ORDER

Sri A.K.Patra,President

1.   This Complaint is filed by the complainant named above inter alia alleging deficiency in service and unfair trade practice on the part of the Ops for delay in repairing &  non removal of the defect there in the purchased vehicle.
2. The complainant seeks for an order directing the OP 1 & 2 to release the vehicle in a good condition and to exempt the additional monthly loan amount which is to be paid to the OP 3 when the vehicle was defunct. The complainant further prays for an award of compensation of Rs.4, 80,000/- towards loss of income & for mental agony with litigation cost.
3.   The brief facts  as emerged from the complaint petition and documents filed herewith giving rise to the present  complainant are that, the complainant has purchased TATA ACE MEGA  vehicle on  28/04/2017  from the OP2 being financed by the OP3  and insured got it insured with the OP 3.The cost of the vehicle was Rs.4,00,000/- .The Complainant has paid  down payment of Rs.1,40,000/- to the OP 3.  Since the date of purchase the complainant has been paying the loan amount in every month to the OP 3 up to 05.04.2021 and in total the complainant has paid Rs.5,62,578/- to the OP 2. During Covid lock down period said vehicle was in an immovable condition for which the engine of the vehicle was found defective. The complainant narrated the problem of the vehicle to the OP 2.  The OP 2 insisted the complainant to bring the vehicle to his showroom and, as per the direction of OP 2, the complainant took the vehicle to the OP 2 for repair of engine but till date though two years have been elapsed the OP 2 measurably failed to discharge his obligation. Subject vehicle is neither repaired nor released to the complainant till date .  As on date subject vehicle is within the possession of OP 1 & 2 is well within the knowledge of the OP3.    Now the OP 3 is demanding Rs.8,00,000/- for the purpose of clearance of loan from the complainant is illegal  & unfair .  The complainant is in no way liable to repay the loan as demanded by the Op 3.The complainant is a poor person and he is not using the vehicle for the last several years and he is unable to earn a single penny. It   is practically not possible on his part to clear the outstanding dues due to non functioning of the subject financed  vehicle. When the vehicle was in good condition the complainant was regularly paying the monthly dues .It it is unjust & unfair on the part of OP 3 to demand the loan dues from the complainant. Hence, this complaint.
4. To substantiate his claim the complainant has relied and filed  the self attested true copy of the following documents:-

1. GST Invoice dt. 22 Nov. 2017 issued from M/S Kalinga Auto Syndicate/op2(Annexure 1)
2. Certificate -cum -insurance policy scheduled there in the name of the complainant vide policy no. 10003/31/20/025467 for the period of 28/04/2019 to 27/04/2020 issued from SRIMRAM GIC Ltd. (Annexure 2 )
3. Letter dt.09/05/2017 of  Sriram Transport Finance Company Limited (Annexure 3 )
4. Detailed of repayment schedule of loan advance to the complainant vide loan agreement No. BHAWANO704280012 DT. 02/05/2017 (Annexure 4 series)
5. Money Receipts dt.07/09/2017 for Rs .12000/-,  Money Receipts dt.10/082017 for Rs .12000/-,  Money Receipts dt.24/06/2017 for Rs .12700/-,  Money Receipts dt.29/01/2018 for Rs .12000/- , Money Receipts dt.07/09/2017 for Rs .12000/-  Money Receipts dt.29/01/2018 for Rs .12000/- , Money Receipts dt.08/01/2018  for Rs .12300/-  ,Money Receipts dt.17/10/2017  for Rs .12000/-,   Money Receipts dt.22/11/2017  for Rs .12000/-,  Money Receipts dt.26/07/2018  for Rs .14051/-,  Money Receipts dt.07/05/2018  for Rs .12300/- , Money Receipts dt.09/02/2019  for Rs .1450/-,  Money Receipts dt.24/04/2019  for Rs .50,000/-,  Money Receipts dt.30/10/2019  for Rs .10000/-,  Money Receipts dt.29/11/2019 8  for Rs .12050/- , Money Receipts dt.14/02/2020 08/01/2018  for Rs .12000/-  (Annexure 5 series)
6. Copy of vehicle delivery Acknowledgement Note dt.28/04/2017 (Annexure 6 
7. Copy of Aa
8.  
9. Adhar Card of the complainant (Annexure 7).
10.  The averment of the complaint petition is supported by an affidavit of the complainant

5. Being notice, the OP 1 appeared through their learned counsel Sri.M.R.Mohanty and filed their written version. It is stated that, the complainant is not a customer of the OP1. The complainant has not availed any loan from the OP 1 and also there is no contract executed between the complainant the OP 1. So there is no business transaction executed between the complainant and OP 1. Without any allegation the complainant made the OP 1 a party to defend the case with ulterior motive to grab huge amount from the OP 1 as compensation. As the complainant has not availed any loan from the OP 1, the OP 1 has no scope to know regarding the loan of the complainant. There is no deficiency of service or unfair trade practice from the side of the OP 1.As such the OP 1 is not liable to pay any compensation rather ,this complaint is liable to be dismissed with cost.
6. The Op 2 appeared through their learned counsel Sri. Ganeswar Patnaik and filed their written version stating there in that, the complainant has purchased Tata Ace Mega vehicle on 28.04.2017 being financed by OP 3. The complainant has paid the finance amount to the OP 3 up to 14.02.2020. The complainant’s vehicle found defective in the month of March 2020 for which he produced the vehicle on 05.03.2020 in the showroom of the OP 2 with the complaints of engine jam and starting problem and subsequently the vehicle got checked by the mechanic and accordingly a Job Card dt.05.03.2020  was issued  mentioning the defects claimed by the complainant with  the vehicle which was duly acknowledged by the complainant . Thereafter, the vehicle got checked by the mechanic of the showroom and as the warranty period of the vehicle was expired on that time so the estimated cost of repairing approximately Rs.30, 000/- was intimated to the complainant and he was asked to deposit an advance of Rs.20, 000/- in the showroom immediately so that repair work will be started soon but he did not comply the same till date. It is further submitted that, the complainant has already issued with Job card in the month of March 2020 and also the finance deposit also discloses of payment up to February 2020 but the complainant has come with a false cause of action of the year 2021 and made a vague plea of approaching before this Commission which is not in fairness rather, an  unjust statement. The production of vehicle in the year 2021 is not at all true for that, the vehicle actually was produced during the year March 2020 and finance payment made up to Feb 2020.So the plea taken by the complainant  that, payment of finance up to 2021 and also production of the vehicle in the year 2021 are misstatement of facts which may not be acceptable rather ,it need to be discarded . Further it is submitted that, since March 2020 i.e. on production of the subject vehicle, the complainant though time &  again requested over phone  to the OP 2 to bear the advance towards repairing charges of the vehicle but he has paid his deaf ears and did not turn up. The warranty period was also over by the date of production of the vehicle for its repair in the year 2020. It is only due to negligence on the part of the complainant the vehicle could not be repaired and after lapse of 3 years and 9 months the repair cost will be more about Rs.1,00,000/- at increased rate due to more damage of the vehicle for not functioning and remained idle. Due to negligence on the part of the complainant any claim of loan amount by the OP 3 is up to the complainant but not the OP 2 to be entangled. The complaint is not within the period as prescribed under C.P.Act  and this complaint may not be admissible and liable to be dismissed.
7. To substantiate their claim the OP 2 relied & filed the self attested true copy of the following documents: (i) Sale Certificate of the subject vehicle dt. 28/04/2017,(ii) Retail Invoice of subject vehicle bdt.28/04/2017,(iii) job Card/  Work Order No. A.S of subject vehicle dt.05/03/2020.
8. The Op 3 appeared through their learned counsel Sri. Rabindra Kumar Naik but no written version is filed. However, the Op 3 is allowed to take part in the hearing of this case without written version.
9. The complainant and the Op 2 led their evidence on affidavit but no evidence on affidavit is filed by the OP1 & 3 as prescribed under C.P.Act.
10. Heard. Perused the material on record. We have our thoughtful consideration to the submission of rival parties.
11. After perusal of the complaint petition, written version and all the  documents relied on by both the parties placed in the record, the points for consideration before this Commission is whether the Ops are deficient service & indulged in unfair trade practice causing injuries to the complainant ? Whether this complainant is maintainable?  And, whether the complainant is entitled for the relief(s) as claimed?
12. Here in this case, it is proved on admission that, the complainant has purchased Tata Ace Mega vehicle on 28.04.2017 from the Op 2 being financed by OP 3. The complainant’s vehicle suffered defect such as engine jam & starting problem. Subject vehicle produced in the showroom of the OP 2 for repairing but the vehicle is neither repaired nor delivered to the complainant till date.
13. Nothing materials placed on record to hold that, the complainant is a customer of OP 1 rather, it is proved on admission of the Op2 that the complainant has purchased the subject vehicle from Op2 being financed by OP 3 as such we are of the opinion that OP1 is not a necessary party rather complaint is to be dismissed against the OP1.
14. The Op 2 submits  that,  the complainant has come with a false cause of action of the year 2021 and filed on dt. 07/08/2023. The Op 2 gives more emphasis on the job Card/ Work Order dt. 05.03.2020 and urged to dismiss the complaint as time barred. It is found that, the Op2 has admitted the facts that, the complainant’s vehicle suffered defect in the month of March 2020 for which the complainant produced the vehicle on 05.03.2020 in the showroom of the OP 2 with the complaints of engine jam and starting problem. The undisputed job Card/ Work Order dt. 05.03.2020 with respect to subject vehicle placed by the Op2 on the record & on admission of the Op2 it is clearly proved that, subject vehicle produced in the showroom of the OP 2 for repairing but nothing  material  placed on record to conclude that, the vehicle got  repaired or have released it without repaired to the complainant as on date  as such we are of the opinion that, cause of action is  continuing for  filling of this complaint .Hence, the submission of the Op 2 that, complaint is barred by limitation is not acceptable.
15. The Op 2 submits that , the vehicle got checked by the mechanic and, accordingly a Job Card dt.05.03.2020 was issued mentioning the defects claimed by the complainant in the vehicle which was duly acknowledged by him and, further submits that, as  the warranty period of the vehicle was expired on that time so the estimated cost of repairing approximately Rs.30, 000/- was intimated to the complainant and he was asked to deposit an advance of Rs.20, 000/- in the showroom immediately so that repair work will be started soon but the complainant did not comply the same till date. We have found nothing material placed on the record to hold that, the Op 2 has ever estimated the cost of the repairing of the subject vehicle or have served it to the complainant. So also nothing placed on record to hold that, as on the date of production i.e dt.05.03.2020 warranty period of the vehicle was expired. Hence, it is concluded that, above submission of the OP2 is not acceptable.
16. It is proved on admission that, subject vehicle is there under the possession of the Op 2 and that, it has neither repaired nor delivered to the complainant till date clearly proved the negligence & deficient service there on the part of the Op2 for which the complainant has lost his earning from the subject vehicle unable to repay the loan to the Op 3 & suffered mental agony cannot be denied.
17. The Op 3 neither filed written version nor contested the case. The submission of the complainant that, he has purchased the subject vehicle being financed by the OP 3 for commercial purpose & to earn his livelihood is not disputed. The OP 3 has also not disputed that, the finance amount is to be repaid by the complainant out of the earning of the subject vehicle. Admittedly, the vehicle suffered some defect such as engine jam and starting problem. It is produced before the OP 2 for repairing and till date the vehicle is neither repaired nor released  to the complainant certainly caused loss of earning of the vehicle resulting default in repayment of loan to the OP3 and in such circumstances the complainant claim no liability to repay the finance amount/loan to the OP3. The complainant has proved the contentions of his complainant petition on affidavit as prescribed U/S  Sec.38(6) of C.P.Act,2019 The claim of the complainant that, he is in no way liable to repay the loan as demanded by the Op 3 remain unchallenged & un-rebutted .
18. Based on the above discussion, we are of the opinion that, the OP No. 2 (two) has neglected to repair the subject vehicle of the complainant so also subject vehicle is not yet released to the complainant thereby proved deficient service & unfair trade practice resulting financial loss and mental agony to the complainant accordingly   there is sufficient cause continuing e to present this complaint and it is filed on time well within the jurisdiction of this Commission. The claim of the complainant that, he is in no way liable to repay the loan as demanded by the Op 3 remain unchallenged & un-rebutted Hence, this complaint is allowed in part with the following directions:-

ORDER

             The Opposite Party No.2 is directed to release the subject vehicle to the complainant within four weeks of receiving of this order failing which the OP 2 shall liable to pay compensation of Rs.500/- per day to the complainant till release of the vehicle. The complainant is in no way liable to repay the loan as demanded by the Op 3 accordingly the Op 3 shall not claim any loan dues if any with respect to the subject financed  vehicle from the complainant. There shall be no order as to cost and comp ensation.

             The consumer complaint is party allowed against the Op 2 on contest  and exparte against  3  and dismissed against Op 1 in the above terms. Pending application if any is also stands disposed of accordingly.

              Dictated and corrected by me.

                         Sd/-

                       President

                                       I   agree.

                                                                          Sd/-

                                                                       Member   

         Pronounced  in the open Commission today on this 9^th October 2024 under the seal and signature of this Commission. Judgment could not be pronounced on time in want of quorum. 

The judgment be uploaded forthwith in the website of the Commission and free copy of this order be supplied to the respective parties or they may download the same from the Confonet  to treat the same as copy of the order received from this Commission .Ordered accordingly.