Date of filing:- 16/07/2018.
Date of Order:-13/02/2020.
DISTRICT CONSUMER DISPUTES REDRESSAL FOURM(COURT)
B A R G A R H
Consumer Complaint No. 49 of 2018
Krishna Kant Sahu, S/o Dolamani Sahu, aged about 28(twenty eight) years, resident of Gyan Das Lane, W. No.13(thirteen), Po/Ps/Dist. Bargarh. ..... ..... ..... .... Complainant.
-: V e r s u s :-
M/s Gajaraj Automobiles Private Ltd., through its Manager, Barahagoda near Reliance Petrol Pump, N.H.6(six), Po. Barahagoda Ps/Dist. Bargarh.
M/s Gajaraj Automobiles Pvt. Limited, Vill-Thelkoli in front of Bhusan Power Steel Ltd., Po. Lapanga, Dist. Sambalpur-768212(Odisha).
Tulsyan Automobiles, through its Manager, S.H.-10(ten), Sandasingha, Mahjhipali, Ps. Sasan, Dist. Sambalpur-768200.
TATA Motors Ltd., Managing Director, A.O.-364, 2nd Floor, Sahid Nagar, Bhubaneswar-751007. ..... ..... ..... Opposite Parties.
Counsel for the Parties:-
For the Complainant :- :- Sri C. R. Panda, Advocate with associate Advocates.
For the Opposite Party No.1(one)
to No.3(three) :- Ex-parte.
For the Opposite Party No.4(four) :-Sri P.K.Mahapatra,Advocate with associate Advocate.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.13/02/2020. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief Facts of the case :-
The Complainant has filed the case against the Opposite Parties being pursuant with the provision U/s.12 of the Consumer Protection Act-1986 with an allegation of unfair trade practice and deficiencies of service on the part of the Opposite Parties under the following ground.
The case of the Complainant is that he has purchased a 12(twelve) wheeler goods carrier heavy vehicle from the Gajraj Automobiles, (Opposite Party No.1(one)) Bargarh Branch by incurring a loan from one Cholamandalam and used to run the same for earning his livelihood by way of self employment being registered the same with the competent registration authority.
During the course of such use within seven days the same started giving trouble with it’s Domi Excel for which it was tilted from one side to other side, to which he reported before the Opposite Party No.1(one) and taken to his premises then on the advice of the Opposite Party No.1(one) again it was taken to the work shop of the Opposite Party No.2(two) for better mechanical facilities wherein it was detected that there was some alignment problem and it was repaired but on the very next day it started with the same problem so again the same was reported before the Opposite Party No.1(one) and then the Complainant urged before him to detect the real problem with same and to repair but the problem of the same was detected to be with the Domi Excel after 7(seven) to 8(eight) months from the date of the purchase of the same and got it repaired by changing the same part after 3(three) months of such detection for which of such acts of the Opposite Parties the Complainant sustained heavy loss of money worth of Rs.3,500/-(Rupees three thousand five hundred)only per day as the same could not be used properly due to such inordinate delay of it’s detection and repair of the same and further sustained loss of money by paying the installment of loan to the financer namely Cholamandalam Finance Ltd. @ Rs.62,850/-(Rupees sixty two thousand eight hundred fifty)only per month.
And in furtherance to his case due to such problem with the vehicle 12(twelve) numbers of tyres of the same also got damaged but on complain two new pairs of tyres was exchanged instead of the 12(twelve) numbers tyres for which he sustained loss of Rs.1,14,000/-(Rupees one lakh fourteen thousand)only in purchasing the same and in view of such regular defects with the vehicles the Complainant could not use the same for his earning purpose and resulting to which he sustained a loss of Rs.8,00,000/-(Rupees eight lakhs)only which of such action of the Opposite Parties as per him amounts to deficiencies of service coupled with unfair trade practice.
And again his case is that he has asked for the report of the same defects with the vehicle from the Gajaraj Automobiles from his laboratory test but he has not provided the same to him which speaks of his callousness in providing service to the Complainant, thus has filed the case before the Honorable Forum to redress his grievance relying on the following documents with a prayer to compensate him with an amounts of Rs.9,50,000/-( Rupees nine lakhs fifty thousands)only.
Xerox copy of R.C. Book in OD-17-H-9953.
Xerox copy of National Permit Goods.
Xerox copy of Fitness Certificate.
Original invoice.
Xerox copy of R.T.I. Application with challan.
Posted receipts.
Xerox copy of National Insurance Policy.
Original Bill of Tyre.
Perused the complaint petition and the documents filed by the Complainant and as it seems to be a genuine case, it was admitted and Notice was served on the Opposite Parties but none of them except Opposite Party No.3(three) & No.4(four) appeared before the Forum but afterwards the Opposite Party No.3(three) also did not file his version and also remained absent before the forum on repeated call, as such the Opposite Party No.1(one), No.2(two) & No.3(three) are set ex-parte on Dt.12 .09.2018 & Dt.15.04.2019 respectively.
The Opposite Party No.4(four) filed his version, which are all denial to the case of the Complainant, stating therein in his version that the complaint is not coming under the purview of the Consumer Protection Act 1986, beside that also has averted that as the alleged defect with the vehicle has not been tested with any notified testing laboratory as such cannot be taken in to consideration also has challenged the Complainant for being a Consumer as per the Act on the ground that the same being in use for Commercial purpose and as it has run for more than 99,900(ninety nine thousand nine hundred) kilometers within a period of 10(ten) months and furthermore has challenged that the quantum of the compensation is not possible as has been claimed by the Complainant as cannot be ascertained being hypothetical calculation. Beside the same also has alleged many more defects with Complainant in maintaining the same vehicle, besides that also has alleged in his version that the vehicle in question was financed by one finance company namely Cholamandalam Pvt. Ltd. and as the Complainant could not repay the loan amount in time, has snatched away the same from his possession and moreover he being the first owner of the said vehicle and also a necessary party in this case should have been added as a necessary part but has not been made a party, furthermore the vehicle in question has run for more than 99,900(ninety nine thousand nine hundred) kilometers so it is obvious that it requires time to time maintainance and the same has been provided with by the Opposite Parties whenever it has been brought to them within the warranty period without any charges as such has not committed any deficiencies in rendering service to the Complainant and against which he has given his notes of satisfaction, further more also has made averment that the issue in question is principal to principal basis as such for the latches if any has been committed by some of other Opposite Party the manufacturer of the same cannot be held responsible or be liable there under, in view of such facts and circumstances has prayed before the Forum to dismiss the case as the same has been filed under frivolous ground and with some malafied intention.
And in support of his contention in the averments the Opposite Party No.4(four) has relied on several decision of the higher Authorities of Law, and at the time of hearing of the case the respective counsels of the respective parties vehemently placed their respective arguments and also have filed their written notes of arguments, beside that the Complainant produced his evidence in shape of an affidavit to which the learned Advocate for the Opposite Party No.4(four) conducted cross examination with the permission of the Forum, which was reduced into writing in the open Forum and kept in the record for reference.
On perusal of the complaint petition, the version of the Opposite Party No.4(four) and having gone through all the materials available in the record very minutely, it has come to our notice that the Complainant has purchased the said vehicle bearing Registered No.OD-17-H-9953 from the Opposite Party No.4(four) by paying the cost of the same being financed by one financer namely Cholamandalam Pvt. Ltd. for earning his lively hood, and since there is no ambiguity in the case with regard to the status of the Complainant so far the question of him being a consumer or not as such certainly he is a consumer of the Opposite Party No.4(four) in our view, hence the case is covered under the protection of the Consumer Protection Act 1986.
In furtherance to our observation from the materials available in the record, it reveals that the Complainant has filed his petition before the Forum having his grievance against the Opposite Parties from one to four alleging that just after seven days of his purchase of the same it started giving trouble but he has never cited any date of such submission of his vehicle before the Opposite Parties also has not mentioned the details as to after how much kilometers running of the same it started giving such trouble and beside that also has not categorically mentioned as to what action of those Opposite Parties made him tempted to deduct that they are deficient in giving him service rather it has been observed that the Opposite Parties No.1(one) & No.2(two) have tried to solve the problem of the Complainant with his said vehicle immediately after receiving the same at their level furthermore on the contrary to his allegation the Opposite Party No.4(four) has categorically explained in his version as well as in his submission before the Forum about the details data of vehicle as to when it was brought to the Opposite Party and how much of Kilometer it has run by the time of coming to the Opposite Party in different occasion and the details of their service given to the Complainant in repairing of his said vehicle and also has fortified his such submission with the satisfaction notes of the Complainant, so merely speaking that such notes of satisfaction has been fraudulently obtained by the Opposite Party is not acceptable without any cogent evidence to that effect on the other hand also it has been observed from the evidence of the Complainant that he has failed to give any satisfactory explanation as to how much Kilometers it has run at the time when it started giving such alleged trouble, also it reveals from the record in details from the version and other materials available in the record that all sorts of measures have been taken by the Opposite Parties in service to the Complainant by exchanging the parts which are found to be defective in all occasion whenever it was brought to their notice and most pertinently without any cost or charges during the subsistence of the warranty period, further more the Complainant has failed to substantiate his allegation of manufacturing defect with any test report from any authorized laboratory in connection which the Opposite Party No.4(four) has relied on some decision of the higher Forum i.e. National Consumer Dispute Redressal Forum, in their Revision Petition No.525 of 2018 and some others wherein it has been held that without being tested and certified by any test laboratory the allegation of manufacturing defect cannot be deducted, contrary to which the Complainant has failed to produce any cogent evidence that such defects with the alleged parts with the vehicle ought to be taken as manufacturing defects in addition to that also it seems to be ambiguous in the absence of the distance of the running of the same resulting to such defects, in view of such facts and circumstances we don’t have any option but to belief the claim of the Opposite Party No.4(four) that the excessive running of the vehicle as has narrated in his version that when the defects has occurred they have given proper service by replacing the required machinery or repair time to time free of cost as it was within the warranty period.
Furthermore to our observation there is no specific allegation of deficiencies of service raised against the Opposite Parties in his pleading nor in his evidence adduced by the Complainant before the Forum as has been alleged in his pleading that after 3(three) to 4(four) months of the detection of the defect the same was replaced but has not mentioned the exact time of the detection of the same and the timing of such replacement in addition to the distance covered by that tune. Furthermore the Honorable National Forum in the aforesaid cited decision has magnified the proposition of law with this regard to the fact that after running a considerable distance i.e 99,900 (ninety nine thousand nine hundred) Kilometers as in this case, with the same set of machinery in any vehicle the defects if occurred therewith cannot be treated to be a manufacturing defects, which is very much applicable to the present case.
Be it pertinent to mention further that the said vehicle has been purchased by the Opposite Party by one finance company namely Cholamandalam Pvt. Ltd. and it has been admitted by the Complainant in his evidence before the Forum during his cross examination that the said vehicle has been snatched away by the said financer due to his non-payments of installment of loan and the same is not in his possession by the time of filing the case, which has been found to be a suppression materials facts before the Forum and also has failed to prove with any documents that he has repaid the loan as has stated in his pleading and that he has suffered in paying the installment of Rs.62,850/-(Rupees sixty two thousand eight hundred fifty)only per month nor by adding the said financer as a party to the case to substantiate his plea in furtherance to the fact that he is a necessary party as the first owner of the vehicle in question during the subsistence of loan period, all such deficiencies with the materials available before us made us to belief that the Complainant has not come with a clean hand before the Forum for which there is no option in the hand of the Honorable Forum but to express our view against the Complainant.
Furthermore with regard to the quantum of the loss as has been claimed by the Complainant as it has been observed are all hypothetical as there is no sign of any quantitative calculation of the Kilometers it is supposed to run and the income thereto expected, more particularly because of the allegation of the persisting defects with the vehicle at the relevant time, it seems to be most improbable to conceive the allegation of the Complainant that the same vehicle was carrying with considerable defects in it at the same time was not being able to cover the expected Kilometers hence it seems to be ambiguous and as such our view is expressed against the Complainant, even if the Opposite Party No.1(one) to No.3(three) are having been set ex-parte being absent in the Forum, the case is taken up for hearing on merit and as no allegation of the Complainant could be proved against them too, beyond reasonable doubt hence our conscious and consensus view is expressed against the Complainant. Hence our Order follows.
O R D E R.
In view of our elaborated discussion of the case in our foregoing paragraphs and our expressed opinion thereto, the Complainant has miserably failed to prove any allegation of deficiencies of service against any of the Opposite Parties and also has failed to prove any merit in the case hence the same is dismissed against the Opposite Parties being devoid of merit.
The same being pronounced in the open forum is disposed off to-day i.e. on Dt. 13.02.2020.
Typed to my dictation
and corrected by me.
( Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree,
( Ajanta Subhadarsinee)
M e m b e r (W).
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Sri Dusmanta Padhan
Office Assistant, Bargarh
