ORDER

20.02.2024

Ms. Nipur Chandna, Member

1.         A complaint under section 12 of the CP Act, 1986 filed seeking direction against OP-1 & 2 to refund the invoice amount of Rs. 46,988/- with interest from the date of payment, to pay amount of Rs. 2,00,000/- towards the mental, physical harassment, pain and mental agony etc., litigation charges of Rs.1100/- and any other relief from this Forum fit and proper.

2.         It is stated that complainant is the owner of Maruti Swift VDI having registration no. DL8CW7766, chasis no.MA3FHEB1S00406672 and the same was purchased on 29.03.2013 from respondent no.1. It is further stated that complainant visit every time at service station of respondent no.1 for servicing from the date of purchasing and on 30.04.2016 the car got serviced and Rs.7279/- paid vide invoice no. BR16001502 to the respondent no.1 for replaced engine oil. It is further stated that respondent no.1 recommended next service after 10000 kms or after 6 months but complainant was shocked when after running 7000 kms the car engine was ceased.

2. It is stated that complainant went to service centre on 18.06.2016 but officials of respondent no.1 refused to repair during warranty period. It is further stated that complainant approached respondent no.2 through telephone on 1800-102-1800 on 22.07.2016-7817263660, 30.08.2016-5809344072, 09.09.2016-8899263628 and 20.09.2016-2907105619 but all the request for repair were fallen in the deaf ears of respondent no.2 even no email reply given. It is stated that respondents did not repair the car to remove the defect. Thereafter, complainant got repaired car in the month of August with payment of Rs. 46,988/-. It is further stated that the complainant has been harassed continuously and suffered mental and physical pain and agony. It is stated that there is  deficiency in providing service by the respondents, therefore, present complaint filed.

4.         OP-1 filed detailed written statement and taken preliminary objections that complainant has not moved this Hon’ble Forum with clean hands and guilty of subbressio-veri and present complaint is abuse of process therefore liable to be dismissed. It is stated that complainant is neither owner nor a consumer of OP, therefore, present complaint is liable to be dismissed. It is stated that there is no case of deficiency in service or unfair trade practice therefore present complaint is without any cause of action.It is stated that there exist no liability that can be attributed towards the answering OP as it is neither manufacturer nor warrantor of the vehicle therefore present complaint is not maintainable.

5.         On merit all the allegations are denied. It is stated that complainant is not the owner of vehicle no. DL8CW7766. It is further stated vehicle in question requires servicing every six months or 10000 kms as recommended in the manual. It is further stated that the vehicle in question had recorded mileage of 52730 kms when it face the problem i.e. after 3 years and 4 months of the purchase on 29.03.2013. It is stated that Maruti makes vehicles has a limited warranty of 2 years since the date of its purchase. It is stated that it was a running defect and not something that can be attributed to be occurred due to any manufacturing defect and vehicle was not covered within the warranty when the problem was developed.

6.         It is stated that OP never refused to repair the vehicle but only stated that the vehicle in question is not covered under warranty as same has expired by efflux of time. It is stated that answering OP has provided all the services diligently, efficiently and effectively. It is further stated the vehicle in question was got repaired by its owner in July, 2016. It is stated that present complaint is liable to be dismissed.

7.         Complainant filed rejoinder to the written statement of OP-1 and denied all the allegations made in the written statement and reiterated contents of the complaint. It is stated that Smt. Kanti Devi mother of the complainant is the owner of the car and an authority letter given to complainant at the time of filing of the complaint. It is stated that complainant is entitled to all the reliefs claimed in complaint.

8.         OP-2 filed written statement and taken preliminary objections that present complaint is bad for misjoinder of parties. It is stated that there is no cause of action in favor of the complainant as there is no privity between OP-2 and complainant. It is stated that complainant is not a consumer being neither owner nor the user of the vehicle in question. It is further stated that vehicle in question had a manufacturers warranty for 24 months or 40000 kms, whichever is earlier. The vehicle in question was purchased by complainant on 29.03.2013 therefore, the warranty concluded on 29.03.2015 by efflux of time, therefore, there is no obligation on OP-2.

9. It is stated that complainant was negligent and careless in maintenance of the vehicle and did not send the vehicle for timely services as enumerated in the owners manual and service booklet thereby grossly violating the warranty clause 4 (9). It is further stated that the vehicle in question was sent to workshop ofOP-1 on 30.04.2016 at 45401 kms for paid service when warranty had already concluded. The service was carried out and vehicle was delivered to complainant. It is further stated that on 23.07.2016 vehicle was again sent to workshop of OP-1 as engine did not start which demanded repair and OP-1 carried out necessary repairs on paid basis. It is stated that there is no deficiency in service or unfair trade practice on the part of OP-2 therefore, complaint is liable to be dismissed.

10.       As per record no rejoinder filed by complainant to the written statement of OP-2.

11.       Complainant filed evidence by way of affidavit of Sh. Rajender Bhati. In the affidavit contents of complaint reiterated.

12.       OP-1 filed evidence by way of affidavit of Sh. Rajiv Dhir, HR Manager. In the affidavit contents of written statement reiterated. OP-1 relied on photocopy of registration certificate of car exhibit OP-1/1 and copy of vehicle history exhibit OP-1/2.

13.       OP-2 filed evidence by way of affidavit of Sh. Siddharth Lakhani Service Manager. In the affidavit contents of written statement reiterated. OP-2 relied on copy of dealership agreement annexure R2/1, copy of warranty policy R2/2, copy of job card dated 30.04.2016 annexure R1/3 and copy of job card dated 23.07.2016 annexure R1/4.

14.       Written arguments filed by complainant and OP-1 & 2.

15.       An application filed on behalf of OP-2 for dismissal of complaint as complainant sold the vehicle in question during the pendency of the present complaint. Detailed reply filed by complainant.

16.       We have heard complainant in person and Sh. Mayank Pandey proxy counsel for Sh. Pawan Kumar counsel for OP-2. Neither authorized representative of OP-1 nor counsel appeared. We have perused the record as well.

17.       OP-2 has strongly challenged the maintainability of the present complaint on two counts, hence, needs to be decided first.Firstly, the complainant is not the owner of the vehicle in question as such he has no locus standii to file the present complaint. Secondly, during the pendency of the present complaint the complainant sold the vehicle in question without seeking the permission of this Commission, hence, ceased to be a consumer,

18.       Admittedly, at the time of the filing of the present complaint ,the owner of the vehicle in question was Mrs. Kanti Devi, the RC as well as service repairing bills placed on record by the complainant clearly establish that complainant is not the owner of the vehicle. The complainant has failed to place on record any documentary evidence issued by Mrs. Kanti Devi in favor of the complainant thereby authorizing him to file the present complaint, hence, no cause of action accrued in favor of the complainant and against OP-1 & 2 for filing the present complaint. There is no privity of contract between complainant and OP-1 & 2 as such we are of the considered view that the complainant has no locus standi to file the present complaint.

19.       Admittedly, during the pendency of the present complaint the complainant sold the vehicle in question and has concealed this fact from this Commission, complainant ceased to be consumer. The law is well settled by Hon’ble National Commission in the cases where the vehicle has been sold out during the pendency of the complaint without obtaining the permission of the Commission, (Reliance has been placed upon the judgment of Hon’ble NCDRC titled as Rajiv Gulati Vs. Authorized Signatory M/s TaTa Engineering and Locomotive Co. Ltd. & Ors III (2013) CPJ 273).

20. On merit ,we have gone through the complainant and found that vehicle in question had a manufacturers warranty for 24 months or 40000 kms, whichever is earlier. The vehicle in question was purchased by complainant on 29.03.2013 therefore, the warranty concluded on 29.03.2015 by efflux of time, therefore, there is no obligation on OP-2.The complainant failed to establish the case of deficiency in service against OP 1 and 2.

21.       In view of the discussion as well as the judgment of Hon’ble National Commission we are of the considered opinion that complainant does not fall under the category of consumer as such the present complaint is not maintainable and is liable to be dismissed, hence, dismissed.

Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry. Order be uploaded on www.confonet.nic.in.

Announced in open Commission on   20.02.2024.

Sanjay Kumar                    Nipur Chandna                               Rajesh

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