DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 40 of 2019.

 

Jahir Hossain,

S/O. Mihir Miah,

Resident of West Joynagar, Near Mahabir Club, Rajnagar,

P.O.-Agartala, P.S.-West Agartala, PIN-799001,

Dist.-West Tripura, Agartala….......................................................................Complainant.

 

-VERSUS-

 

1. Tata Motors Ltd.,

Represented by its Chairman,

4th Floor, Ahura Centre,

82 Mahakali Craves Road,

MIDC, Andheri East,

Mumbai, Pin-400093.

 

2. The Manager, 

Tata Motors Ltd.,

Progressive Automobiles Pvt. Ltd.,

Math Chowmuhani, Jail Road,

Banamalipur, P.O.-Agartala,

P.S.-East Agartala,

Agartala, West Tripura, Pin-799001. 

 

3. The Branch Manager, 

Cholamandalam Investment & Finance Co. Ltd.,

Agartala Branch Office, Agartala HO, 

Math Chowmuhani, College Road, 

P.O.-College Tilla, P.S.- West Agartala,

Dist.-West Tripura, Pin-799001. 

 

4. The Branch Manager, 

Cholamandalam MS General Insurance Company, 

Agartala Branch Office, 1st Floor Above  

Showroom, Near Raymonds, Mantri Bari Road, 

RMS Chowmuhani, Agartala H.O, 

P.O.-Agartala, P.S.-West Agartala,

Dist.-West Tripura, Pin-799001................................................................ Opposite Parties.

 

    __________PRESENT__________

 

 SRI RUHIDAS  PAL

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

      WEST TRIPURA, AGARTALA. 

 

DR (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA,  AGARTALA.

 

SRI SAMIR  GUPTA

MEMBER,

  DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA. 

 

C O U N S E L

 

 

For the Complainant : Smt. Sumi Datta,

  Smt. Sharmistha Deb,

  Advocates.

 

 

For the O.P. No.1  : Sri Amrit Lal Saha,

  Sri Kajal Nandi, 

  Sri Abheek Saha,

  Advocates. 

For the O.P. Nos.2 : Sri Subhajit Paul,

  Sri Prabal Kr. Ghosh. 

  Advocates. 

For the O.P. No.3&4 : P.K. Ghosh

  Advocates. 

 

JUDGMENT  DELIVERED  ON : 21 /02/2022.

J U D G M E N T

          Earlier this Commission passed judgment on 05/11/2020 allowing complaint whereby and where-under O.P. Nos.1 & 2 were given direction to pay Rs.1,50,000/- as professional loss, Rs.10,000/- as sufferings of mental agony and harassment as well as Rs.5,000/- as cost of litigation, in total Rs.1,65,000/- to the Complainant and also for curing the defective vehicle. The O.P. Nos.1 & 2 preferred appeal against the said judgment before the Hon'ble State Consumer Disputes Redressal Commission and that appeal was being numbered as case No.A/10/2020. 

The Hon'ble State Commission by its judgment dated 06/03/2021 set aside the said judgment and the matter is remanded back to decide afresh. 

Accordingly notice was issued upon the parties to appear and take part in the hearing. Learned Advocates of both parties appeared and we heard at length. Now we are passing the judgment afresh.  

 

2. The Complainant Jahir Hossain, set the law in motion by presenting the complaint petition U/S 12 of the Consumer Protection Act, 1986  complaining against the O.Ps. for deficiency of service. 

The Complainant's case, in brief, is that the Complainant had purchased a TATA ACE MEGA BS IV (Goods Carrying Vehicle) from the O.P. No.2 in the month of December, 2017 and the O.P. No.2 is the dealer of the O.P. No.1 and the warranty for the vehicle shall be for a period of 2 years from the date of sale of the vehicle, or 72,000 kms of its running, whichever occurring earlier and the said vehicle is being financed by the O.P. No.3. The said vehicle was registered and numbered as TR01 AF 1818. Since the purchase of the vehicle he has been regularly paying the premium for installments for the aforesaid vehicle to the O.P. No.3. The Complainant lastly renewed the insurance of the said vehicle on 14/11/2018 from the O.P. No.4 and the O.P. No.4 issued the Insurance Policy and the policy period of this insurance covers from 18/12/2018 to 17/12/2019. On 24/03/2019 when the Complainant was driving the said vehicle, suddenly he found that there was a defect in the vehicle. The Complainant immediately informed the service Engineer of TATA Motors and gave details of the problems. The service engineer after receipt of the information from the Complainant had informed him that the chassis along with its cabin of the vehicle to be replaced and for that an amount of expenses would be incurred from Rs.1,20,000/- to Rs.1,30,000/-. Therefore, the Complainant on 25/03/2019 had informed the O.Ps. regarding the problem of the vehicle. But O.P. No.2 did not replace the chassis along with its cabin, despite of repeated requests for the replacement which is within the warranty period. As per terms and condition of warranty and the condition of Insurance Policy O.P. Nos.1,2&4 are liable to bear the expenditure of Chassis along with its cabin. The Complainant also served Advocate notice to the O.Ps. But they did not pay any heed to it. It is also mentioned in the complaint that the vehicle was used by the Complainant for his business purpose which is the only source of his livelihood. Now the vehicle is lying idle in the residence of the Complainant. Hence, the complainant seeking reliefs  directing in the O.Ps. to replace the Chassis along with its cabin and to bear cost of repairing and also sought for professional loss per month till the settlement of the aforesaid claims and also for per month premium of loan till settlement of the claim and also compensation for harassment, mental agony and physical sufferings due to deficiency of service and cost of litigation. 

So, being aggrieved and dissatisfied by the conduct of the O.Ps.,  the Complainant alleging deficiency of service has filed the instant complaint before this Forum claiming to replace the Chassis along with its cabin or Rs. Rs.1,30,000/-, Rs.25,000/- as professional loss per month, Rs.11,563/- as premium for installments per month, Rs.10,000/-  as compensation for causing harassment, mental agony and Rs.10,000/- as litigation costs from the O.Ps.  

Hence this case.

 

3. On the other hand all O.Ps. contested the case by filling written statements. 

        In the written statements the O.P. No.1 submitted para-wise reply to the complaint in seritem. Mostly, O.P. No.1 denied the dispute and averred the instant complaint is false and concocted and it is liable to be dismissed. Moreover, it is averred that the Forum does not have jurisdiction to entertain the instant complaint as there is neither any manufacturing defect nor any deficiency in service on their part.   

      The O.P. No.2 in their written statements / written objection stated that there is no cause of action in filing the instant complaint and the Complainant has approached this Forum with unclean hands by making false allegation against the answering O.P. The problem of the said vehicle of the Complainant was never ever informed to the service engineer of the O.P. No.2. The O.P. No.2 never received any complaint regarding the said vehicle and as such question of replacement the chassis along with cabin does not arise at all. But it is admitted by them that after receiving the advocate notice dated 03/04/2019 they came to learn about the problem of the vehicle and the O.P. No.2 quickly responded to it by sending reply to the Advocate Notice through their engaged Counsel. At last the O.P. No.2 averred that they are  in no way responsible for the defect of alleged vehicle.  

      The O.P. No.3 in their written statements stated that the saves and except what has been specifically admitted the answering  O.P. No.3 denied & disputed each and every statements and avermeants made in the instant complaint. It is also stated that the complaint in question is not maintainable in its present form and nature. It is also stated that the Complainant was not paying the EMI regularly as on 25/06/2019 sum of Rs.33,490/- is due excluding future installment  from the Complainant. It is also mentioned that in the complaint petition the Complainant failed to show any kind of deficiency of service on the part of the O.P. No.3 and so, the O.P. No.3 should be struck out from the instant case. 

         The O.P. No.4 in their written objection / written statement stated that the complaint is not maintainable in law and fact as such the same is liable to be dismissed. The O.P. No.4 is admitted that the vehicles was under the insurance coverage from 18/12/2018 to 17/12/2019 and the vehicle was insured for damages arising out of motor accident as per the policy of the insurance coverage. The O.P. No.4 is / was not aware about the any mechanical defect occurred with the vehicle of the Complainant on 24/03/2019. 

        At last it was stated that the O.P. No.2 is the best person  to detect any defect if there is in the vehicle and the insurer will not be liable if there is any such manufacturing defect and more so, no accidental damages of the said vehicle was occurred.                                                      

EVIDENCE ADDUCED BY THE PARTIES:-

 

 

4. Complainant has examined himself as PW-I and he has submitted his examination-in-Chief by way of Affidavit. In this case the complainant produced 9 documents comprising 17 sheets under a Firisti dated 24/05/2020. The documents are namely Photocopy of the sale certificate, Photocopy of the tax invoice, Photocopy of the Account statement, Photocopy of the Insurance policy, Photocopy of the Registration card of the vehicle, Photocopy of the warranty book of the vehicle, Demand notice dated 03/04/2019 & 25/04/2019, Postal Receipts & Online Delivery tracking report. On identification the documents are marked as Exhibit-I series. The Complainant was cross examined by the O.Ps. sides.

    No evidence is adduced by the O.P. No.1.    

        On behalf of the O.P. No.2 one witness namely Sri Sandeep Debnath, Works Manager-cum-Authorized signatory of M/S. Progressive Automobiles Private Ltd. was examined. The said witness was also cross examined by the Complainant side. The said witness has produced 2 documents namely reply of the notice dated 29/04/2019 & Delivery report. On identification the documents have been  marked  as Exhibit A Series.  

      On behalf of the O.P. No.3 one witness namely Sri Bikash Chandra Deb, a Legal Executive of Cholamandalam Investment and Finance Company Ltd. having its Branch office at 54, First Floor, Shibnagar, College Road, Agartala was examined. He was also cross examined by the Complainant side. The said witness has produced 6 documents namely Original Loan Application Form, Original Loan Agreement Copy, Original Schedule, Original Postal Receipt of the reply sent to the engaged Ld. Counsel of the Complainant by the Customer's engaged Counsel, Current Statement of Account of the Loan Agreement & Power of Attorney of Authorised Signatory.  The documents have been marked as Exhibit -B Series.    

         On behalf of the O.P. No.4 one witness namely Sri Shubhajit Chakraborty, Assistant Manager(Legal), Cholamandalam Ms General Insurance Company, Agartala Branch was examined. He was also cross examined by the Complainant side. The said witness has produced copy of the Policy and details of the Policy.  The documents have been marked as Exhibit -C Series.               

 

5. POINTS TO BE DETERMINED:-

    On perusal of the pleadings of both parties and having regard to the evidence adduced by the parties, the following points are to be determined:

           (i) Whether there is any defect in the vehicle in question for replacement?

    (ii). Whether there is deficiency of service on the part of the O.Ps towards the Complainant?

    (iii) Whether the complainant is entitled to get any compensation/ relief as prayed for?

 

6. ARGUMENTS OF BOTH SIDES :

    At the time of argument, Learned Counsel of the Complainant Smt. Sumi Datta submitted that the inspection report was submitted by O.P. Nos.1&2 before the Hon'ble State Commission in connection with Appeal No.A/10/2020 is not legally valid report. She further submitted that at the time of inspection the Complainant was not present and Complainant was not informed about the date of inspection. Moreover, the inspection report was not made by any expert and it was given by Sri Sandeep Debnath who is an employee of the O.P. Nos.1 & 2 as well as interested person. Smt. Debnath submitted to reject the inspection report and to allow the complaint. 

         On the other hand Learned Counsel Mr. Subhajit Paul on behalf of O.P. Nos.1&2 submitted that this is not the Forum for challenging the inspection report as because the inspection report was submitted before the Hon'ble State Commission in compliance with the order of the State Commission dated 06/02/2021 in connection with the appeal and the Hon'ble State Commission accepted the inspection report and set aside the earlier judgment passed by this District Commission and the case was remanded back to decide afresh relying upon the inspection report. Mr. Paul further submitted that in the report at Para-2 it is specifically mentioned that the vehicle was modified unauthorizedly, Chassis frame was extended on rear side. Unauthorizedly welding found on load body on the vehicle chassis, welding also found on rear side. There was also modification of lift sprint of both side rear and front portion. Rear side load body was increased by 4 feet.   Mr. Paul further submitted that in this regard five Nos. of photographs of the vehicle taken on 15/02/2021 during the course of inspection were also submitted before the State Commission and certificate copy of the photographs and inspection report is submitted before this Commission for consideration and complaint is liable to be dismissed.      

 

7. DECISION AND REASONS FOR DECISION:                                     

      We have carefully gone through the pleadings as well as evidence of both sides and the certified copy of the inspection report. We have also seen the certified copy of the photographs. For the sake of the convenience all the points are taken up  together for decision. 

  Now the question is whether the District Commission has any authority to decide the validity of the inspection report. Learned Counsel of the Complainant though submitted a written objection against the report stating some grounds but Complainant did not file any objection before the Hon'ble State Commission against the said inspection report. From the judgment of the Hon'ble State Commission passed in the Appeal case No.A/10/2020 we find that the Hon'ble State Commission has accepted the inspection report and also gave direction to decide the case afresh for considering the inspection report. We are in the opinion that this District Commission has no authority to reject the inspection report as it is accepted by the Appellate Forum( Higher Authority). 

 

8.              On perusal of the complaint petition we find that the Complainant have suppressed in respect of changing / modification of the vehicle in question during the warranty period. Since inspection report is accepted by the Hon'ble State Commission we have to confine our discussion within the periphery of inspection report. The inspection report made as per order of the Hon'ble State Commission and it is submitted by Service Manager of the O.P. Nos.1 & 2 namely Sri Sandeep Debnath who visited the house of the Complainant along with 2(two) nos. of Automobile Technicians on 15/02/2021 at about 12.10 P.M. and had meticulously inspected the said vehicle of the Complainant and after inspection they have submitted their report and in the report observed as follows:- 

  a). Unauthorized modification done on the vehicle. 

        b). Chassis frame extended on rear side.                                            

          c). Chassis welding found on rear side. 

    d).  Unauthorized welding found on the load body of the vehicle. 

    e).  Unauthorized modification on suspension system. 

  f). Lift sprint modification on both side rear and front portion.

  g).  Rear side load body increased by  4 feet.                                                                                                                                                                               

      During inspection they have also taken five(05) nos. photographs of the vehicle which are submitted before the Hon'ble State Commission. 

 

9.        We have considered the inspection report as well as photographs. It is crystal clear that the Complainant has violated the condition of the warranty as well as he has suppressed material facts in the complaint in respect of changing/modification of the vehicle in question. 

          On overall appreciation of the inspection report we are in the opinion that it is not a case of deficiency of service on the part of the O.P. Nos. 1 & 2 towards the Complainant.        

          Hence, the complaint is dismissed, no costs.              

Supply a certified copy of the judgment to both the parties free of cost. 

 

     Announced.

 

SRI  RUHIDAS  PAL

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA

 

 

 

 

DR (SMT)  BINDU  PAL

MEMBER, 

DISTRICT CONSUMER DISPUTES 

REDRESSAL COMMISSION, 

WEST TRIPURA, AGARTALA

 

SRI SAMIR  GUPTA

MEMBER,

  DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA.