(Delivered on 25/04/2018)

Per Smt. Jayshree Yengal, Hon’ble Member.

1.      The legal representatives (LRs.) of the original  deceased complainant  being not  satisfied  and  the original opposite party  (for short O.P.) Nos.1,3&4  Ashok Leyland Limited  through its  Marketing Division, Marketing Manager, and Deputy Manager (Sales) respectively  feeling aggrieved  by the order  dated 15/04/2008 passed by the District Consumer Forum, Nagpur, partly allowing  the consumer complaint bearing No. original CC/428/1998 (CC No.554/2007(New) have filed these appeals bearing No.A/721/2008 and A/858/2008 respectively.

i.        The Forum below while partly allowing the aforesaid consumer complaint has directed the O.P. Nos. 1, 3 & 4 /appellants  in appeal bearing No.A/858/2008 to pay the complainant Rs.2,00,000/-on account of selling  defective vehicle  to the complainant  with  9% p.a. interest  from  the date of filing of the consumer complaint  i.e.  from 23/11/1998 till its realization. The  O.P. Nos. 1,3&4 are further directed by the Forum below  to pay Rs.10,000/-, Rs.50,000/- and Rs.5,000/- to the complainant  towards the  cost of spare parts of the vehicle which the complainant purchased  from  open market,  compensation  for physical and mental harassment and cost of proceedings, respectively.

ii.       The O.P. Nos. 1,3 & 4 are further directed by the Forum below  to  jointly and severally comply the aforesaid directions  within  30 days  from the date of receipt of the order.

          Appellant-Shri Shatrughan s/o Chokhelalji Gupta since deceased  through his following  legal heirs, 

i. Smt. Mankibai Wd/o. Chokhelalji Gupta,

ii. Smt. Jyoti Wd/o. Shatrughan Gupta, and

iii. Baby Vaishanavi D/o. Shatrughan Gupta in appeal bearing No. 721/2008, are referred as complainants.

          Appellant No.1-Ashok Leyland Ltd. through its Marketing Division  Chennai, appellant No. 2- Ashok Leyland Ltd. through its Marketing Manager, Nagpur and appellant No. 3- Ashok Leyland Ltd.  Through its Deputy Manager (Sales) Nagpur in appeal No. 858/2008 are referred as opposite party  (O.P.) Nos. 1, 3 & 4 respectively, for the sake of convenience.

          Respondent No. 2- Automotive Manufacturers Ltd. in both the above mentioned appeals are referred as O.P.No.2.

          Respondent No.3 in appeal No.A/858/2008 and respondent No. 6- in appeal bearing No. A/721/2008 -Ashok Leyland Finance Ltd.  is referred as O.P.No.5 for the sake of convenience.

2.      Facts in brief as set out by the complainant in consumer complaint are as under,

i.        The original complainant alleging deficiency in service had filed the consumer complaint bearing No.CC/428/1998 before the State Commission, Mumbai. Thereafter the said consumer complaint was transferred to this Circuit Bench of the State Commission, at Nagpur. By  virtue  of  the enhancement  in  the pecuniary  jurisdiction of the District Consumer Forum, Nagpur, the said  the consumer complaint   came to be transferred  to  the District Consumer Forum, Nagpur  by order dated 03/10/2007.The consumer complaint thereafter was registered as consumer case No. 554/2007.

ii.       The original complainant Shri Shatrughan Gupta died during the pendency of the complaint.  Therefore, the legal heirs of the original complainant were brought on record of the complaint.

iii.      The complainant had contended  in his complaint  that  he was an educated  unemployed  youth  and  with an intention to pursue  the  family  business of transportation, he booked Ashok Leyland make  TURBO 3516 Model Tractor  by  availing  financial   assistance  from  O.P.No. 5- Ashok Leyland Finance Ltd.  The complainant also intended to purchase a suitable trolley for  the said tractor. The  O.P.No.5 advised  and persuaded the complainant to  buy  the Beaver Tractor  as  it was  better in performance  and efficient than  the TURBO 3516 Model. Although the complainant was reluctant to purchase the alleged improved model of tractor i.e. Beaver Tractor, it is the contention of the complainant that he fell prey to the assurances of the O.P.No.5 and proceeded to purchase the Beaver Tractor on hire purchase basis through O.P.No.5.

iv.      It is further  contention of the complainant that he purchased trailor worth   more than Rs.4,00,000/- with  the said tractor.  He was also required to erect the cabin to house the said tractor.  The complainant incurred expense of Rs.50,000/- for the same. He also was required to pay Rs.64,000/- towards insurance and taxes.  It is further contended by the complainant that he was required to procure additional fund from other sources to meet the extra expense incurred by him.

v.       It is further  contention of the complainant that within a very short span of time after the tractor hardly been plied for 2500 Km. the tractor developed problem of rear axle left hub overheating, pump compressor problem due to excessive heat, fast wear & tear of tyres, sudden break down of the vehicle on the road itself. The complainant was required to bring the tractor to  workshop of the opposite parties and after inspection it was opined by the officials of the opposite parties that the assemblies of the pump and its compressor, etc., required replacement. However, the officials of the opposite parties requested the complainant to wait for at least three days as the said assemblies would be required to be procured from the Head Office at Chennai.

vi.      It is further contention of the complainant that  defect in the tractor still could not be removed in spite of replacement of the spare parts, which were purchased from open market at Nagpur as the same were not made available by the Head Office of the opposite parties. The tractor was required to be brought to the workshop for repairs very frequently.  At several times the loaded vehicle stopped in the way, the goods loaded therein were required to be unloaded and the complainant was required to hire another vehicle to reach the goods to the destined place of transportation. The complainant was not only deprived of the profits, but was saddled with heavy losses in his business, finance and reputation. It being a manufacturing defect in the vehicle, which could not rectified by any extent of repairs.

vii.     The complainant  further  contended that the opposite parties once told the complainant that the tractor was repaired completely and offered for trial of repaired vehicle by loading the same to its fullest capacity. The complainant agreed for the same.  The opposite party also provided an expert mechanic to accompany the said vehicle. The tractor, even after the repairs was not set right as the leakage of oil from the vehicle started only after 100 Kms of plying. The expert mechanic opined that the said problem was only minor.  However, he told the drivers that the vehicle is not roadworthy for long run. The tractor repeatedly developed problems with the motor and it used to stop anywhere.  The complainant was required to tow the tractor to the repairing service station frequently. The complainant incurred heavy expense for towing and repairing the vehicle repeatedly. As a result the complainant was put to additional loss as he was not able to pursue his business of transportation to earn his living.

viii.    The complainant alleged unfair trade practice against the opposite parties who knowingly persuaded the complainant to buy a tractor having manufacturing defect.  He claimed by way of consumer complaint total payment of Rs.18,40,304/- as detailed in consumer complaint which was inclusive of the payments and expenses incurred by the complainant towards purchase of the tractor, repairs, cost of spare parts, insurance of the vehicle, interest thereon etc.        The complainant has further sought for payment of Rs.8,000/- per month from the opposite parties towards damages for the forced  unemployment as he could not earn his livelihood from the tractor which he had purchased. The complainant also sought for the cost of proceedings to be paid by the opposite parties.

3.      The opposite parties resisted the complaint by filing their written version.

        The opposite party Nos.1, 3 & 4 - Ashok Leyland Ltd., through its Marketing Division, Chennai, Marketing Manager, Nagpur and Dy. Manager (Sales), Nagpur have raised the preliminary objection in the written version filed by them in respect of territorial jurisdiction of the Forum on the fact that the vehicle in question was delivered to the complainant at Pondicherry and it was registered with RTO, Durg (M.P.)  On the said fact the opposite party Nos.1, 3 & 4 have alleged that no cause of action has arisen in territorial jurisdiction of the Forum and therefore the complaint deserves to be dismissed on the preliminary objection of territorial jurisdiction. The opposite party Nos.1, 3 & 4 although have denied all the adverse allegations of the complainant, they  have specifically submitted in the written version  that the loss, if any, caused to the complainant could be perhaps has occasioned due to lack of business for which the opposite parties cannot be held responsible. The complainant has filed frivolous consumer complaint to avoid repossession of his vehicle by opposite party No.5 – Ashok Leyland Finance Ltd., due to default in repayment. 

4.      The opposite party Nos.5 & 6 Ashok Leyland Finance Ltd., have also denied all the adverse allegations of the complainant by filing the written version. The opposite party Nos.5 & 6 have specifically submitted that the complaint deserves to be dismissed as against them as there is not a single whisper of any allegation of unfair trade practice against them in respect of the transaction between them and the complainant.  The complainant has filed the consumer complaint mischievously to procure unjust enrichment and to extort money from the opposite parties and to shirk the liability of repayment of loan. The opposite party Nos. 5 & 6 have further submitted that the complainant has alleged defects in respect of the vehicle purchased by him on hire & had it been really true, then he could have returned the defective vehicle.  The complainant however chose not to do so and as an afterthought he filed the consumer complaint to avoid his liability of repayment of the loan. The consumer complaint for the aforesaid reasons deserves to be dismissed as frivolous.

5.      The opposite party No.2-Automotive Manufacturers Ltd., has specifically sought for dismissal of complaint as the complainant has nowhere alleged any deficiency of service rendered by opposite party No.2. The vehicle whenever brought to the service station of opposite party No. 2 was promptly attended.  The opposite party No.2 has further specifically submitted that whenever the complainant’s vehicle was brought for repairs, the repairs sought for work of minor nature like servicing of fuel injection pump, hub assembly, oil leakage, etc.  The complainant should substantiate his claim of manufacturing defect by an expert opinion and not by mere allegations and affidavit. The complainant has neither claimed the replacement of the vehicle nor cost of the vehicle. The complainant has just put up inflated claims towards tyres, cost of trailer and salary of his employees. The complainant has allowed the opposite party Nos.5 & 6 to sell the vehicle to a third party and he has not put any claim whatsoever in the sale of this vehicle by opposite party Nos. 5 & 6. The complaint, therefore, deserves to be dismissed for the aforesaid reasons as against opposite party No.2.

6.      The Forum below  after hearing both the sides and considering the evidence adduced by both the parties, partly allowed the complaint as aforesaid. The Forum has specifically observed that  the  complainant  has  issued letter to the O.Ps. complaining   thrice for the same defects in his vehicle within  three months and requesting  for replacement of spare parts. The  O.Ps. have  admitted  that  some parts of the vehicle were not available  and  the one which  were  available were replaced by it. The Forum below  has  considered the claim of the  complainant   to the  extent of Rs. 18,40,304/-. However,  the  Forum  has  not allowed the same  as  the complainant  has  prayed for it towards  the interest, insurance  and  loss of income, as  the  same  is not  proved by  documentary evidence. The Forum however has observed that undisputedly complainant  was required to  give his  vehicle for repairs  very frequently. Therefore,  compensation in lumsum is to be granted. The Forum has further  observed  that   the complainant  had  submitted in written notes of argument  that the deceased complainant  committed suicide. The said  fact being coupled by the  loss of income  that the complainant  suffered,  entitles him for   compensation  for mental and physical harassment.

7.      The  complainants being not satisfied  by the  compensation  granted  against  original O.P. Nos. 1,3 & 4 challenged the  impugned order   by filing  appeal No. A/721/2008 seeking  enhancement of compensation.  

8.      The O.P. Nos. 1,3&4 being aggrieved  by the  aforesaid order  preferred an appeal  No. A/858/2008  challenging  the same  firstly  on the ground that  the  allowing the  compensation  in absence of any expert opinion for manufacturing defects is unsustainable in  law.

          Secondly on the ground that the Forum below was not having jurisdiction to entertain the complaint as the vehicle was purchased from Pondicherry  and the R.T.O. Registration  is of Durg (State of Madhya Pradesh).

9.      We heard counsel for the appellants in both the appeals and perused the written notes of arguments filed by them.  We also perused  copies  of the complaint, written version and documents filed on record.

10.    The purchase of tractor from the O.Ps.  is not disputed. The letters dated 03/07/1996, 03/09/1996, 12/09/1996, 21/09/1996, 18/11/1996, 19/11/1996  addressed to the O.P. Nos. 3&4 by the complainant  are on record. All the aforesaid letters reflect the consistent  complaint of the complainant  in respect of his vehicle.  The  vehicle was booked and purchased in the month of May-1996. The  defects  in the vehicle  were   communicated to the O.Ps. within three months  of purchase of the vehicle. The O.Ps.  as and  when required tried to   repair  the  vehicle. The only inference that can be drawn is that the vehicle had defects which could not be set right  for allowing the proper use of the vehicle.

11.    The  other letters  issued by the  complainant  are also on record which  intermittently  mentions that  the vehicle  stopped on the road and was  parked at  places like Khamgaon etc. The  complainant in his consumer complaint  has prayed for  payment of Rs. 18,40,304/- with interest  under various heads  namely  booking amount , interest,  insurance,  tax,  service charges,  cost of spare parts, conveyance charges,  loss of freight charges,  loss of profits etc.  The complainant has neither  alleged  manufacturing  defect nor proved the same by  expert opinion or such others  evidence  to prove  manufacturing  defect in  the vehicle. The complainant  has further  prayed for  payment of Rs. 8000/- per month  towards  damages for the  forced  unemployment.  Presumably  it may be towards loss of  income, etc. The Forum allowing compensation  in a lumsum of Rs. 2,00,000/- on account of  sale of   defective vehicle is just and proper. The complainant has  neither  prayed for  the  replacement of vehicle nor the cost of the vehicle.

12.    The various bills  are filed on record by complainant to support the  cost of spare parts . The  order of  Forum  allowing  Rs. 10,000/- towards  the cost of spare parts  is therefore  just , proper and reasonable.

13.    It is also not disputed that  the complainant  died  during pendency of  the complaint   due to commission of suicide by him.  The  vehicle  which  was purchased for earing livelihood  by transportation would have been surely  affected  due to  the  frequent  and  repeated  complaints  in the vehicle.  It can  safely  be inferred  that  such  hardship faced by the complainant could  have been reason  for  him  to commit  suicide. The Forum therefore allowed  compensation  for  mental agony, physical harassment and financial loss.

14.    The appeal filed by the  original complainants  bearing No. A/721/2008 deserves to be dismissed as  the enhancement in compensation  sought  is not  proved  by the  cogent evidence. The  compensation  prayed for in original complaint  is exorbitant and does not fall within the perview of the  consumer dispute.

15.    The appeal filed by the original O.P. Nos. 1,3&4 bearing No. A/858/2008 deserves to be dismissed.  The vehicle sold by them   was required to be  repeatedly  repaired as  the complaint  in respect of the same was consistent. 

16.    As regards the territorial jurisdiction of the Forum, the branch office of the opposite party is situated at Nagpur and  the authorised service station  of the  appellant is also  situated at Nagpur and under the provision  of Consumer Protection Act, 1986 the territorial jurisdiction  vests with  the District  Forum  where  the opposite party resides or  the  branch office of the opposite party is  located.

17.    For the forgoing reasons aforesaid  both appeals deserve to be dismissed being  devoid of merits and we find no infirmity or illegality in the  impugned order . In the result we pass the following order.

ORDER

i.        The appeal bearing No. A /721/2008 is dismissed.

ii.       The appeal bearing No. A/858/2008 is dismissed.

iii.      The order dated 15/04/2008 passed by the District Consumer Forum, Nagpur, in consumer complaint partly allowing  the consumer complaint is confirmed.

iv.      No order as to cost in appeal.

v.       Copy of order be furnished to both the parties, free of cost.