Haryana

Kurukshetra

252/2017

Promil Batra - Complainant(s)

Versus

VPS Agro - Opp.Party(s)

Paras Manocha

09 May 2019

ORDER

BEFORE THE  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

Complaint Case No.252 of 2017.

Date of instt.: 05.12.2017.

                                                                         Date of Decision: 09.05.2019.

 

Promila Batra, Manager, Indraprasth Public School, Village Dayalpur, Tehsil Thanesar, District Kurukshetra.

 

                                                                ……….Complainant.                               Versus

 

1. M/s. V.P.S. Agro & Auto Pvt. Ltd. Village Khanpur Kolian, G.T. Road, Pipli, District Kurukshetra.

2. SML ISUZU Limited, E-48, 1^st Floor, above Central Bank, Hauz Khas, New Delhi- 110016 through its Senior Manager (Marketing).

3. SML ISUZU Limited, Registered Office Works: Post Bag No.38, Village Asron, District Shahid Bhagat Singh Nagar, Punjab.

 

..………Opposite parties.

 

COMPLAINT UNDER SECTION 12 OF CONSUMER PROTECTION ACT, 1986. 

                                                                                               

Before           Smt. Neelam Kashyap, President.

                       Ms. Neelam, Member.

                       Sh. Sunil Mohan Trikha, Member.

 

Present :       Sh. Paras Manocha, Advocate for the complainant.

                       Sh. B.S. Walia, Advocate for opposite parties.        

                                         

ORDER

 

                   This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Promila Batra against M/S. V.P.S. Agro & Auto Pvt. Ltd. and others, the opposite parties.

2.            Brief facts of the present complaint are that complainant has purchased a WV26S BS IV D School Bus 27 seater, maker-SML ISUZI Limited, model year-2017 on 3.5.2017 from VPS Agro & Auto Pvt. Ltd., Kurukshetra. The registration number of the vehicle is HR-65A-6769. That the aforesaid vehicle has been got insured by complainant with Bajaj Allianz General Insurance Co. Ltd. w.e.f. 3.5.2017 to 2.5.2017. It is further alleged that complainant has purchased the vehicle for Rs.12,70,000/- and the said price has been received by the seller after assuring and promising that the year of the manufacturing of the vehicle was 2017 as shown in the invoice No.VI/1328/117-18/23 dated 5.5.2017 of op no.1. The complainant purchased the vehicle of latest model as per the assurance and promise of op no.1. It is further alleged that to the utter surprise of complainant, complainant later discovered that the said vehicle is of manufacturing date 11/2016, which was not apparently reflected and detected from the documents provided by the ops. It proves the concealment and wrong declaration of the year of manufacturing and amounts to deficiency in service and unfair trade practice. It is further averred that complainant has narrated his grievance with the op no.1 but no satisfactory answer has been given to him. The registration of the vehicle has also been objected by the relevant authority on the ground of difference of manufacturing year in the documents and other record of the vehicle. As such, the complainant could not use the vehicle as per rules. It has caused harassment and mental agony to the complainant and monetary loss to him as he has to arrange other vehicle to serve the need and purpose which was required from the vehicle in question. That even on several personal visits and calls of complainant, no relief provided to her rather she has been harassed a lot. That the complainant served a legal notice upon the ops vide registered post dated 4.9.2017 and 30.10.2017 but to no effect. Hence, this complaint.

3.             Upon notice, opposite parties appeared and filed written statement taking certain preliminary objections that complainant has no locus standi, she is not the consumer, there is no privity of contract between Smt. Promila Batra and ops, she has no cause of action and that she cannot feel aggrieved of a transaction in which she is not a party, that complaint is not maintainable as the vehicle so sold by op is being used by the consumer for commercial purposes. On merits, it is submitted that complainant has not purchased vehicle from op no.1. The record of the op shows that this vehicle manufactured by ops no.2 and 3 was sold through op no.1 its authorized dealer to M/s Inderprastha Public School, village Dayalpur, District Kurukshetra vide invoice dated 5.5.2017. It appears that it has been registered by the consumer in her name and get it insured with Bajaj Alliance General Insurance Company Ltd. vide insurance policy No.OG-18-1207-1812-00000100, product commercial vehicle-Class C (ii) commencing from 3.5.2017 valid upto 2.5.2018. The said commercial vehicle has manufacturing year 2017. It is further submitted that there is no document showing the manufacturing of full vehicle of 2016. The purchaser school has met initially showing that the chassis of the vehicle was manufactured in 2016 and was so uploaded on the Government site known as e-Vehicle. Manufacturing of one or more parts of the vehicle cannot be construed as manufacturing of a vehicle itself. Different parts of the vehicle are prepared at different levels in different times. Vehicle is manufacturing assembling all parts and when it is completely manufactured it is given a model year/ manufacturing year. The vehicle in question has been assembled in 2017, its excise duty is paid in 2017 and manufacturing year is accordingly assigned to it as of 2017. There is absolutely no cheating or fraud. It is further submitted that this is the practice of manufacturing vehicles throughout the world and the purchaser of the present vehicle is aware of it. It is never guaranteed by any manufacturing company that the vehicle is manufactured in particular year, its parts are also manufactured in the same year. The complainant is misconstruing the worldly accepted manufacturing and trade practice relating to the vehicles. As and when customer approached the op no.1, he was guided in proper and adequate manner. The op has supplied vehicle to its customers giving accurate manufacturing year. The notices were ignored as those were never issued by their customer. Remaining contents of the complaint are also denied and prayer for dismissal of complaint made.

4.             Learned counsel for complainant tendered affidavit Ex.CW1/A and documents Ex.C1 to Ex.C14 and mark C1 to Mark C6. On the other hand, learned counsel for ops tendered affidavits Ex.OP1/A, Ex.OP2/A and documents Ex.R1 to Ex.R7.

5.             We have heard learned counsel for the parties and have perused the case file carefully.

6.             Learned counsel for complainant argued that complainant has purchased the Bus in question from op no.1 on 3.5.2017 on the assurance of op no.1 that year of manufacturing of vehicle is 2017 but at the time of registration of the vehicle, to the utter surprise of complainant she had come to know that op no.1 has sold the vehicle of model 2016. He has further argued that after that she sent two legal notice to the ops about their unfair trade practice. The bus in question is used by the complainant and she is user of that vehicle, so she is consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986. He has further contended that Ex.C13 shows that complainant is Manager/ President of Inderprasth Public School, Dayalpur. He has further contended that copy of form no.21 mark C shows manufacturing date of above said vehicle as 2017 but copy of registration certificate Ex.C10 clearly shows that date of manufacturing of the aforesaid vehicle is 2016 and in this way the ops have done unfair trade practice towards the complainant, so complaint of complainant may please be allowed. He has also cited case law in cases titled as Electro Audio Vision Vs. M/s Diddan Construction, 2014 (1) CLT 428 (Hon’ble Meghalaya State Commission, Shilong), M/s. Poongodhai Textiles (P) Ltd. vs. UIIC, 2013 (3) CLT 541 (Hon’ble Tamilnadu State Commission, Chennai), M/s Jay Kay Puri Engineers and another vs. M/s Mohan Breweries & Distilleries Ltd. 1996(2) CLT 102 (Hon’ble National Commission), Vijai Prakash Goyal Vs. The Network Limited, 2006(1) CLT 76 (Hon’ble National Commission) and East India Construction Co. and another vs. Modern Consultancy Services and others, 2006 (2) CLT 413.

7.             On the other hand, learned counsel for ops has contended that complainant is not  consumer of the ops. Ex.C10 shows the owner of vehicle as Indraprasth Public School and every documents show that Indraprasth public school is owner of aforesaid vehicle/ bus. He has further contended that even the invoice dated 5.5.2017 is in the name of Indraprash Public school. He has further contended that Ex.C12 registration of society shows Indraprasth Educational and Social Welfare society and Ex.C13 shows that there are nine persons as Members of the society and complainant is Manager of the society but complainant has filed the present complaint in personal capacity not on the basis of registered society. He has further contended that when there is a registered society, that society becomes legal entities and Section 30 of CPC also clearly shows who can file the suit and the present complaint filed by complainant alone is not maintainable. He has further contended that Smt. Promila is not purchaser of the vehicle nor she is user of the vehicle within the meaning of Section 2 (1) (d) of the Act. He has further contended that it is a commercial vehicle used by school and school has taken transportation charges from the children, so the present complaint is not maintainable. The next point raised by learned counsel for ops is that every documents which is on the file given by ops show manufacturing year 2017 but only one document Ex.C10 shows date of manufacturing of above said vehicle as 11/2016. He has further contended that registration authority has not been made as a party to the present complaint by the complainant and so it is not clear that how they change the date of manufacturing of said vehicle and prayed for dismissal of the complaint. He has cited case law in case titled as K.M. Maregowda Versus M/s. Seven Hills Ex-Import Corporation, Bangalore, 2005(1) RCR (Criminal) 356 (Hon’ble Karnataka High Court) and Tarachand vs. Hulkar Mal and others, AIR 1979 Delhi 160.

8.             We have considered the rival contentions of the parties and have gone through the case file as well as law laid down by learned counsel for the parties.

9.             First of all, we have to determine that complaint filed by complainant Smt. Promila is maintainable or not? The invoice dated 5.5.2017 mark C4 is in the name of Indraprasth Public School, village Dayalpur, Kurukshetra. Further all other documents available on file regarding the bus in question are in the name of Indraprasth Public School, Kurukshetra. The complainant claims to be the President/ Manager of that school but since there are other eight members of the registered society of the school and there is nothing on record that complainant Smt. Promila exclusively purchased the bus in question for own use, the complainant cannot be said to be the consumer of the ops. The complainant has not placed on file any power of attorney on behalf of other members of the registered society which is a legal entity.  In this regard the Hon’ble Delhi High Court in case titled as Tarachand vs. Hulkar Mal and others (supra) has held that “Where a sum of money is due to a partnership firm, such a sum can be recovered either in a suit brought by all the partners of the firm or in a suit filed in accordance with O. 30 R. 1 in the name of the firm. Suit by one partner alone in his name is not maintainable.” In the matter of the registered society which has a number of partners, Section 30 (1) of the CPC would apply. Further more, the complainant does not fulfill the requirement of Section 2(1)(d) of the Consumer Protection Act, 1986 which reads as under: -(d) “consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) ¹² [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ¹² [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person ¹³ [but does not include a person who avails of such services for any commercial purpose].

 

10.            In view of above said Section of the Consumer Protection Act, 1986, the complainant cannot be said to be the consumer of the ops as there is nothing on file to show that complainant purchased the bus in question for her use or availed service of the ops for a consideration. Further more, the bus in question is being used for commercial purposes in the school for transportation of the students for which requisite transportation charges are being charged by the school. In document Ex.C11 i.e. certificate cum policy schedule, the type of the vehicle is mentioned as commercial vehicle and as such present complaint is not maintainable before this Forum. Further, the registration authority has not been impleaded as a party in the present complaint and therefore, it cannot be said that how the manufacturing year as 2016 was mentioned in the registration certificate of the vehicle. The authorities cited by learned counsel for complainant are not disputed but same are not applicable to the facts and circumstances of the present case since the complainant has failed to establish that she is consumer of the ops or that she alone is competent to file the complaint on behalf of a legal entity.

11.            In view of the above, we find no merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.

Announced in open Forum:

Dt.: 09.5.2019.                                           (Neelam Kashyap)

                                                                        President.

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.