RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No. 1112 of 2013

Pankaj Singh, aged about 39 years,

S/o Shri Ram Sewak Singh, R/o Unwal House,

Betia Hata, Gorakhpur through Shri Ram

Sewak Singh, Registered Power of Attorney

Holder, R/o 2, Unwal House, Betia Hata,

Gorakhpur.                                                     ….Appellant.

Versus

1- M/s Sardar Motors Autowheels Pvt. Ltd.,

    Nansad, Lucknow Road,

    District: Gorakhpur.

2- M/s Mahindra & Mahindra Ltd.,

    Marketing/Corporate Legal Department,

    Warli, Mumbai-400018 through its

    Chief Manager.

3- Mahindra & Mahindra Financial Services Ltd.,

    G.I. Estate, Near RTO, Gorakhpur Road,

    District: Deoria.                                     …Respondents.

Present:-                                                   

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Mahesh Chand, Member.

Smt. Suchita Singh for the appellant.

Shri K.N. Shukla for the respondent no.1

Shri Alok Sinha for the respondent no.2

Shri Gopalji Srivastava for the respondent no.3

Date  9.2.2017

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

Aggrieved by the judgment and order dated 20.4.2013, passed by the Ld. DCDRF, Gorakhpur in complaint case No.68 of 2011, the appellant Shri Pankaj Singh has preferred the instant appeal. 

Facts leading to this appeal in short are that the appellant/complainant purchased a Mahindra Mexico

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Light Goods vehicle from the OP no.1 on 23.3.2010 on payment of Rs.2,90,227.00 by taking loan from the OP no.3. After 3 months of purchase the engine of the vehicle became defective that it was taken to respondent no.1 M/s Sardar Motors Autowheels Pvt. Ltd. where he was told that the engine of the vehicle will have to be changed but the vehicle was not repaired and on 24.9.2010, the vehicle was delivered showing the engine has been changed and that there was no short coming now in the vehicle. But when the vehicle was driven then it was found that the problems were remaining as they were. The vehicle was again taken to the Workshop but no action was taken and the appellant/complainant had to incur financial loss hence, after giving a notice, complaint case no.68 of 2011 was filed before the District Forum, wherein the OP no.1 filed the WS mentioning therein the vehicle of the complainant was a commercial one, therefore, the case was not maintainable the District Consumer Forum. Besides, whenever the short comings in the vehicle occurred they were properly addressed and repaired. It was also submitted that because of the vehicle being kept in the Workshop a sum of Rs.26,000.00 has already been paid and though twice engine of the vehicle have also been changed and on the third time there were minor defects which have since been repaired but the complainant is not taking the vehicle. Hence, there is no deficiency on the part of the OP and the complaint deserves to be dismissed.  After hearing the parties, the Forum passed the following order on 20.4.2013:-

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"परिवादी का परिवाद विरूद्ध विपक्षीगण अपास्‍त किया जाता है। परिवादी को निर्देशित किया जाता है कि विपक्षी सं01 के प्रति‍ष्‍ठान से अपने वाहन सं0 यू0पी0 53 बी0टी0 0948 को निर्णय व आदेश के दिनांक से एक माह की अवधि के अंतर्गत प्राप्‍त करे। चूंकि विपक्षी सं01 10 हजार रू0 की क्षतिपूर्ति की धनराशि परिवादी को देने को सहमत है इसलिए यह धनराशि भी परिवादी विपक्षी सं01 से प्राप्‍त कर सकता है। परिवादी कोई अन्‍य अनुतोष प्राप्‍त करने का अधिकारी नहीं है।"

Feeling aggrieved with this order, the appellant has preferred the instant appeal.

The main grounds of the appeal are that the Forum below has without any basis concluded that the vehicle in question was a commercial one though no evidence in this regard was there. Besides, the complainant Shri Ram Sewak Singh was a retired person and to earn his livelihood by self-employment, he has purchased the vehicle. It was wrong conclusion drawn by the Forum below that the vehicle was repaired and it was standing in the Workshop without considering the evidence of the complainant that the vehicle was not repaired. There was no reason for the complainant not to take the vehicle, if it was repaired as he was incurring financial loss, as the order passed by the Forum below is illegal, erroneous and is liable to be set aside.

The respondent no.2 filed the objections against the appellant mentioning therein that the vehicle was properly repaired but the complainant with mala-fide intention did not taken the vehicle. There is no expert report to show that the vehicle had some manufacturing defect. The order passed by the ld. Forum is justified and therefore, this appeal deserves to be dismissed.  

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Heard the counsel for the parties and perused the entire records.

In this case, it is not disputed that the vehicle was purchased by the appellant/complainant from the respondent no.1 and that it became defective many a times for which the engine of the vehicle was changed twice by the respondents and that they had also paid some amount by way of compensation as the vehicle had to be kept in the Workshop for quite sometime. The disputed point according to the appellant/complainant is that the vehicle which became defective many a times was lastly given to the respondents for repairs but the same has not been repaired whereby he had to incur losses whereas according to the respondents the vehicle was repaired but the appellant/complainant did not come forward to take the vehicle and therefore, there is no deficiency in service on the part of the respondents. So the matter boils down to the point as to whether the vehicle has been properly repaired by the respondent but the complainant has not come forward to take the vehicle or it has not been repaired and thereby the respondents had committed deficiency in service.

The respondents have categorically stated that the vehicle has been repaired but the complainant is not coming forward to take the vehicle. He has also agreed to pay Rs.10,000.00 as compensation for detention of the vehicle in the Workshop from 3.1.2011 to 27.1.2011. The appellant/complainant has taken the stand that the vehicle was not repaired but it is interesting to note that he has not taken delivery of the vehicle to find out as to whether the

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vehicle was really not repaired then he could have asked the respondents to repair the vehicle. Besides, he could have filed an expert report to show that the vehicle was not properly repaired. Obviously, it appears to be a case of exasperation on the part of the appellant as despite twice changing of the engine, the vehicle again came up with defects and in such scenario an expert report showing the manufacturing defect could be filed but that has not been done in this case by the appellant. It is also interesting to note that in the complaint filed before the Forum below, the appellant/complainant has prayed for changing the engine of the vehicle with a new one with a fresh warranty with a new engine whereas in the appeal, the appellant/ complainant has prayed for a new vehicle to be delivered in place of the old one as the vehicle was a defective one. Since this was not a prayer made before the Forum below by the complainant, therefore, there is no question of replacement of the old vehicle with a new one.

In this case, it is argued by the ld. counsel for the respondents that the vehicle is commercial one and hence, this case was not maintainable in the Forum below. The arguments on the contrary of the ld. counsel for the appellant/complainant is that the appellant had purchased the vehicle for his livelihood by way of self-employment and therefore, he was a consumer as per provision of the Consumer Protection Act, 1986. We find that the complainant has not made any mention of this fact that the light goods vehicle which was a commercial vehicle was purchased by the complaint to earn his livelihood by way

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of self-employment. Therefore, this plea that the complainant was a consumer as the commercial vehicle was purchased by him to earn his livelihood for self- employment can not be sustained in the absence of any such statement by the complainant in his complaint. Therefore, the complainant does not appear to be a consumer under the provision of the Consumer Protection Act, 1986.

Besides, it is apparent that the complainant has not gone to the respondents for taking the delivery of the vehicle as he might have been apprehensive of it being defective as was twice the case before when the engine of the vehicle was changed but as from the evidence on records, it transpires that the vehicle was repaired by the respondents and that there is no evidence to show that it was not repaired. There does not appear to be any deficiency in service on the part of the respondents. Therefore there is no obvious reason to interfere in the judgment and order passed by the Forum below as the appeal is devoid of merit and therefore, is liable to be dismissed.  

ORDER

The appeal is dismissed.  Parties shall bear their own costs.

Certified copy of the judgment be provided to the parties in accordance with rules.

                 (Vijai Varma)                        (Mahesh Chand)

               Presiding Member                           Member

Jafri PA II

Court No.5