State Consumer Disputes Redressal Commission
Jaspal Singh vs Makkar Motors Pvt. Ltd. Agency And ... on 8 August, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.67 of 2023
Date of institution : 30.01.2023
Reserved On : 24.07.2024
Date of decision : 08.08.2024
Jaspal Singh, s/o Kewal Singh, r/o Mehatpur, Tehsil Balachaur,
District Shaheed Bhagat Singh Nagar, Aadhaar Card
No.908897261681, Mobile No: 97797 48390.
......Appellant/Complainant
Versus
1. Makkar Motors Private Limited Agency, Village Jethu Mazara
(Chandigarh Road, Nawanshahr), Tehsil Nawanshahr, District
Shaheed Bhagat Singh (Mobile No: 0181-2632613).
2. Mahindra and Mahindra Finance Service Limited, Agarwal
Cooperate Tower, Plot No.23, 3rd and 4th Floor, Rajindra Palace,
New Delhi-110008, through its General Manager.
.....Respondents/Opposite Parties
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against
the order dated 22.09.2022 passed by the
District Consumer Disputes Redressal
Commission, Shaheed Bhagat Singh,
Nagar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mr. Vishav Kant Garg, Member.
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellant : Sh. Babneet Singh, Advocate for Sh. Rakesh Verma, Advocate (Legal Aid Counsel) For the respondents : None F.A. No.67 of 2023 2 VISHAV KANT GARG, MEMBER This Appeal has been filed by the Appellant/Complainant under Section 41 of the Consumer Protection Act, 2019 (in short 'The Act') being aggrieved by the impugned Order dated 22.09.2022 passed by the District Consumer Disputes Redressal Commission, Shaheed Bhagat Singh, Nagar (in short 'the District Commission) whereby the Complaint of the Complainant stands dismissed with no order as to costs.
2. It would be apposite to mention that hereinafter the parties will be referred, as had been arrayed before the District Commission. M.A. No.146 of 2023 (Delay)
3. This Application has been filed by the Appellant for condonation of delay of 85 days in filing the Appeal, which is supported by an affidavit.
4. None had appeared on behalf of the Respondents despite service.
5. We have heard the arguments raised by learned proxy Counsel for the Appellant.
6. Simply it has been mentioned in the Application that the delay has occurred due to non-availability of certain documents but nothing has been mentioned about the list of documents which were not available. It appears that the Applicant has taken a vague plea for condonation of delay of 85 days. Each and every day delay is required to be explained to condone the delay. No cogent and sufficient reasons have been mentioned in the Application for condonation of delay. The Application has been prepared in a casual manner. The Hon'ble Supreme Court in case "Anshul Aggarwal Vs. New Okhla Industrial Development Authority", 2011 (14) F.A. No.67 of 2023 3 SCC 578 has held that while deciding the application for condonation of delay in the cases under the Consumer Protection Act, 1986, the Court has to keep in mind that a specified period of limitation has been prescribed under the Act while filing the Appeals and Revisions in Consumer matters and the object of expeditious adjudication of the consumer disputes would be defeated/frustrated, if the highly belated petitions are entertained.
7. As a sequel to above discussion, finding no merit in the Application for condonation of delay the same is hereby dismissed. Main Case
8. Briefly, the facts of the case as made out by the Complainant before the District Commission are that in the month of June 2018, the Appellant/Complainant has purchased one Mahindra Pickup by obtaining finance from Mahindra and Mahindra Finance Service through Respondent No.1/OP No.1 i.e. Makkar Motors Private Limited Agency. The registration number is PB-07-BP-9038. Complainant is handicapped person and he was not having other income source except the said vehicle. To drive the said vehicle, he engaged one driver on salary basis and salary of the driver and repayment of monthly loan was depended on income of said vehicle. In December 2019, for minor repair and service of the said vehicle, he handed over the vehicle to OP No.1. OP No.1 has raised demand of Rs.13,000/- for repair and assured to hand over the vehicle after three days. But OP lingered on the matter on one pretext or the other, meanwhile, lockdown had been imposed in March, 2020 and after finishing the lockdown, OP had not handed over the vehicle. On number of visits, the OP had failed to deliver the vehicle. Earlier, the Complainant had filed one case, bearing No.CC/77/2021 dated 05.10.2021 before District Commission. In F.A. No.67 of 2023 4 compliance of the order dated 04.02.2021 passed by the District Commission, the Complainant had paid requisite repair charges of Rs.11,000/- on 25.02.2022 in cash. After the order of this Commission, the OP had not given the vehicle on 24.04.2022 and demanded diesel for vehicle upon which the Complainant had purchased the diesel for Rs.500/-. Due to said behaviour of OP, the Complainant had suffered financial loss. Complainant had visited to OP No.2 at Nawanshahr Office for depositing the installments but OP No.2 had demanded previous outstanding. In this way, in connivance with each, the OP No.2 have recovered the vehicle on 13.05.2022 at Ludhiana. Prayer had been made that the OP No.1 be directed to pay compensation for loss suffering financial loss by the Complainant.
9. Upon notice, OP No.1 had failed to appear and proceeded against ex-parte vide order dated 18.07.2022 by the District Commission.
10. OP No.2 had appeared before District Commission through Counsel and filed reply by raising certain preliminary objections that the Complaint is not maintainable, as the vehicle in question was used by the Complainant as commercial heavy vehicle as shown in insurance certificate, registration certification and loan account statement. Complainant had not come to this Commission with clean hands; Complainant was misusing the process of law by filing present Complaint as he had defaulted in paying the installments. The award has already been passed against the complainant on 31.12.2021. The OPs had obtained the order U/s 17 of Arbitration and Conciliation Act, on 01.09.2021 to repossess the vehicle in question. Complaint is bad for non-joinder of necessary parties as Complainant had not made the manufacturer of vehicle as a party in the complaint. The OP F.A. No.67 of 2023 5 had intimated the police on 13.05.2022 before taking the custody of vehicle and on 13.05.2022 after taking the custody of vehicle, the OP had also informed the police regarding the same. The OP had sent a pre-sale notice to Complainant as well as to the guarantor but they did not bother the same, thereafter the vehicle was sold in auction after completing all the formalities. But amount is still pending against the complainant as per account statement. This Court had no jurisdiction to entertain and try the same, because arbitration award had already been passed on 31.12.2021 and present complaint filed on 17.05.2022. All other averments of the complainant were denied and dismissal of the complaint with costs was prayed.
11. Complainant and OP No.2 led their respective evidence in support of their contentions before the District Commission.
12. By considering the averments made in the Complaint as well as in the reply thereof, the Complaint filed by the Complainant was dismissed by the District Commission vide order dated 22.09.2022. The relevant part of the said order is reproduced as under:-
"9. It was ordered that the vehicle in dispute is the necessity for earning livelihood of complainant. So in the interest of justice, application is allowed and the OP-2 is restrained from alienation of vehicle in dispute, till pendency of complaint and directed to handover the vehicle back to complainant, after receipt of payment of 50% installment due qua loan account from complainant within 15 days, as per statement given in this Commission by complainant.
10. But the in compliance of said order dated 02.06.2022, the complainant has failed to comply with the said order. As such, vide order dated 27.06.2022, the said stay stands vacated. Further, from the pleading of the complaint, the complainant has not sought any relief against OP-2. Hence, this complaint against OP-2 stands dismissed. Moreover, relief against OP-1 has already been granted by this Commission in earlier complaint No.77/2021.
11. In view of the above discussion, this complaint stands dismissed with no order as to costs.F.A. No.67 of 2023 6
13. The Appellant/Complainant has filed the present appeal being aggrieved by the order dated 22.09.2022 passed by the District Commission with the prayer to pay/compensate the financial loss of 26 months and harassment of the Appellant. He also prayed that the Judgment/Order dated 22.09.2022 passed by the District Commission, Shaheed Bhagat Singh Nagar, Punjab in case No.CC/45 of 17.05.2022 titled as "Jaspal Singh Vs. Makkar Motors" be set-aside/reversed.
14. Sh. Babneet Singh, Advocate, learned proxy Counsel for the Appellant has submitted that the Appellant had purchased Mahindra Pickup by financing a service loan in the month of June, 2018 for earning his livelihood from Respondent No.1 i.e. Makkar Motors Private Limited Agency, village Jethu Mazara (Chandigarh Road, Nawanshahr), Tehsil Nawanshahr, District SBS Nagar. He further submitted that Appellant had engaged a driver on salary to drive the vehicle and salary of the driver, maintenance of the vehicle, EMI of the vehicle, were dependent on the income of the vehicle only. He has further argued that he had given the above vehicle i.e. Mahindra Pick-up for minor repair and service at Makkar Motor Private Limited Agency (Respondent No.1) in the year 2019. The OP No.1 had demanded Rs.13,000/- as the expenses for repair and service and agreed to handover the vehicle after three days. After lapse of said period, the Appellant/Complainant requested many times to get back the vehicle but the OP No.1 started demanding more amount and OP No.1 did not handover the vehicle. On 19.08.2021, OP No.1 said that he has no vehicle and Appellant can do whatever he can. Thereafter, he made complaint to SSP at Shaheed Bhagat Singh, Nagar but even then also the vehicle was not handed over to him. At last, Appellant/Complainant filed Complaint F.A. No.67 of 2023 7 No.77/2021 on 05.10.2021 before the District Commission. In the First Complaint, Order/Judgment dated 17.05.2022, passed by the District Commission, Shaheed Bhagat Singh Nagar, whereby the complaint filed by the Respondent/Complainant was allowed and District Commission had ordered to OP No.1 to handover the vehicle on 04.02.2022. As per order passed by the District Commission, Appellant/Complainant had to pay Rs.11,000/- as repair/maintenance charges, OP finally handover the vehicle on 25.02.2022. The relevant part of this order is reproduced as under:-
" In view of our above discussion, we partly allow of the present complaint and the OP is directed to deliver repaired vehicle to complainant immediately, if not delivered yet, after receiving the payment of Rs.13,030/- as per statement dated 02.12.2021 given on behalf of OP. Further, the OP is also directed to pay to the complainant Rs.2,000/- as compensation for harassment including litigation.
15. Learned proxy Counsel for the Appellant has further argued that appellant suffered financial loss, which was required to be compensated by OPs as they kept the vehicle for 26 months with them, due to this Appellant had suffered huge financial loss as he could not earn anything and could not pay the EMI of the vehicle and taxes of the vehicle. The Appellant demanded loss of Rs.40,000/- per month for the period of 26 months the vehicle was kept by OP No.1 in its custody for which he suffered a lot.
16. None had appeared on behalf of the Respondents despite service.
17. To deal with the aforesaid issues, we have heard the arguments of learned proxy Counsel for the Appellant and have also perused the documents available on the file. We have observed that the demand of compensation @ Rs.40,000/- per month for a period of 26 F.A. No.67 of 2023 8 months including lockdown period has already been considered by the District Commission in C.C. No.77 of 2021 and OP No.1 was directed to pay a compensation of Rs.2,000/- vide order dated 04.02.2021. Said order was not challenged neither by the complainant nor by the OPs. In compliance with said order dated 04.02.2021, the OP No.1 handed over the vehicle to the Complainant on 25.02.2022.
18. As the compensation part demanded by the Appellant/Complainant, stand already well considered by the District Commission in C.C. No.77/2021. From the perusal of the submission of the parties before the District Commission, OP No.1 stated that he started repair of the vehicle and generated invoice dated 31.12.2019 of Rs.13,030/-. Intimation of the same was given to the Complainant on his phone as well as by writing letters dated 03.11.2020 & 01.09.2021 but the Complainant did not turn up and chose other methods to get the vehicle without making any payment. Moreover, during the inquiry pending before the SSP, the Complainant promised to pay the said amount but he filed the complaint before the District Commission. The Complainant has nowhere rebutted to the contentions of the OPs with regard to non-payment of repair charges before the District Commission. The District Commission while deciding the earlier complaint has rightly compensated the Complainant by awarding the amount of Rs.2,000/-, which is quite sufficient. Hence, we are of the opinion that the decision has well taken by the District Commission and there is no need to enhance the compensation at this stage.
19. The OP No.2 repossessed the vehicle on 13.05.2022 after passing of award dated 01.09.2021 against the Complainant under section 17 of Arbitration and Conciliation Act by the Arbitrator in Case No.546 of F.A. No.67 of 2023 9 2021. Thereafter, the Complainant filed the Complaint bearing No.45 of 2022 before the District Commission on 17.05.2022. Moreover, the District Commission after taking sympathetic view and had passed interim/conditional order on 02.06.2022, which is reproduced as under:-
"It was ordered that the vehicle in dispute is the necessity for earning livelihood of complainant. So in the interest of justice, application is allowed and the OP-2 is restrained from alienation of vehicle in dispute, till pendency of complaint and directed to handover the vehicle back to complainant, after receipt of payment of 50% installment due qua loan account from complainant within 15 days, as per statement given in this Commission by complainant.
However, the Complainant had not complied with the said order and stay granted by the District Commission was vacated due to failure on the part of Appellant/Complainant to deposit the requisite installment as per above said order. After repossessing the vehicle, OP No.2 had sold the vehicle in auction with due intimation to Police and by sending the pre-sale notice to Appellant/Complainant as well as to the guarantor. From the reasons recorded above, we are of the opinion that Complainant himself was at fault.
Accordingly, finding no merit in the Appeal, we dismiss the same.
20. Sequel to the above discussions and reasons stated above, we are of the opinion that there is no need to interfere with the order passed by the District Commission, as it is a well reasoned and justified order.
Accordingly, the Appeal filed by the Appellant is hereby dismissed not only on the ground of limitation as well as on merits also. The order of the District Commission is upheld.
21. Since the main case has been disposed off, so all the pending miscellaneous applications, if any, are accordingly, disposed off.F.A. No.67 of 2023 10
22. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (VISHAV KANT GARG) MEMBER August 08th, 2024.
SK