MAHINDRA AND MAHINDRA LIMITED vs RANVIJAY SINGH

-THESE two appeals arise out of the judgment and order dated 7. 8. 2004 passed by the District Consumer Forum, Rai Bareilly in Complaint Case No. 208/2000 directing both the appellants, jointly and severally, either to pay a sum of Rs. 3,81,000 to the complainant or to supply a vehicle of the same value. Since the issues involved are similar and both the appeals arise out of a common complaint and against a common judgment and, otherwise too, both the appeals can be decided together, it is deemed appropriate to decide both the appeals together by an instant common judgment. The original judgment shall form part of the record of leading Appeal No. 1934/sc/2004 and its certified copy shall be placed on the record of Appeal No. 2250/sc/2004.

HEARD Mr. Kashi Nath Shukla, learned Counsel for the Mahindra and Mahindra Limited, Mr. A K Mishra, learned Counsel for the Mahindra and Mahindra Financial Services Limited and Mrs. Nalini Jain duly supported by Mr. Anurag Srivastava, learned Counsel for the complainant and perused the record. Mr. Shukla argued that Mahindra and Mahindra Limited has no concern whatsoever with Mahindra and Mahindra Financial Services Limited. The Mahindra and Mahindra Limited is engaged in the business of manufacturing and selling utility vehicles, light commercial vehicles as also auto parts and accessories thereof and M/s. Narayan Automobiles, respondent No. 2 is the authorized dealer of the appellant, whereas Mahindra and Mahindra Financial Services Limited is a separate and independent Company engaged in the business of providing financial assistance for purchasing vehicles on hire purchase basis.

The case of the complainant was challenged by Mahindra and Mahindra Limited on the ground that the vehicle in question has no manufacturing defect and for the first time on 25. 8. 1999 when the complainant reported the problem in the engine of the vehicle, which was observed only blow-by of gas, the same was attended by the dealer as per the company''s warranty policy by replacing the affected parts and there was no damage to the engine. The said vehicle too was collected after road trial on 10. 9. 1999 after paying Rs. 1,300 against the parts replacement by the dealer in complainant''s vehicle. Thus, the contrary judgment was said to be not sustainable.

MAHINDRA and Mahindra Financial Services Limited, Lucknow on the other hand challenged the order on the ground that since there was breach committed by the complainant by not making the payment of instalments good in time and even in the period of extended time, it was within the domain of the Mahindra and Mahindra Financial Services Limited to have re-possessed the vehicle and, thus, the contrary findings recorded by the District Consumer Forum are not sustainable. The contention, on the other hand, submitted by Mrs. Jain, learned Counsel for the complainant has been that the vehicle in question was having the manufacturing defect and the breaches in instalment were on account of non-working of the vehicle and the further sum ordered by the learned District Forum was paid which was accepted by the Mahindra and Mahindra Financial Services Limited, Lucknow and, thus, it was a clear case of non-compliance of the District Forum''s order which on merit is quite sustainable.

FOR appreciating the respective arguments raised at the bar, it is but proper to briefly refer to the facts of the case. In the instant case, the complainant purchased a Mahindra Armada Jeep bearing Engine/chassis No. DW-22410 from the dealer M/s. Narayan Automobiles, Lucknow of Mahindra and Mahindra Limited on 25. 1. 1999 with a financial assistance provided by the financier M/s. Mahindra and Mahindra Financial Services Limited under hire purchase agreement. The manufacturer company gave a one year''s warranty on manufacturing defects provided preventive maintenance is done as per the schedule laid down in the operator''s manual. Admittedly, the vehicle was plied upto 42124 kms. within the period of seven months i. e. from 25. 1. 1999 to 25. 8. 1999 which, obviously, means that on an average basis the vehicle ran properly for about 6000 kms. per month. It was for the first time that the problem in engine of the vehicle was reported by the complainant to the dealer M/s. Narayan Automobiles and on verification, it was found that there was blow-by of gas and in view of the company''s warranty policy the affected parts were replaced after taking a consideration of a sum of Rs. 1,300 against the parts replaced and thereafter the vehicle was made in order. It is also clear that there was no damage in the engine. It is in the complaint that it contains an allegation that the complainant brought the vehicle to the dealer on 25. 7. 1999 with a complaint of engine being damaged and also with a complaint of removal of paint. The complainant has alleged that the assurance was offered by the dealer that its engine will be replaced and the vehicle will be delivered within 3 or 4 days but there was no replacement of the engine and only repairing of the engine was done and even there was allegation that the removal of paint was not attended too. These facts and circumstances, in our view, make it clear that had there been any manufacturing defect in the engine it would not have been on the road covering a journey of 42124 kms. within a period of seven months. The problem in the engine, in the instant case, related to blow-by of gas which was corrected by replacement of the parts after accepting Rs. 1,300 towards the price of the parts replaced and other needful was done by the dealer in view of the terms of the warranty. For the removal of the paint, had it been suffering since inception of the purchase of the vehicle, it was expected that the complainant would have complained about the said feature in the vehicle to the dealer without any further delay within a reasonable time. Waiting for more than seven months and that too after plying the vehicle upto 42124 kms. makes us satisfied to lean in favour of this conclusion that there was no problem of paint in the vehicle since inception and it may be on account of other reasons for which the manufacturer and the dealer cannot be held liable on the ground that they had sold an old vehicle. It cannot be ruled out that during the extensive use of the vehicle the paint because of contact of other agency on the body of the vehicle, might have been scratched. The history card, on the other hand, maintained by the dealer relating to the vehicle in question makes it clear that the vehicle in question was repaired on 13. 4. 1999, 9. 4. 1999 and 25. 8. 1999 and even some parts-chain, cable, liver, piston, gasket-were changed. That shows that the vehicle was made to an extensive use. It rules out a case of manufacturing defect in the engine. Thus, the impugned order fastening the joint and several liability on the appellant Mahindra and Mahindra Limited for funding the deposited money at a sum of Rs. 3,81,000 or alternatively replacement of the another vehicle is not justified to that extent merely as against the appellant M/s. Mahindra and Mahindra Limited. As regards the appeal preferred by Ms. Mahindra and Mahindra Financial Services Limited, Lucknow is concerned the arguments in detail have been placing reliance on the dues of the instalments and the amount dues against the complainant. It was argued that since the appellant M/s. Mahindra and Mahindra Financial Services Limited is the financier of the vehicle, he has right to recover the loan amount financed to the complainant and since default in payment of the instalment has been committed, it has every right to re-possess the vehicle as per term and condition No. 11 of the agreement and as such that right has been exercised properly in view of the conditions of the hire purchase agreement duly signed by the complainant. It was also argued that in the hire purchase agreement executed between the appellant and the complainant, there is an arbitration clause in which it is mentioned that every dispute regarding the agreement in question shall be referable to the sole arbitrator and since the dispute involved in the complaint relates to the vehicle for which the loan was disbursed, the clause of the arbitration agreement is fully applicable and as such the complaint is not maintainable. As regards the argument of non-maintainability of the complaint on the ground of existence of an agreement clause of hire purchase agreement relating to the vehicle in question executed in between the financier and the complainant is concerned, that is hardly an argument for obstructing a complaint proceeding under Section 12 of the Consumer Protection Act. Section 3 of the Consumer Protection Act makes it abundantly clear that the "provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force". This provision makes it clear that taking recourse of a complaint proceeding if it contains allegation of deficiency in service or defect in goods can be raised before the Consumer Forum by way of a complaint. The taking recourse of arbitration proceeding is another avenue available to a complainant in view of the terms and conditions of the hire purchase agreement entered into between the parties. Thus, the argument of non-maintainability of complaint is not acceptable.

AS regards the argument of learned Counsel for the appellant/finance company that the right of re-possession was there as the complainant committed breach in paying the instalments as per the terms and conditions of the hire purchase agreement cannot be said to be disputed. If the breaches are there the financier can re-possess the vehicle but any re-possession which has no support of law cannot be said to be sustainable. The agreement entered into between the parties making a provision that it can be repossessed and that too without observing necessary and requisite procedure without support of law cannot be said to be justified. The right of re-possession through the coercive means or done in a haphazard way needs to be discredited and discounted on all counts. The law of the land as held in Prakash Kaur''s case is crystal clear that any coercive proceeding through the muscle men or bully figures having no regard of law cannot be allowed to continue as they are totally illegal. If there is dues, the dues are to be recovered according to the procedure established by law. The provisions of Specific Reliefs Act are there and other relevant provisions are there. The recovery of the loan can be made and in the event of non-payment the re-possession of the vehicle can be ordered only by a competent Civil Court having the jurisdiction. A decree to that effect can be procured and judicial order in this regard can be obtained to ensure implementation of the agreement and consequently to recover the dues along with the penal interest. In the instant case, no details have been furnished to us in the shape of any order of the competent Civil Court or any order of a judicial body justifying the re-possession of the vehicle.

THE matter cannot be lost sight that the purpose of getting the finance from the finance company appellant by the complainant was that he should be able to get a vehicle to earn his livelihood. The inferences which can be readily available to be inferred will be that through running the vehicle in question the complainant will be able to earn his livelihood and will also simultaneously make the payment of instalments to exonerate himself from the ultimate liability of the loan amount. In the instant case, 10 instalments along with the first initial payment has been made and the vehicle in question has been repossessed forcibly on 20. 6. 2002. Generally lapses are invariably there except a few exceptional cases of payment of instalment at its due time. A provision for charging the penal interest is also incorporated. The professional aspect makes it clear that sometimes profession is on the higher side and sometimes it is on the lower side regarding the income. So the lapses in payment of instalment cannot be ruled out. The vehicle in the instant case after re-possession forcibly by the financier appellant has been re-sold to someone else and since the date of the re-possession, the complainant is deprived of his opportunity of earning livelihood and thus any expectations, that too unilaterally from the side of the financier of instalments being paid by the consumer/complainant/borrower will be a harsh thinking. In the given set of facts that when the complainant has been deprived of earning his livelihood on account of uncalled for, illegal and arbitrary re-possession of the vehicle at any wishful thinking of payment of instalments being made by such victimized consumer, is only like a day dreaming. Still the poor consumer has shown all sorts of sincerity in complying with the order of the learned District Forum. In the instant case, in view of the order, the complainant has paid a further sum of Rs. 1,50,000 which has been received by the financier appellant. Acceptance of a further sum of Rs. 1,50,000 makes it clear that the complainant was eager to fulfil his part of the obligation and thus in this background there was a legal obligation cast on the appellant financier to have carried out the orders of the learned District Forum which has not been done. We are too of the view after taking into account, the total view of the facts and circumstances that enormous loss has been caused to the complainant/consumer though he has paid the major sum of the dues. Under these circumstances, thus, a direction by the learned District Forum to the financier appellant to refund a sum of Rs. 2,81,000 will not serve any purpose because that is ignoring the vital issue of compensation which deserves to be allowed to the complainant on account of the loss of the profession. Since it is an apparent case of deficiency in service committed by the appellant financier, it is appropriate to direct to supply a fresh vehicle without charging any further sum to the complainant within 60 days trom the receipt of this order which in the circumstances will be sufficient to justify the irreparable loss caused to the complainant and there is no need to refund the money received by the financier appellant. ORDER appeal No. 1934/sc/2004 is allowed. The appellant is exonerated of any liability either of refund or of supplying a fresh vehicle. The Appeal No. 2250/sc/2004 is dismissed. The appellant financier is directed to provide a new vehicle of the same standard and of the same make without any further charge of the instalment and it need not refund the deposited sum. Ordered accordingly.