State Consumer Disputes Redressal Commission
V.E. Commercial Vehicles Ltd. & Anr. vs Sh. Suresh Sharma. & Anr. on 12 October, 2017
H. P. STATE CONSUMER DISPUTES
REDRESSAL COMMISSION SHIMLA
(A) First Appeal No. : 52/2017
Date of Presentation: 10.03.2017
Order Reserved On : 05.07.2017
Date of Order : 12.10.2017
......
1. V.E. Commercial Vehicles Ltd. 102 Industrial Area
No.1 Pithampur District Dhar M.P. 454 775.
2. V.E. Commercial Vehicles Ltd. SCO No. 1 First
Floor Sector 16 Panchkula through Mr. Sumit
Kumar Dy. Manager.
...... Appellants/Opposite parties No.1 & 2
Versus
1. Suresh Sharma s/o Late Shri R.K. Sharma r/o Village
Dohai Post Office Dubloo Tehsil Junga District
Shimla H.P.
......Respondent/Complainant
2. Swami Auto Care Co. Authorized Dealers: V.E.
Commercial Vehicles Limited Village Nagali Post
Office Barog Tehsil and District Solan H.P. - 173
212.
Second address:
Swami Auto Care Co. Authorized Dealers: V.E.
Commercial Vehicles Limited Village Bypass Road
Malyana Shimla H.P. through its Manager.
......Respondent/Opposite party No.3
For Appellants : Mr. S.R. Bansal Advocate.
For Respondent No.1: Mr. Ravi Shankar Sood
Advocate.
For Respondent No.2: Mr. Prince Chauhan Advocate vice
Mr. Rahul Mahajan Advocate.
(B) First Appeal No. : 120/2017
Date of Presentation: 22.03.2017
Order Reserved On : 05.07.2017
Date of Order : 12.10.2017
(F.A. No.52/2017)
&
(F.A. No.120/2017 )
Swami Auto Care Company Authorized Dealers: V.E.
Commercial Vehicles Limited Village Nagali Post Office
Barog Tehsil and District Solan H.P. - 173 212.
Second address:
Swami Auto Care Co. Authorized Dealers: V.E.
Commercial Vehicles Limited Village Bypass Road
Malyana Shimla H.P. through its Manager.
...... Appellant/Opposite Party No.3
Versus
1. Suresh Sharma s/o Late Shri R.K. Sharma r/o Village
Dohai Post Office Dubloo Tehsil Junga District
Shimla H.P.
...... Respondent/Complainant
2. V.E. Commercial Vehicles Ltd. 102 Industrial Area
No.1 Pithampur District Dhar M.P. 454 775.
3. V.E. Commercial Vehicles Ltd. SCO No. 1 First
Floor Sector 16 Panchkulla Haryana.
...... Respondents/Opposite parties No.1 & 2
For Appellant :
Mr. Prince Chauhan Advocate vice
Mr. Rahul Mahajan Advocate.
For Respondent No.1 : Mr. Ravi Shankar Sood
Advocate.
For Respondents No.2&3: Mr. S.R. Bansal Advocate.
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Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
JUSTICE P.S. RANA (R) PRESIDENT :
O R D E R :-
1. Appeal No.52/2017 & Appeal No.120/2017 1 Whether reporters of the local papers may be allowed to see the order? Yes. 2
(F.A. No.52/2017) & (F.A. No.120/2017 ) filed against same order passed by learned District Forum in consumer complaint No.81/2012 title Suresh Versus V.E. Commercial Vehicles Ltd. & Ors. Both appeals are consolidated for disposal in order to avoid conflicting orders.
Brief facts of Case:
2. Shri Suresh Kumar filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that opposite parties No.1 & 2 are manufactures of Eicher Truck and other vehicles. It is pleaded that opposite party No.3 is the authorized dealer of opposite parties No.1 & 2. It is further pleaded that complainant purchased Eicher truck from opposite party No.3 on dated 06.10.2011 in consideration amount of Rs.1085000/-(Ten lac eight five thousand). It is pleaded that truck was financed by PNB Janedghat Tehsil and District Shimla. It is pleaded that truck was registered as registration No.HP-63-B 1208. It is further pleaded that warranty card was also given for thirty six month. It is pleaded that after purchase within a month it was observed by the complainant that vehicle sold was defective in nature as there was lot of unusual sound vibration and bubbling of wheels. It is further pleaded that mechanical defect occurred in the vehicle when the vehicle was approaching to Delhi with loaded Apples 3 (F.A. No.52/2017) & (F.A. No.120/2017 ) near place Khab from Kinnaur (H.P). It is pleaded that consignment of Apples was to be shifted to other vehicle. It is further pleaded that complaint was lodged and after preliminary inspection gear box of vehicle was replaced. It is pleaded that thereafter vehicle was brought to workshop for further repairs. It is further pleaded that vehicle remain in workshop for three days and thereafter vehicle was handed over to complainant. It is pleaded that complainant was assured that defect would not occur again. It is pleaded that thereafter it was noticed that vehicle was not fit for plying on the public road. It is further pleaded that again vehicle was checked and some repairs conducted but ultimately truck became non-operational. It is pleaded that thereafter again the vehicle was brought to workshop but defect was not rectified. It is further pleaded that there was major manufacturing defect in the vehicle. It is pleaded that complainant purchased the vehicle to earn his livelihood. Complainant sought relief of replacement of vehicle or refund of entire sale amount alongwith interest @ 18% per annum. In addition complainant also sought relief of Rs.365000/-(Three lac sixty five thousand) as damages harassment and litigation charges alongwith interest @ 18% per annum. In alternative complainant also sought relief for extension 4 (F.A. No.52/2017) & (F.A. No.120/2017 ) of warranty period of vehicle for three years and also sought direction to the opposite parties to pay installments of bank loan.
3. Per contra version filed on behalf of opposite parties No.1 & 2 pleaded therein that complainant has purchased the vehicle for commercial purpose hence learned District Forum has no jurisdiction to decide the complaint. It is pleaded that there was no mechanical defect in the vehicle. It is admitted that opposite parties No.1 & 2 are the manufacturers of vehicle and opposite party No.3 is authorized dealer. It is further pleaded that relationship between opposite party No.3 and opposite parties No.1 & 2 are on the basis of principle to principle basis. It is pleaded that controversy is between complainant and opposite party No.3 only and it is pleaded that opposite parties No.1 & 2 have been impleaded without any cause of action in the complaint as co-party. It is further pleaded that there was no mechanical defect in the vehicle. Prayer for dismissal of complaint sought.
4. Per contra separate version filed on behalf of opposite party No.3 pleaded therein that complainant has purchased the vehicle for commercial purpose and jurisdiction of learned District Forum is barred. It is pleaded that complicated question of facts and law are 5 (F.A. No.52/2017) & (F.A. No.120/2017 ) involved in the complaint. It is further pleaded that there was no mechanical defect in the vehicle. It is further pleaded that complainant has concealed the material facts and did not approach the Forum with clean hands. It is admitted that opposite parties No.1 & 2 are manufactures of vehicle and opposite party No.3 is authorised dealer of the vehicle. It is pleaded that complainant did not pay the repairs bill to the tune of Rs.6487/-(Six thousand four hundred eight seven). It is denied that truck became non-operational. It is denied that complainant purchased the truck to earn his livelihood. It is denied that complainant had suffered heavy loss. Prayer for dismissal of complaint sought.
5. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum partly allowed the complaint and ordered opposite parties to pay a sum of Rs.3.00 lac alongwith interest @ 9% per annum from the date of filing of complaint till payment. In addition learned District Forum also ordered opposite parties to pay a sum of Rs.10000/-(Ten thousand) as punitive compensation on account of harassment and mental agony. Learned District Forum further ordered opposite parties to pay litigation costs to the complainant to the tune of Rs.5000/-(Five thousand). Feeling aggrieved against the 6 (F.A. No.52/2017) & (F.A. No.120/2017 ) order passed by learned District Forum opposite parties No.1 & 2 i.e. V.E. Commercial Vehicles Ltd. & Anr. filed appeal No.52/2017 and opposite party No.3 i.e. Swami Auto Care Company filed appeal No.120/2017 before H.P. State Commission.
6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeals.
1. Whether appeal No.52/2017 title V.E. Commercial Vehicles Ltd. & Anr. Versus Suresh Sharma & Anr. and appeal No.120/2017 title Swami Auto Care Company Versus Suresh Sharma & Ors. are liable to be accepted as mentioned in memorandum of grounds of appeals.
2. Final order.
Findings upon point No.1 :-
8. Complainant filed affidavit in evidence.
There is recital in affidavit that opposite parties No.1 & 2 are manufacture of vehicle and opposite party No.3 is authorized dealer of opposite parties No.1 & 2. There is further recital in affidavit that deponent purchased vehicle manufactured by opposite parties No.1 & 2 from opposite party No.3 in consideration amount of Rs.1085000/-(Ten lac eight five thousand) on dated 06.10.2011. There is recital in affidavit that after 7 (F.A. No.52/2017) & (F.A. No.120/2017 ) purchase defect occurred in the vehicle. There is further recital in affidavit that vehicle several times brought to the workshop of opposite party No.3 but opposite party No.3 did not rectify the defect. There is recital in affidavit that warranty card was also given for thirty six month. There is further recital in affidavit that vehicle was breakdown due to mechanical defect when the vehicle was approaching from Kinnaur (H.P) to Delhi with loaded apples near place Khab (H.P). There is further recital in affidavit that hydraulic system controls the functioning of steering and due to this defect steering was once locked and deponent escaped a major accident. There is recital in affidavit that there was also defect in the brake pressure which was not cured.
9. Complainant also filed affidavit of Shri Pradeep Kumar in evidence. There is recital in affidavit that deponent is a conductor in vehicle No.HP-63B- 1208. There is further recital in affidavit that immediately after purchase deponent was employed as conductor in the vehicle. There is further recital in affidavit that there were many defects in the vehicle such as gear box defect, steering locking defect, brake defect etc. There is recital in affidavit that defects were not rectified by opposite parties. There is further recital in affidavit that there was lot of sound vibration and 8 (F.A. No.52/2017) & (F.A. No.120/2017 ) bubbling of wheels. There is further recital in affidavit that vehicle was breakdown and develop mechanical defect when vehicle was proceeding from Kinnaur (H.P) to Delhi with loaded Apples near place Khab (H.P). There is further recital in affidavit that hydraulic system of vehicle was also defective.
10. Opposite parties No.1 & 2 also filed affidavit of Shri Gautam authorised representative of opposite parties. There is recital in affidavit that complainant had purchased vehicle for commercial purpose. There is further recital in affidavit that complicated question of facts and law are involved in the present case. There is recital in affidavit that there was no manufacturing defect in the vehicle. There is recital in affidavit that relationship between opposite party No.3 and opposite parties No.1 & 2 are on the basis of principle to principle basis. There is further recital in affidavit that opposite parties No.1 & 2 have manufactured the vehicle and opposite party No.3 has purchased the vehicle from opposite parties No.1 & 2 and thereafter sold to complainant at their own level. There is further recital in affidavit that controversy is between complainant and opposite party No.3. There is recital in affidavit that complaint against opposite parties No.1 & 2 is not maintainable.
9
(F.A. No.52/2017) & (F.A. No.120/2017 )
11. Opposite party No.3 filed affidavit of Shri Rakesh. There is recital in affidavit that complainant has purchased the vehicle for commercial purpose and complicated question of facts and law are involved in the present case. There is recital in affidavit that there was no manufacturing defect in the vehicle. There is further recital in affidavit that opposite party No.3 removed the defect from the vehicle. There is recital in affidavit that complainant did not pay repairs bill amounting to Rs.6487/-(Six thousand four hundred eight seven) to opposite party No.3 despite repeated requests. There is further recital in affidavit that vehicle was repaired to the entire satisfaction of the complainant. There is further recital in affidavit that complainant has plied the vehicle for 32569 KMs up to 26.07.2012 within 10 months. There is further recital in affidavit that question of breakdown does not arise at all. Complainant also filed interrogatories to opposite party No.3 and opposite party No.3 replied the interrogatories.
12. Submission of learned Advocate appearing on behalf of opposite parties No.1 to 3 that learned District Forum has no territorial jurisdiction to entertain and decide the complaint is decided accordingly. Complainant has mentioned second address of opposite party No.3 as Swami Auto Care at By Pass road Malyana 10 (F.A. No.52/2017) & (F.A. No.120/2017 ) Shimla (H.P) in complaint. Swami Auto care has not refuted second address mentioned in complaint. Territorial jurisdiction to file complaint is defined under Section-11 of Consumer Protection Act 1986 which is quoted in toto:-
11. Jurisdiction of the District Forum.--
(1) Subject to the other provisions of this Act the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation if any claimed does not exceed rupees twenty lakhs.
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction--
(A) The opposite party or each of the opposite parties, where there are more than one at the time of the institution of the complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain or (B) Any of the opposite parties where there are more than one at the time of the institution of the complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain provided that in such case either the permission of the District Forum is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain as the case may be acquiesce in such institution or (C) The cause of action wholly or in part arises.
It is held that in view of second address of opposite party No.3 Swami Auto Care within territorial jurisdiction of District Shimla (H.P) District Consumer Forum has territorial jurisdiction to entertain and decide complaint. It is held that part of cause of action also arises to complainant with territorial jurisdiction of District Consumer Forum Shimla H.P because consideration amount of sale was paid to opposite party 11 (F.A. No.52/2017) & (F.A. No.120/2017 ) No.3 by way of demand draft at place Janedghat Shimla H.P. on dated 04.10.2011 vide annexure-C-I.
13. Submission of learned Advocate appearing on behalf of opposite parties No.1 to 3 that vehicle was purchased by complainant for commercial purpose and consumer Forum has no jurisdiction to entertain and decide the complaint is also decided accordingly. Complainant has specifically mentioned in para No.7 of the complaint that vehicle was purchased by complainant for earning his livelihood. Opposite parties No.1 to 3 did not adduce any cogent reliable evidence on record in order to prove that vehicle was not purchased by complainant for earning his livelihood. Explanation was added in Consumer Protection Act 1986 w.e.f. 15.03.2013 wherein it is specifically mentioned that any goods bought and any service availed exclusively for earning livelihood would come within the definition of consumer as defined under section 2(d) of Consumer Protection Act 1986. In view of above stated facts it is held that complainant falls within definition of consumer as defined under Consumer Protection Act 1986.
14. Submission of learned Advocate appearing on behalf of opposite parties No.1 to 3 that complainant did not adduce any evidence of expert regarding 12 (F.A. No.52/2017) & (F.A. No.120/2017 ) manufacturing defect and on this ground appeal be allowed is decided accordingly. It is well settled law that manufacturing defect can be proved by way of expert evidence only. In the present case complainant has not adduced any expert evidence hence it is held that manufacturing defect in the vehicle is not proved in the present complaint. See 2017(3) CPR 259 NC Ajay Kumar Versus M/s. Anand Auto Mobile and other.
15. Submission of learned Advocate appearing on behalf of opposite parties No.1 & 2 that relation between opposite parties No.1 & 2 and opposite party No.3 were on the basis of principle to principle basis and opposite parties No.1 & 2 are not legally liable to pay any amount to complainant is decided accordingly. State Commission is of the opinion that vehicle was manufacture by opposite parties No.1 & 2. It is well settled law that warranty card is always issued by manufacturer and not issued by dealers. It is proved on record that defect occurred in the vehicle during warranty period. It is well settled law that manufacturers and dealers are under legal obligation to remove the defect during warranty period free of costs. In view of the fact that warranty card was issued by manufacturer hence it is held that opposite parties No.1 13 (F.A. No.52/2017) & (F.A. No.120/2017 ) & 2 are legally liable for repairs of vehicle during warranty period free of costs.
16. Submission of learned Advocate appearing on behalf of opposite parties No.1 to 3 that learned District Forum has granted excessive compensation for financial loss to complainant to the tune of Rs.3.00 lac due to non-plying of vehicle is decided accordingly. Learned District Forum has mentioned in para NO.8 of the order that vehicle remain non-ply for about four month. Complainant has specifically mentioned in complaint that vehicle remain in the workshop for 3 days initially in para No.5 of complaint and complainant also mentioned that thereafter again vehicle was brought to workshop on 06.11.2011 and remain in the workshop till 07.12.2011 in para No.6 of complaint. Thereafter complainant has mentioned in para No.7 that vehicle remain in the workshop for repairs for 15 days. In view of the above stated facts it is held that learned District Forum has granted excessive damage to complainant. State Commission is of the opinion that damage ought to have been granted for thirty nine days only because plea of complainant that vehicle was not plied for four months upon public road is not corroborated with any evidence. 14
(F.A. No.52/2017) & (F.A. No.120/2017 ) Pradeep Kumar conductor best eye witness did not state in affidavit that vehicle was not plied on public road for four months. Plea of complainant that vehicle was not plied for four months upon public road is defeated on the concept of ipse dixit (An assertion made without proof). Hence in view of above stated fact damage granted to the tune of Rs.3.00 lac is liable to be reduced.
17. Submission of learned Advocate appearing on behalf of opposite parties No.1 to 3 that learned District Forum has granted excessive punitive compensation to complainant on account of mental agony is decided accordingly. State Commission is of the opinion that vehicle of complainant was not plied for about thirty nine days due to defects in the parts of the vehicle hence it is held that punitive compensation granted by learned District Forum as Rs.10000/-(Ten thousand) for mental agony is not excessive but is reasonable amount.
18. Submission of learned Advocate appearing on behalf of opposite parties No.1 to 3 that learned District Forum has granted excessive litigation costs to the tune of Rs.5000/-(Five thousand) is also decided accordingly. State Commission is of the opinion that complainant has to engage advocate for filing and contesting complaint and complainant also incurred 15 (F.A. No.52/2017) & (F.A. No.120/2017 ) expenditure on typing and service charges hence it is held that litigation amount granted by learned District Forum is not excessive but is reasonable in nature.
19. Submission of learned Advocate appearing on behalf of opposite parties No.1 to 3 that complicated questions of laws and facts are involved in present complaint and complainant be relegated to civil court for redressal of his grievances is decided accordingly. State Commission is of the opinion that no complicated questions of laws and facts are involved in present complaint. It is not expedient in the ends of justice and on the principles of natural justice to relegate complainant to civil court.
20. Submission of learned Advocate appearing on behalf of complainant that order of learned District Forum is strictly in accordance with law and as per proved facts is decided accordingly. State Commission is of the opinion that learned District Forum has granted excessive damage amount to the tune of three lac to complainant contrary to proved facts which deserves interference by State Commission. It is held that learned District Forum has not granted equitable compensation to complainant for non-plying of vehicle on the public road. Point No.1 is decided accordingly. 16
(F.A. No.52/2017) & (F.A. No.120/2017 ) Point No.2 : Final Order
21. In view of findings upon points No.1 both appeals are partly allowed. Damage amount granted by learned District Forum to the tune of Rs.3.00 (Three) lac to complainant is reduced to Rs.1.00 (One) lac alongwith interest @ 9% per annum from the date of filing of complaint till realization. Punitive compensation of Rs.10000/-(Ten thousand) awarded by learned District Forum is affirmed. Litigation costs awarded by learned District Forum to the tune of Rs.5000/-(Five thousand) is also affirmed. Order of learned District Forum is modified to this extent only. Certified copy of order be placed in the file of F.A. No.120/2017 forthwith. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Both Appeals i.e. F.A. No.52/2017 & F.A. No.120/2017 are disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 12.10.2017.
K.D* 17