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2013 DIGILAW 221 (UTT)

OBERAI MOTORS LIMITED v. SH. DHARAM SINGH RANA

2013-04-30

B.C.Kandpal, C.C.Pant, Kusumlata Sharma

body2013
ORDER (Per: Justice B.C. Kandpal, President These two appeals arise out of the order dated 28.07.2008 passed by the District Forum, Dehradun in consumer complaint No. 143 of 2005. By the order impugned, the District Forum has allowed the consumer complaint and directed the opposite party No. 1 – M/s Oberai Motors Limited to pay sum of Rs. 11,588/- to the complainant together with interest @9% p.a. from the date of filing of the consumer complaint till payment. Vide impugned order, the District Forum has also directed the opposite party No. 2 – M/s Tata Engineering and Locomotive Company Limited to pay sum of Rs. 2,87,100/- to the complainant together with interest @9% p.a. from 03.12.2004 till payment. Since both the appeals arise out of the same judgment and order, therefore, these are being disposed of by this common order. 2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that on 11.07.2003, the complainant had purchased a Tata 207 DI from the opposite party No. 1 – M/s Oberai Motors Limited under Hire Purchase Scheme, which was financed by the local dealer of Tata Motors Limited and an agreement to this effect bearing No. 802233 was executed between the parties. The vehicle was allotted registration No. UA07-F-1595. The vehicle was purchased by the complainant for his self-employment. It is alleged that as per the warranty card, there was warranty of engine for a period of 3 years and for a period of 18 months in respect of other parts of the vehicle. In the month of June, 2004, one part of the vehicle went defective and the complainant approached the opposite party No. 1 for removal of the defects and for removal of the defects, the opposite party No. 1 charged a sum of Rs. 11,588/- from the complainant under the warranty period. Later on, the driver of the complainant told him that the vehicle is not running smoothly, on which the complainant took the vehicle to the workshop of the opposite party No. 1, where the chassis of the vehicle was found cracked and the complainant was told that 15 days’ time will be consumed in bringing the chassis. On 03.12.2004, the vehicle was left/stationed at the workshop of the opposite party No. 1. On 25.04.2005, the complainant was told that the vehicle will be delivered with new chassis. On 03.12.2004, the vehicle was left/stationed at the workshop of the opposite party No. 1. On 25.04.2005, the complainant was told that the vehicle will be delivered with new chassis. On 25.04.2005, the complainant sent a notice to the opposite party No. 1 through his counsel, which was replied through reply dated 12.05.2004, alleging therein that the vehicle had been brought to their workshop on 14.07.2004. On 17.07.2005, the opposite party No. 1 informed the complainant that the vehicle has been auctioned, on which the complainant asked for Statement of Account, which was not supplied. Thereafter, alleging deficiency in service on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Dehradun. 3. The opposite party No. 1 filed written statement before the District Forum and pleaded that the amount charged by it for the work carried out in the vehicle, was not covered under the warranty; that the complainant did not pay the installments in time, on account of which the vehicle was repossessed by the financier company and the company has sold the vehicle through auction and that there has not been any deficiency in service on their part. 4. The opposite party No. 2 also filed written statement before the District Forum and pleaded that the vehicle was purchased by the complainant for commercial purposes and he had also engaged a driver; that the case involves various complex issues of facts and law and there are numerous documents which have to be proved and, as such, the same can not be decided in the summary proceedings of the Consumer Fora and, therefore, the consumer complaint is liable to be dismissed. 5. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 28.07.2008 in the above terms. Aggrieved by the said order, the opposite party No. 1 has filed First Appeal No. 208 of 2008 and the opposite party No. 2 has filed First Appeal No. 209 of 2008. 6. We have heard the learned counsel for the parties and have also perused the record. 7. We shall first deal with the appeal filed by the dealer – opposite party No. 1 (M/s Oberai Motors Limited). 6. We have heard the learned counsel for the parties and have also perused the record. 7. We shall first deal with the appeal filed by the dealer – opposite party No. 1 (M/s Oberai Motors Limited). The said appeal has been preferred by the dealer against the finding recorded by the District Forum on issue No. 2, whereby the District Forum has held that the dealer has wrongly charged the amount from the complainant for the work carried out in the subject vehicle. 8. From the perusal of invoice cum cash receipt dated 16.07.2004 issued by the opposite party No. 1 (Paper No. 54 on the record of First Appeal No. 208 of 2008), it is evident that the amount of Rs. 11,588/- was charged towards “RA HSG+Tube WO/SH. ABS WO/ARB”. The warranty card is also on record (Paper No. 66). A perusal of the terms and conditions of the warranty does not disclose that the above-mentioned work carried out in the vehicle was not covered under the warranty of the vehicle and for such work, the amount was rightly charged by the dealer. The District Forum has also rightly taken cognizance of the fact that in the affidavit of Sh. Rakesh Oberai filed on behalf of the opposite party No. 1, although he has stated that the amount of Rs. 11,588/- was charged for the parts which were not included in the warranty, but he has not mentioned under which condition of the warranty, the said work does not fall. Therefore, the District Forum has rightly held that the complainant is entitled to the refund of Rs. 11,588/- and we do not find any infirmity in the said view taken by the District Forum. As such, the appeal filed by the dealer bearing First Appeal No. 208 of 2008 being devoid of merit, is liable to be dismissed. 9. So far appeal filed by the opposite party No. 2 – Tata Motors Limited is concerned, their plea that the vehicle was purchased by the complainant for commercial purposes, is not substantiated by the evidence and material on record. Merely because the complainant had engaged his brother as driver on the vehicle, it can not be said that the vehicle was being used for commercial purposes. Merely because the complainant had engaged his brother as driver on the vehicle, it can not be said that the vehicle was being used for commercial purposes. The complainant has specifically stated in para 2 of the consumer complaint that he had purchased the vehicle for his self-employment and earning his livelihood and the opposite party No. 2 has not been able to prove that the vehicle was being used by the complainant for any purpose other than for which the same was purchased, i.e., for his self-employment. Learned counsel for the complainant cited a decision of the Hon’ble National Commission in the case of Associated Road Carriers Ltd. Vs. Kamlender Kashyap and others; I (2008) CPJ 404 (NC), wherein it has been held that the machine was purchased by the complainant for earning his livelihood by way of self-employment and hence the complainant is a consumer under Section 2(1)(d) of the Act. Learned counsel for the complainant also cited another decision of the Hon’ble National Commission in the case of Kurji Holy Family Hospital Vs. Boehringer Mannheim India Ltd. and others; III (2007) CPJ 371 (NC). In the said case, the machine was found to be non-functional during warranty period. The opposite party contended that the complaint is not maintainable as machine was purchased for commercial purpose. It was held by the Hon’ble National Commission that it is a settled law that complaint before Consumer Fora is maintainable even if goods purchased for commercial purpose turn defective during warranty period. 10. Learned counsel for Tata Motors Limited also submitted that since the vehicle was purchased by the complainant under Hire Purchase Agreement and hence it is the financier who is the owner of the vehicle and the person who takes the loan retain the vehicle only as a bailee / trustee, therefore, taking possession of the vehicle on the ground of non-payment of installment by the complainant can not be said to be an illegal action on the part of the financier. He further submitted that repossessing vehicle under the terms and conditions of Hire Purchase Agreement can not be considered as any negligence. In support of his submissions, learned counsel pressed into service the following decisions: (i) Commercial Motors and another Vs. Dev Ram Pant and another; III (2012) CPJ 117. (ii) Parameswari Vs. V.S.T. Service Station and others; II (2010) CPJ 45 (NC). In support of his submissions, learned counsel pressed into service the following decisions: (i) Commercial Motors and another Vs. Dev Ram Pant and another; III (2012) CPJ 117. (ii) Parameswari Vs. V.S.T. Service Station and others; II (2010) CPJ 45 (NC). (iii) Surendra Kumar Sahoo Vs. Indusind Bank Ltd.; IV (2012) CPJ 322 (NC). (iv) Ram Deshlahara Vs. Magma Leasing Ltd.; III (2006) CPJ 247 (NC). (v) Orix Auto Finance (India) Ltd. Vs. Jagmander Singh and another; II (2007) CPJ 45 (SC). (vi) Suryapal Singh Vs. Siddha Vinayak Motors and another; II (2012) CPJ 8 (SC). (vii) Anup Sarmah Vs. Bhola Nath Sharma and others; IV (2012) CPJ 3 (SC). (viii) Ram Pal Singh Vs. Shri Transport Finance Co. Ltd.; I (2013) CPJ 456 (NC). 11. We have carefully gone through the law laid down in the above cited cases, but the above case laws do not apply to the facts and circumstances of the present case. In the instant case, there is no stand of the financier – opposite party No. 2 that the loan installments were not paid by the complainant. The complainant has filed the receipt issued by the opposite party No. 1 – dealer, which shows that till 16.07.2004, sum of Rs. 2,98,688/- was paid by the complainant. There is no denial of the financier that the said amount was not paid by the complainant or was not received by it. It is true that some installments were not paid in time, but if the financier was so strict about the terms and conditions of the agreement, the said installments should not have been accepted and should have been refused. The financier has not been able to prove by any cogent and reliable evidence that any amount was outstanding against the complainant, which he did not pay and hence the vehicle was repossessed and was sold in auction. 12. The repossessed vehicle inventory list dated 03.12.2004 is on record (Paper No. 36 on the record of First Appeal No. 209 of 2008), which shows that the vehicle was repossessed on 03.12.2004. The said document shows that the vehicle was firstly repossessed on 03.04.2004 and in the remarks of the said date, it has been mentioned that the chassis frame from both the sides was found cracked, the complainant wants the vehicle to be serviced and the complainant further wants the chassis to be replaced under warranty. The said document shows that the vehicle was firstly repossessed on 03.04.2004 and in the remarks of the said date, it has been mentioned that the chassis frame from both the sides was found cracked, the complainant wants the vehicle to be serviced and the complainant further wants the chassis to be replaced under warranty. Thus, it is clear that after 03.04.2004, the vehicle was again handed over to the complainant and the same remained in possession of the complainant till 03.12.2004. The financier has also not disclosed for how much amount the vehicle has been sold and what amount was outstanding against the complainant on account of non-payment of installments by him. The District Forum has considered the receipts filed by the complainant and has come to the conclusion that sum of Rs. 2,87,100/- has been paid by the complainant to the financier. We do not find anything to differ from the said view. 13. In the case of Commercial Motors and another (supra), the complainant had himself admitted that on account of financial constraints, he could not pay the installments in time and there was delay in payment of the installments. In the instant case, there is no such situation. The financier has not been able to prove that the complainant committed default in payment of the installments. In the case of Parameswari (supra), it was held that there was no legal impediment on the part of the financier to repossess the vehicle in terms of Hire Purchase Agreement on failure of the appellant/complainant to pay the due installments. In the present case, as stated above, the financier has not been able to prove that any installment was due against the complainant. The same is the position with the law laid down in the case of Surendra Kumar Sahoo (supra), Orix Auto Finance (India) Ltd. (supra), Suryapal Singh (supra) and Ram Pal Singh (supra). In the case of Ram Deshlahara (supra), it has been held that under hire purchase transaction, the financier does not render service within meaning of Consumer Protection Act. In the said case, there was default on the part of the complainant in payment of installments. In the present case, the financier has not been able to prove that it has rightly repossessed the vehicle on account of default in payment of the installments by the complainant. In the said case, there was default on the part of the complainant in payment of installments. In the present case, the financier has not been able to prove that it has rightly repossessed the vehicle on account of default in payment of the installments by the complainant. In the case of Anup Sarmah (supra), it has been held that in hire purchase agreement, purchaser remains merely trustee / bailee of behalf of financier / financial institution and ownership remains with later. It is true, but the financier has to prove non-payment of due installments on the part of the complainant, which the financier has failed to do in the instant case. 14. Thus, in view of the above discussion, the appeal filed by the financier also deserves dismissal and is also liable to be dismissed. 15. For the reasons aforesaid, both the appeals are hereby dismissed. No order as to costs. 16. Let the copy of the order be kept on the record of First Appeal No. 209 of 2008.