on 20.02.2023, respondent No.1/complainant informed the District Commission and that too, on the date of filing arguments that he had already sold the subject vehicle during the pendency of the case and also placed on record copy of certificate of registration. It has further been argued that once respondent No.1 had sold the vehicle during the pendency of the complaint, therefore, he ceased to be a consumer within the meaning of Section 2(7) of Consumer Protection Act, 2019, which aspect has been ignored by the District Commission while passing the impugned order.

6]                Counsel for respondent No.1/complainant supported the order passed by the District Commission and prayed for dismissal of these appeals.

7]                After considering the rival contentions of the parties, the impugned order and going through the material available on record, we are of the considered opinion, that the appeals filed by both the opposite parties are liable to be accepted for the reasons to be recorded hereinafter.

8]                The moot question to be decided by this Commission in these appeals is as to whether respondent No.1/complainant is a consumer under the provisions of Section 2(7) of Consumer Protection Act, 2019, once he had sold his vehicle before filing the consumer complaint before the District Commission? Our answer to this question is in the negative. Bare perusal of record of consumer complaint transpires that the said complaint was filed on 24.05.2021 and nowhere in the body of the complaint, respondent No.1/complainant ever mentioned that he had sold his vehicle, which was the subject matter in the complaint. It is only on 20.02.2023 i.e. the date of final arguments that respondent No.1 disclosed to the District Commission that he had sold the subject vehicle to one Sonu during the pendency of the complaint and also tendered a copy of the certificate of registration. Further, bare perusal of the said Certificate of Registration transpires that the vehicle bearing Regd. No.CH01CC5359 had been sold by respondent No.1 to one Sonu S/o Balbir Singh R/o #2269/2, Mariwala Town, Manimajra, Chandigarh during the pendency of the complaint, which fact was concealed by respondent No.1/complainant. It is all the more surprising that respondent No.1 has not taken any permission from the District Commission before selling the vehicle, neither, he informed this Commission after the sale. Respondent No.1/complainant could have moved an appropriate application before the District Commission and disclose the factum of selling the subject vehicle by placing on record its certificate of registration, which he never did and it was only on the date of final arguments i.e. 20.02.2023, the factum of selling vehicle has come on record. Even, nowhere in his written arguments filed before the District Commission on 06.10.2022, respondent No.1 stated that he had sold his vehicle. We are surprised that on the date of final hearing i.e. 20.02.2023, once respondent No.1 had informed the District Commission that he had already sold the subject vehicle to one Sonu during the pendency of the complaint, what prevented the District Commission in discussing this admitted fact in the impugned order. The impugned order is totally silent on this point.

9]                It may also be stated here that it is well settled proposition of law that if the complainant sells the good/commodity/product which forms the subject matter of the complaint or appeal arising from the complaint during the pendency of the complaint or appeal, then the complainant ceases to be ‘consumer’ within the meaning of Section 2(1)(d) under the old Consumer Protection Act, 1986 and under Section 2(7) of the new Consumer Protection Act, 2019. In M/s. Honda Cars India Ltd. V/s Jatinder Singh Madan & Anr, 2013 SCC Online NCDRC 934: it has been observed that once vehicle is sold during pendency of the complaint, complainant does not remain consumer for the purposes of the Consumer Protection Act. Para 6 of the said judgment, being relevant, is reproduced as under:-

“…We have held in R.P. No. 2562 of 2012- Tata Motors Ltd. V/s Hazoor Maharaj Baba Des Rajji Chela Baba Dewa Singhji (Radha Swami) decided on 25.09.2013 that once vehicle is sold during pendency of the complaint, complainant does not remain consumer for the purposes of the Consumer Protection Act. In that judgment, we have placed reliance on I (2008) CPJ 249 (NC)- Hoshiarpur Improvement Trust V/s Major Amrit Lal Saini and judgment dated 23.04.2013 passed by this Commission in Appeal No. 466 of 2008- Mr. Rajiv Gulati V/s Authorised Signatory, M/s. Tata Engineering & Locomotive Co. Ltd. In this case, as vehicle has been sold by the complainant during pendency of appeal which was filed in the year 2007 and decided in the year 2012, complainant ceases to be a consumer under the CPA and complaint is liable to be dismissed. Had Respondent No. 1 brought this fact to the notice of State Commission learned State Commission would not have directed petitioner to replace the steering wheel and gear box assembly and other connected parts because Respondent No. 1 was not possessing vehicle at the time of passing the judgment…”

10]              Further, in Sh. G.P. Aggarwal & Anr V/s M/s T&T Motors Ltd & Ors, State Commission (Delhi), Complaint Case No.625 of 2013 decided on: 31.03.2017, it was held that if complainant sells the product during the pendency of the complaint or appeal arising from the complaint, he ceases to be ‘consumer’ within the meaning of Section 2(1)(d) of the CPA; further, if the complainant fails to disclose the Hon’ble Forum the fact that the good/commodity/product that forms the subject matter of the complaint or grievance of the complainant has been sold off or disposed of by the complainant, then it amounts to coming to the Hon’ble Forum with unclean hands. Para 7 of the judgment is relevant and it states as follows:

“…Further, the complainants have sold the vehicle during the pendency of the complaint. They cease to be “consumer” as defined under the Act. Reliance is placed on the judgment of Tata Motors Ltd. V/s Hazoor Maharaj Bala Das Rajji Chela Baba Dewa Singhji, IV (2013) CPJ 444 NC, wherein the National Commission has held that once the vehicle is sold during  the pendency of the complaint, the complainant does not remain a consumer for the purpose of the Act. Further in the judgment of M/s Honda Cars India Ltd. V/s Jatinder Singh Madan & Anr, passed by National Commission in R.P. No. 2622/2012 on 11.10.2013, wherein the vehicle in question was sold by the complainant therein during the pendency of the appeal. It was held that the complainant ceases to be a consumer within the meaning of Section 2 (1) (d) (ii) of the Act and the consumer complaint was dismissed on that sole ground…”

11]              Not only, above, the Hon’ble Supreme Court of India in Amar Singh V/s Union of India & Ors, (2011) 7 SCC 69), has held in Para 53 as under:-

“53. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts. Courts held that such litigants have come with "unclean hands" and are not entitled to be heard on the merits of their case.”

12]              Based on the above discussion, we find that respondent No.1/complainant now does not come under the definition of 'consumer' as given in the Consumer Protection Act, 2019 and as such, the impugned order is liable to be set aside.

13]              For the reasons recorded above, both the appeals bearing No.99 of 2023 & 102 of 2023 are accepted. The impugned order dated 03.03.2023 is set aside. Consumer Complaint No.344 of 2021 stands dismissed with no orders as to costs.

14]              Copy of this order be placed in the file of Appeal No.102 of 2023.

15]              Certified copies of this order be sent to the parties free of charge.

16]              File be consigned to Record Room after completion.

Pronounced.

17.08.2023.

(RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

 

(RAJESH K. ARYA)

MEMBER

 

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