Haryana

StateCommission

A/880/2018

YASH PAL - Complainant(s)

Versus

M/S SAFDARJANG HYUNDAI AND OTHERS - Opp.Party(s)

SURESH AHLAWAT

09 Jun 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                                 

                                                         First Appeal No.880 of 2018

                                                 Date of Institution: 16.07.2018

                                                               Date of Decision: 09.06.2022

 

Yash Pal S/o Sh.Surender Pal R/o Village Nanu Kalan Tehsil-Pataudi Distt Gurgaon Presently R/o H.No.330, Sector-4-A, Dharuhera, Distt.Rewari

…..Appellant

Versus

1. M/s Safdarjang Hyundai 255, Udyog Vihar, Phase-IV, Gurgaon 122016 trough its authorized representative.
2. M/s Superon Hyundai, Plot No.106, Sector-37, Pace City-1, Gurgaon 122015 through its authorized representative.
3. M/s Hyundai Motors India Ltd. Plot No.H-1, Sicot Industrial Park, Irrundagattuaokottai,Taluka,Kancheepuram,Tamil Nadu, through its authorized representative.

…..Respondents

CORAM:    S.P.Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

                   

Present:-    Mr.Suresh Ahlawat, Advocate for the appellant.

                   Mr.Rajesh Kumar, Advocate for the respondent  Nos.1 and 2.

                   Mr.Vineet Mittal, Advocate for the respondent No.3

 

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

          Delay of 52 days in filing the appeal is condoned for the reasons stated in the application for condonation of delay.    

2.      The present appeal No.880 of 2018 has been filed against the order dated 10.04.2018 passed by the District Consumer Disputes Redressal Forum, Gurgaon (In short “District Commission”) in complaint case No.287 of 2016, which was dismissed.

3.       The brief facts of the case are that on 16.07.2012, complainant purchased a Verna car vide registration No.HR 36S 3333 from opposite party No.1, which was warranted against manufacture defect for a period of two years from the date of purchase extendable for another one year after payment of extra amount.  On 05.11.2012, he was driving the car at moderate speed when all of a sudden, all the four wheels of car got jammed.  He immediately contacted the OP No.3 through OP No.1 via email, which they did not respond. He repeatedly asked the OP to replace his car as the same was having manufacturing defect. On 02.07.2014 against to his surprise when he was driving the car, its air bag opened automatically without any accident or the car against anything striking. Again he contacted the OP No.1via mail, wherein the OP NO.1 replied that they have advised their regional office to look into the matter. In the meantime, the complainant approached the OP No.1 and others and requested them to repair the car and make it functional but they charged him an amount of Rs.1,37,050/- towards repair of the car saying that defect was not covered under the warranty. Despite repeated requests, the OPs did not replace the car. Thereafter he got a legal notice served upon OPs, but,  without any response. Finally complainant filed consumer complaint bearingNo.270 of 2014 before District Consumer Disputes Redressal Forum, Rewari on 04.09.2016, which was   dismissed with liberty to file fresh one before in competent forum due to lack of territorial jurisdiction. Thus there being deficiency in service and unfair trade practice on the part of the OPs, present complaint was filed.

4.      O.P.Nos.1  and 2 filed written statement of defence admitting that complainant purchased the car in question from answering opposite party no.1 having warranty of two years subject to terms and conditions.  It was denied that on 05.11.2012 complainant was driving the car at moderate speed when all of a sudden all the four wheels of complainant’s car got jammed.  It was also denied that complainant immediately contacted OP No.3 through OP No.1 via email.  It was also denied that complainant repeatedly asked answering OP to replace his vehicle as the same was having a manufacturing defect.  The car in question was not having manufacturing defect, therefore, the question of replacement of car  did not arise. OP denied that on 02.07.2014 when he was driving the car then its air bag opened automatically without any accident or striking etc. All the allegations made by the complainant were denied by the answering OPs.

          Objections about concealment of true fact, accruing cause of action,  territorial jurisdiction, non-joinder and mis-joinder of necessary parties etc. were also raised.  It was further submitted that the vehicle was registered in the name of complainant’s proprietorship firm M/s Wishwash Automobiles with concerned transport authority and requested to dismiss the complaint.  Complainant’s car had already run and covered distance of 44730 mileage/kms till 04.07.2014.  As far as warranty is concerned same was not absolute but was subject to certain terms and condition such as non tempering, repair and service of car from authorized workshop only, mishandling, ill maintenance and negligence on the part of owner/driver.  Moreover, certain parts were also not covered under the warranty of the product such as electrical fitting and equipments. Upon inspection of vehicle, it was found that air bag wiring was got repaired by the complainant from some unauthorized workshop.  Complainant had got repaired and tempered wiring of his car from unauthorized workshop/mechanic, therefore complainant’s aforesaid car could not be repaired under warranty as he had violated its terms and conditions. He agreed to get his car repaired on making payment and accordingly he made advance payment of Rs.20,000/- to answering OP for carrying out aforesaid repair and service. The vehicle was repaired on top priority and thereafter answering OP informed him to take delivery of the same, but once again started taking plea of warranty, which was earlier disallowed by Hyundai Motors India Limited- OP No.3. He took delivery of his aforesaid car on 19.07.2014 after making payment.  The objections about misuse of process of law is also raised and requested to dismiss the complaint.

5.      O.P.No.3 filed separate written statement of defence.  It was submitted that the vehicle was purchased in the name of M/s Wishwas Automobiles and not for private use. It was further submitted that complainant has concealed the fact that car in question reported seven times for accidental repair. It was further submitted that  vehicle was repaired for the first time on 17.09.2012 at mileage of 3567 kms and secondly on 17.08.2013  with reading of 24,494 kms then on 11.04.2014 when it had covered a distance of 39,120 kms and on 23.04.2014  when it was being driven for 40,060 kms and thereafter on 09.06.2014 showing being driven 42,937 kms, on 20.07.2014 at mileage of 44,795 kms,on08.09.2014 at the mileage of  47,625 kms for accidental repairs. The vehicle was last repaired on 20.11.2014 at the mileage of 51,080 kms.  Other objections about territorial jurisdiction, complaint being time barred etc. were also raised and requested to dismiss the complaint.

          On merits, it was averred that answering OP deals with all its dealers on principal to principal basis. The warranty will not apply to damaged vehicle. The complainant was not entitled for the warranty benefit as the wiring of Airbag deployment was tampered. The airbag got deployed due to tampering with its wiring harness and hence complainant could not claim warranty benefit.  The alleged repairs were not  covered under warranty. There was no manufacturing defenct in the vehicle in question. Other objections about concealment of true facts, territorial jurisdiction etc. were also raised and requested to dismiss the complaint.

6.      After hearing both the parties, the learned District Commission, Gurgaon has dismissed the complaint vide order dated 10.04.2018.

7.      Feeling aggrieved therefrom, complainant-appellant has preferred this appeal.

8.      This argument have been advanced by Sh.Suresh Ahlawat, the learned counsel for the appellant as well as Sh.Rajesh Kumar, the learned counsel for the respondent No.1 and Mr.Vineet Mittal, Advocate for the respondent No.2. With their kind assistance the entire records as well as the original record of the District Commission including whatever the evidence has been led on behalf of  both the parties had also been properly perused and examined.

9.       Before adverting upon the contentions of the parties, it is relevant to note that it is admitted that the vehicle in question was registered in the name of M/s Wishwas Automobiles and not for private use. The complainant filed copy of sale certificate, in which, it is mentioned that the said vehicle is registered in the name of "Wishwash Automobiles (prop.Yashpal Singh). It appears that the complainant is having a commercial business and the vehicle in question was purchased for its commercial use.

10.              Since the vehicle in question was purchased for commercial purpose, the complainant cannot be considered as consumer. It is nowhere alleged by the complainant that this vehicle was purchased for earning his livelihood. Perusal of the facts shows that vehicle was involved in commercial activity of the aforesaid proprietorship concern. Such like dispute arose before the Hon’ble National Commission in “Farose Solutions Pvt. Ltd. Vs. Tata Motors Ltd. & others” reported in IV (2014) CPJ 525 (NC) wherein it was opined as under:-

“”The car in hand was not purchased exclusively for the purposes of earning livelihood by means of self-employment for the legal Director of the Company.  It is not for the livelihood of the director or personal use of the director.  He has to use the car only for commercial purposes.”

11.              As per opinion of Hon’ble National Commission expressed in aforesaid case law it is clear that if any vehicle is purchased for the purpose of company then the complainant cannot be considered as consumer. After the opinion of Hon’ble National Commission nothing is left to be discussed in on this point. It shows that the car was being used for commercial purposes and not for earning livelihood. In such a situation the complainant does not fall within the definition of consumer.  Learned District Commission has rightly dismissed the complaint.  Resultantly, the contentions raised on behalf of the present appellant stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.  Hence,  the appeal  stands dismissed on merits.

9th  June, 2022        Suresh Chander Kaushik                        S. P. Sood                                                    Member                                                         Judicial Member                            

 

S.K

(Pvt. Secy.)