Orissa

Kendujhar

36/2007

Ashok Kumar Mallik - Complainant(s)

Versus

1. Tata Motors Ltd. - Opp.Party(s)

Sri S.S. Panda & G.N. Jena

18 Dec 2007

ORDER

IN THE COURT OF THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: KEONJHAR

CONSUMER DISPUTES CASE NO. 36/2007

Ashok Kumar Mallik, aged about 45 years,

S/o: Late Krushna Chandra Mallik,

At- Nuasahi Jail Road, P.O: Keonjhargarh,

P.S: Town, Dist: Keonjhar                                                     . . .           Complainant

                 - VERSUS -

1. Tata Motors Ltd.

    26 Floor Centre-1, World Trade Centre,

    Cuffee Parade, Mumbai- 400005

2. Pal Movers Pvt. Ltd.

    Khan Nagar, N.H-5, Balasore

3. Senior Manager, Tata Motors Ltd.

    Barmunda, Bhubaneswar

4. Tarini Auto Engineering Works,

    Authorized Service Station of Tata Motors,

    At- Shankarpur, N.H-6, Keonjhar

5. The Branch Manager, Tata Motors Finance Ltd.

    Plot No. 2, Bapuji Nagar, Bhubaneswar, (Odisha)

6. The Branch Manager, Tata Motors Ltd.

    Gayatri Mini Market Complex,

    At/P.O: Keonjhargarh, Dist: Keonjhar                           . . .            Opp. Parties

______________________________________________________________________________________________________

Date of Hearing: 16.11.2007                                                        Date of Order: 18.12.2007

______________________________________________________________________________________________________  

Sri S.C. Das, President: The complainant has prayed for a direction against the Opp. Parties who are the officials of the Tata Motors Co. Ltd. and its finance department to replace the defective vehicle and to pay compensation of Rs.3,81,000/- towards compensation and other expenses with interest and in alternative to refund the total EMIs paid till filing of this complaint with down payment and cost of the registration and Insurance and also compensation for mental agony and cost of the proceeding.

       The brief facts of the case are that the complainant wants to earn livelihood for himself and his family purchased a New 407/TT/LP City-Ride Bus of Tata Motors on hire purchase basis being financed of Rs.7,18,653/- by the Opp. Parties and a further sum of Rs.1,13,606/- as down payment by the complainant received the vehicle on 5.11.05 at Keonjhar and the vehicle was registered and insured at the local registering authority and the registration no. of the vehicle is OR-09G-0805. That, after some days of operation the body of the vehicle was damaged and on the direction of other Opp. Parties the vehicle was taken to Opp. Party No.4 on 15.6.2006 and it was found that there was cracks of the Chassis of the vehicle. The Opp. Party No.4 advised the complainant to take the vehicle to Reena Auto Body Works at Karanjia for repair with the assurance to provide a new chassis within 3 months and requested the complainant to ply the vehicle in the meantime. Though after repair the bill of amount of 34,100/- submitted by the Reena Auto Body Works the complainant received only Rs.8,200/- from the Opp. Parties and the rest amount has not yet been received by the complainant.

       The complainant was paying the installments regularly and has totally paid of Rs.2,49,480/- till date though even after the repair the vehicle  was not in a perfect condition, but there after some days of running the vehicle develop technical problems such as Engine started abnormally excess heating and blowing black smokes regularly and these defects was brought to the notice of Opp. Party No.4 but the Opp. Party No.4 failed to rectify the same even after several attempts for which the complainant unable to run the vehicle and sustained physical, mental and financial loss. Hence this complaint:

      After service of notice the Opp. Party No.1 and Opp. Party No.3 filed written version and other Opp. Parties are set ex-parte and also absent all along.

       In the written version the Opp. Party No.1 & 3 denied all the allegations and specifically the jurisdiction of this Hon’ble Forum as there is an arbitration agreement and besides challenging that the complainant is not a consumer under the act as the vehicle was purchased for a commercial purpose and complainant does not deserve any compensation from the Opp. Parties.

            The points for consideration are -

1. Whether this Complaint is maintainable?
2. Whether there is deficiency of service by the Opp. Parties and if so what relief can be granted to the complainant?

      Heard the learned counsel for the contesting parties. Perused the material available on records.

     From the records it reveals that complainant claims to have purchased the vehicle to earn livelihood for himself and for his family though the Opp. Parties has challenged the same but failed to provide any negative evidence in this regard, so we have no reason to disbelieve the complainant in this score. Secondly for the objection that the parties could have availed of the remedy of arbitration is also without any force. In this context it is suffice to say that Section 3 of the C.P Act- 1986 stipulates that the provision 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. In fact, section 3 gives an additional remedy to the complainant besides those available under the existing law. So even if the remedy of arbitration found provided in the agreement between the parties it would not have barred the forum from redressing the complaint’s dispute. On the observation made above we are of the opinion that the complaint is maintainable.

     To consider the next aspect regarding the deficiency of service if any we have gone through the records and found that after few days of purchase of new vehicle there was cracks in the chassis of the vehicle and was repaired and the Opp. Party paid a sum of Rs.8,200/- out of the bill amount Rs.34,100/- towards the repair charge vide his letter dt.10.11.06 through Cheque No. 016628 as it was within warranty period and there is no evidence that the balance amount of Rs.26,000/- has been paid to the complainant and from the Job Card issued by the Opp. Parties to the complainant the subsequent defects of the vehicle are mentioned and it is noticed that the vehicle was taken for repair so many times for removal of Engine defects even after repair of crack of Chassis and there is no evidence that the defects of the Engine and Chassis are removed and neither the Opp. Parties explained anything in this regard except making a bald statement in the written statement. So we have no hesitation but to accept the submission made by the learned counsel for the complainant and hold that the vehicle has inherent technical defects for which a few days after purchase taken for repair for so many times during a short period. So it might not have been possible for the complainant to run a defective vehicle and that to in between one and half years have elapsed which obviously would have caused mental agony and financial loss and the complainant deserves to be compensated by the Opp. Parties for their deficiency in service. But there is no material available on records to assess it properly.             

     After filing of the complaint petition a petition was filed by the complainant that the Opp. Party No.5 & 6 making demands of payments of installments and threatened to forcibly take away the vehicle from the complainant. As the demand is unjust, the Opp. Parties were restrained not to take any coercive action.

        Under these facts and circumstances as the Engine and Chassis of the vehicle has inherent, and technical defect and that was not removed during warranty period the complainant is entitled to get replacement of a new Engine in a perfect running condition and a new Chassis and to get the balance repair charges of Rs.26,000/-.

        Hence it is ordered that the Opp. Party No.1 to Opp. Party No.3 are directed to replace the Chassis and Engine of the vehicle of the complainant with a new one of the same model in perfect running condition at their own cost and to pay a sum of Rs.26,000/- of balance repair charges and a consolidated amount of Rs.60,000/- towards compensation and costs of the litigation with 30 days of receipt of the order.

        In alternative the Opp. Party No.1 to Opp. Party No.3 to pay a sum of Rs.2,49,480/- paid by the complainant towards EMI till date and Rs.2600/- for balance repair charges and Rs.80,653/- towards down payment received by Opp. Party No.2 as per receipt No.1903, dt.20.10.05 granted by Opp. Party No.2 and in total Rs.3,56,133/- (Rupees Three Lakhs fifty six thousand one hundred thirty three0 only with 8% interest from the date of filing this complaint i.e. 23.04.2007 and the compensation of Rs.60,000/- within 30 days of receipt of this order.

       It is further directed to Opp. Party No.5 and Opp. Party No.6 not to make any further demand until the direction given to the other Opp. Parties properly complied.

       Accordingly the case is disposed of.

       Order pronounced in the open court today i.e. 18^th day of December, 2007 under my hand and seal of this forum.

   

            I agree                                                                                                        I agree                                  

     Sri S.C. Sahoo                                                                                        Smt. R. Mohanty                                                        Sri Suresh Ch. Das                                           Member                                                                                                     Member                                                                         President                                              

DCDRF, Keonjhar                                                                                         DCDRF, Keonjhar                                                          DCDRF, Keonjhar

                                                                                                                                                            Dictated & Corrected by me

                                                                                                                                                                           (Sri S.C. Das)

                                                                                                                                                                              President

                                                                                                                                                                        DCDRF, Keonjhar