State Consumer Disputes Redressal Commission
The Managing Director,Mahindra & ... vs A. Vijayasingam,Pandalur Consumer ... on 11 August, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan, M.A.,B.L., MEMBER I Thiru S. Sambandam, B.Sc., MEMBER II F.A.NO.426/2008 (Against order in O.P.NO.12/2006 on the file of the DCDRF, Ooty) DATED THIS THE 11th DAY OF AUGUST 2010 The Managing Director Mahindra & Mahindra Finance Company Near A.T.C., Coonoor Road Ootacamund, The Nilgiris Appellant / Opposite party Vs. 1.
A. Vijayasingam President Pandalur Consumer Protection Society P.No.98/2005, Cherambadi Tan Tea Mangarange Post, Pandalur Taluk The Nilgiris
2. V. Nagaiah S/o. Velayudham D.No.7/180, Cerangode Check Post Cherangode Post, Pandalur The Nilgiris Respondent / Complainant The Respondent as complainant filed a complaint before the District Forum against the Appellant / opposite party praying for the direction to the opposite party to pay Rs.2,81,320/-. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.10.10.2007 in COP No.12/2006.
This petition coming before us for hearing finally today. Upon hearing the arguments of the counsel on either side, this commission pronounced the following order in the open court:
Counsel for the appellant/ opposite party: Mr. K. Senthilkumar, Counsel Counsel for the respondents/ Complainants: Mr. A. Palaniappan, Counsel M. THANIKACHALAM J, PRESIDENT (Open court)
1.
The opposite party is the appellant.
2. The 2nd respondent/ 2nd complainant, had purchased a Mahindra Champion Auto, manufactured by Mahindra and Mahindra, from its dealer SJP Motors, on 23.6.2005, for which this opposite party financed. The user of the vehicle, by the 2nd complainant, proved to be not worthy, since it had manufacturing defect, causing other related problems. Because of the problems, since it was not rectified, the complainant felt there was deficiency in service, and therefore, he has filed the case against the financier alone, for the recovery of a sum of Rs.2,81,320/-, representing the value of the vehicle, payment made by the 2nd complainant, repair charges of Rs.4000/-, in addition to a sum of Rs.50000/-, for mental agony, as if this monetary loss had occurred to him, by the act of the opposite party.
3. The opposite party/ appellant, though received notice, unfortunately failed to appear before the District Forum, and contested the case.
4. The District Forum, by going through the documents viz. Ex.A1 to A20, as well as perusing the affidavit, filed on behalf of the complainant, came to the conclusion, that the vehicle had manufacturing defect, and inspite of attending the repair work, the vehicle has not run normally, for that the opposite party, should be held responsible, as if he has committed deficiency in service. Taking this view, a direction came to be issued to supply a new vehicle, which was not the prayer, as well slapped a compensation of Rs.10000/-, with cost of Rs.1000/- as per the order dt.10.10.2007, which is under challenge.
5. Heard the learned counsel for the appellant. No representation for respondents/ complainants. Perused the lower court records, as well as the order passed by the District Forum.
6. Admittedly, the opposite party is not the manufacturer of the vehicle, who is answerable to the manufacturing defect if any, in the vehicle, or anyother defects in the vehicle, compelling them to rectify the same, within the period of warranty or otherwise. Neither the manufacturer, nor the dealer, from whom the vehicle was purchased, was impleaded as party. The complainant, as per the averments in the complaint, if at all ought to have proceeded only against manufacturer, and the dealer, certainly not against the financier, though it is a sister concern of the manufacturer company. Though the name resembles the same, it has separate legal entity, and not answerable to the mistake if any committed by Mahindra and Mahindra, the manufacturer of the vehicle, in question. Similarly the opposite party being a financier, is also not responsible, if the dealer has committed any deficiency, in not repairing the vehicle properly to the satisfaction of the consumer/ complainant.
The role of the opposite party was to finance the vehicle, which is repayable in equal monthly instalments, as per the schedule, arrived in the Hire Purchase agreement. If the vehicle had not run to the satisfaction of the complainant, the financier cannot be held responsible, at any stretch of imagination.
7. As reported in the complaint itself, voluntarily it seems, the complainant had surrendered the vehicle to the dealer. It is not known, thereafter what had happened to the vehicle. Since the vehicle has been surrendered by the complainant to the dealer, not to the financier, it is not open to say for the complainant, that they will not pay the hire purchase amount, or the Hire Purchase Agreement should be terminated, as claimed. Irrespective of the alleged manufacturing defect and irrespective of the deficiency in service, if any had committed by the dealer, the financial liability is there, and by filing a case, the financier cannot be deprived, of their legitimate right to recover the amount. In this case, against all the legal norms, a case has been filed, only against financier, who is entitled to receive the balance from the 2nd complainant, and an adverse order also has been slapped, against him, to supply a new vehicle, which is not possible for the financier, since he is neither a manufacturer, nor a dealer, as the case may be. The fact, that the opposite party remained exparte, does not mean, that the complainant should have an order, in their favour, as of right, and the lower forum failed in its duty to test the case properly.
7. As rightly submitted by the learned counsel for appellant, if the lower forum had gone through the documents, applied its mind, it would not have committed this kind of deficiency, in passing an erroneous order. Before filing the case, as seen from Ex.A17, notice has been issued, complaining the defects in the vehicle, only to the dealer, by name M/s. SJB Motors, as well to the financer also. In the notice, no deficiency has been attributed against the finance company, though a feeble attempt has been made, at the end of the notice, as if the complainant had surrendered the vehicle to the company, and he is unable to continue the High Purchase Contract with the financier, and therefore, he has no alternative, except to terminate the Hire Purchase Agreement. As adverted to above, under law, the complainants are not entitled to terminate the Hire Purchase Agreement, when the financier had not seized the vehicle, or when the amount due to the financier has not been paid by the borrower etc. Thus the liability to the opposite party viz. the financier, is well available and unilaterally, the 2nd complainant is not entitled to terminate the contract, for the alleged deficiency, said to have been committed, probably either by the manufacturer or by the dealer of the vehicle. When the document was produced before the District Forum, they ought to have gone through the document, if they had gone through the document certainly in our opinion, they would not have committed this kind of grave mistake, issuing direction to replace the vehicle by the financier, depriving their right also, penalizing them doubly.
8. In the complaint also, we find no accusation against the opposite party, as if they have committed deficiency, thereby they should be held responsible.
In fact, the complaint would read, that they have handed over the vehicle to the Mahindra Company, probably meaning the manufacturer, and from the complaint also, it is seen the Managing Director has been impleaded as party originally, but unfortunately that was scored out and the opposite party was shown in that place. The District Forum, also even without properly going through the averments, and the opposite party shown, is answerable to the claim, had taken the case on file, without maintainability, which mistake continued, even while passing the order, which should be upset, for which reason, the appeal deserves to be accepted.
9. In the result, the appeal is allowed, setting aside the order of the District Forum in O.P.No.12/2006 dt.10.10.2007, and the complaint is dismissed. Under the facts and circumstances of the case, there will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
S.SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/Open court-