Complainant Palwinder Singh has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to replace/change the Engine of the Truck or to replace the entire vehicle. Opposite parties be further directed to pay Rs.10,00,000/- for mental agony, deficiency in service, mental and economical loss suffered by him alongwith Rs.20,000/- as litigation expenses.

2.       The case of the complainant in brief is that he is a un-employed youth and for the purpose of self employment and for the livelihood himself and his family, he purchased a Truck LP 1512 TC/52 EURO III bearing registration No.PB-06-V-0938 from the opposite parties on 7.12.2016 for Rs.24,10,893/- vide sale Invoice No.Cargo J-1617-01305. He paid down payment of Rs.1,25,000/- to the opposite party no.1 and rest entire payment was made by the HDFC Bank Branch Gurdaspur to the opposite party no.2 as the said vehicle was got financed by him through said Bank. The loan was to be paid in 59 monthly installments to the Bank. The monthly installment of loan was fixed Rs.51,700/- per month. The opposite parties got the truck insured from Oriental Insurance Co. Ltd. vide insurance cover no.CHD-d131549 policy no.233102/31/2017/2868 dated 6.12.2016. The amount of insurance policy of Rs.47,763/- was paid by him. He has next pleaded that after getting the truck, he spent Rs.2,90,000/- for fixing the body structure of the truck on chassis. The truck Body Builder took 1 month for fixing the body on the chassis of the truck and after completion of Registration and other documents, he got the National Permit from the concerned Transport Department on 2 January, 2017 for plying the said vehicle on road. As soon as after getting the permit and completion of other documents of said truck, he started plying the truck on road, it has come to his notice that the truck was having manufacturing defect and found that the engine of truck was consuming excessive engine oil. He brought the truck in the workshop of opposite party no.1 at Pathankot and brings the defect into the notice of opposite party no.1 as well as Manager of workshop for excessive engine oil by the truck. The brake pipe, clutch pipe and speedo meter of the truck was also defective and has become out of order. His truck has run 38000 kms only. The truck was stuck off many times in the way while plying the same on road and he have to refill the engine oil frequently to reach the destination. He requested so many times to the opposite parties to change the engine of the above said truck and to bring the truck in order, but the opposite parties have not given any heed toward his request. The truck in question is still stand for last few months. The opposite parties have committed fraud with him by selling defective truck, thereby indulged in a unfair trade practice on their part.  He is suffering financial loss, mental harassment, agony due to the act of the opposite parties. Thus there is deficiency in service on the part of the opposite parties. A legal notice dated 01.08.2017 was served upon the opposite parties but the opposite parties did not reply the notice. Hence,this complaint.

3.         Notice of the complaint was issued to the opposite parties who appeared through their counsel and filed their joint written reply by taking the preliminary objections that the present complaint filed by the complainant is not maintainable at all before this Hon'ble Commission and is liable to be dismissed; the complainant is stopped by his own act and conduct to file the present complaint. The opposite parties are neither deficient in service nor is guilty of any unfair trade practice; the complaint is bad for the non-joinder of the necessary parties. It is further pleaded that this Hon'ble Commission has no jurisdiction to entertain and try the present complaint and the vehicle is hypothecated with HDFC Bank, who are not made a party in the present complaint and the complaint involves many questions of facts as well as law, which necessarily require lengthy full scale trial and can be appropriately done only by a Civil Court especially when contractual obligations are involved. Hence the proper forum to agitate the alleged grievances is before the Civil Court. On merits, it was admitted that the vehicle was sold to the complainant on 6.12.2016 as per the sale invoice for Rs.24,04,200/-. The vehicle was purchased on 6.12.2016 and as per record the vehicle has covered 48,494 Kms by 17.07.2017. Thus the vehicle had covered 5499 kms per month which shows as to how the vehicle was being run. Whenever the vehicle was brought to the workshop of opposite parties, it was looked into properly.  It was next submitted that the complainant be put to its strict proof. The trouble if any as alleged was due to mal handling of the vehicle and not adhering to the instructions as laid down in the service book. Eve a hefty discount of Rs.2,22,283/- was given to the complainant.  There is no privity of contract between the complainant and opposite parties about the loan. The complainant had secured from the bank. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed.

4.       Ld. counsel for the complainant has tendered into evidence affidavit of complainant Ex.C-1 and of Sh.Kali son of Sh.Meeda Masih Ex.C-16 alongwith other documents Ex.C-2 to Ex.C-15, 17 and closed the evidence.

5.       Ld. counsel for the opposite parties tendered into evidence affidavit of Sh.Raghubir Singh Patyal,  Assistant General Manager Service, Cargo Motors Pvt.Ltd. Ex.OP-1 & 2/1 alongwith other documents Ex.OP-1 & 2/2 to Ex.OP-1 & 2/5 and closed the evidence.

6.       Written arguments have not been filed on behalf of both the parties.

7.       We have carefully gone through the pleadings of counsels for the parties; oral arguments advanced by their respective counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purposes of adjudication of the present complaint.

8.       Learned counsel for the complainant has argued that complainant had purchased one truck from the opposite party vide sale invoice Ex.C9 on 07.12.2016. The complainant had made down payment of Rs.1,25,000/- to opposite party no. 1 and remaining amount was financed by HDFC Bank, Gurdaspur. He further argued that the loan was repayable in 59 monthly installments of Rs. 51,700/-. It is further argued that when the complainant started plying truck on road after completion of the formalities, complainant came to know that truck was having manufacturing defects and the engine of the truck was consuming excessive engine oil. It is further argued that the truck was brought to the workshop of opposite party no. 1 at Pathankot and it was brought to the notice of opposite party no. 1 that truck is consuming excessive engine oil and the brake pipe, clutch pipe and speedo meter of the truck was also defective and the truck of the complainant had covered  3800 Kms only and during this period, the truck got struck at many places and  complainant was compelled to get engine oil refilled frequently. It is further argued that complainant approached and requested opposite party to change the engine of the said truck, but the opposite parties refused to pay any heed to the request of the complainant. The truck in question is standing still for the last few months and complainant has been deprived off his only source of earning and sale of truck with defective engine amounts to deficiency in service.

          On the other hand, counsel for the opposite parties has argued that the complainant has not impleaded the manufacturer of the truck as a party to the complainant and as such, the complaint is liable to be dismissed. It is further argued that there is no expert report on record to prove the alleged manufacturing defect in the engine of the truck and the report Ex.C17 which is being claimed to have been issued by one Kali and proved through affidavit Ex.C16 cannot be taken into consideration as the said Kali is not authorized qualified person to check the vehicle and submit the report. It is further argued that the said report has not been obtained with the permission of this Commission and in the ends has prayed for dismissal of the complaint.

9.       We have heard the counsel for the parties and gone through the record, it is admitted fact that the complainant had purchased truck from opposite parties vide sale invoice Ex.C9 and the said sale invoice is of 07.12.2016 and the perusal of the service record of the said truck produced on record by opposite parties as Ex.OP10/3 shows that truck was brought to the workshop of the opposite parties and other authorized service centers repeatedly for one defect or the other. For the first time, the truck visited the workshop for service on 12.12.2016 with 1898 KMs running. Thereafter, truck reported for repair on 17.01.2017 with 3295 KMs running with the complaint of starting problem. Thereafter, the said truck came to the service station of opposite party on 02.03.2017 with 8005 KMs running with complaint of electrical sensors defect. Thereafter, the truck came for repair on 14.02.2017 with complaint of Clutch Booster/Master Cyl/Slave Cyl defective. Thereafter, the truck came to the workshop of opposite party on 15.02.2017 with complaint of Clutch Booster/Master Cyl/Slave Cyl defective along wih defect in Electrical Instruments and Gauges. Thereafter, the said truck came to the workshop of opposite party on 25.03.2017 with complaint of front wheel bearing Noisy, Rare Hub Oil Seal Defective/Leak. Thereafter, truck came to the workshop on 05.03.2017 with complaint of High Consumption of Engine Oil and Rare Wheel Noisy. Thereafter, the vehicle came on 05.06.2017 with complaint of Engine Tension and Idler Noisy. Thereafter, the vehicle came on 31.05.2017 with complaint of Engine Oil Consumption High. Thereafter, on 17.07.2017 the vehicle came with complaint of Engine Oil. Lastly as per record, the complainant came to the opposite authorized service station on 25.10.2017 for scheduled service. From the perusal of said service history Ex.OP10/3, we find that there have been one of the other defect in the truck within one year of the purchase and although, the said defects were rectified by the opposite parties from time to time but the reoccurrence of the said defects shows that the opposite parties have failed to give satisfactory service to the complainant. As far as the plea of the complainant for the replacement of engine of the truck is concerned, the same is not acceptable as the complainant has not placed on record any report of expert issued by any authorized qualified person/engined to prove this facts that engine of the truck is having manufacturing defects. The report of mechanic Kali Ex.C17 seems to have been procured by the complainant as the said report does not show as to what are the details of defects which were noticed during the checking, as such, for want of authenticity of said report, the replacement of engine of the truck cannot be allowed at this stage, however, this Commission is of the view that complainant has fully proved deficiency in service on the part of the opposite parties for having failed to rectify defects in the engine of the truck which occurred from time to time, as such, the present complaint is partly allowed with following directions:-

(i)      Complainant is directed to bring truck to the opposite parties within 45 days.

(ii)     Opposite parties shall get the engine of the said truck examined from the authorized Mechanical Engineer of the Tata Motors.

(iii)    On the basis of report of service engineer, the opposite party shall remove of the defects in the truck without charging any amount from the complainant. Compliance of this order is directed to be made within 45 days.

10.      The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

11.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room. 

                               (Lalit Mohan Dogra)

                                                                       President   

Announced:                                            (B.S.Matharu)

July 26, 2023                                                Member

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