MR. PRABODHA KUMAR DASH, PRESIDENT:-
This C.C.Case No. 9/2020 taken up today for order. Gone through the averments in the complaint petition& written statement filed on behalf of Ops. Heard Ld. Counsel for both the parties & perused the materials exhibited therein. Complainant prayed for replacement of defective vehicle having various defects.
Brief fact
Complainant being unemployed for maintaining his livelihood out of profit of the vehicle TATA Magic Express vehicle purchased from Op No.2 by financing from OP No.4 to 6 respectively the same vehicle having Regd. No. OD-29-E-4745 in which warranty period was for 2 years. The vehicle purchased from OpNo.2 on dt. 30.3.2018 as per the invoice on payment of Rs. 5,13,028/-(Rupees Five Lakhs thirteen thousand twenty eight) only. The service book provided to the complainant at the time of sale as Annexed provided therein under the heading of warranty that the warranty for the vehicle for 2 years from the date of sale or 72000 Kms of its running whichever occurred earlier. After detection of defect in the vehicle the Complainant approached Op No.3(Authorized service Centre, Kendrapara) R.K.Motors on dt. 01.08.2018 for removal of defects. But surprisingly the Op No.3 charged illegally Rs. 1293.60 during the warranty period. Again the vehicle developed dysfunction and the same attended by OpNo.3 on 13.11.2018 & charged Rs. 32,890/- (invoice annexed) illegally without any basis. The same event happened on dt. 15.04.2019 without removing the defect Op No.2 charged Rs. 1115/- illegally in violation of terms of warranty. Finally, on dt. 16.10.19 Complainant produced the vehicle before Op No.2 when the vehicle’s speedometer shown 51,900Kms the concern vehicle stopped on road & the same produced before OpNo.2 with help of another vehicle, instead of removal of defects therein the OpNo.2 demanded unfair amount which was huge for replacement of engine & OpNo.1 to 3 are liable to replace the engine under the warranty. Op No.1to 3 kept the vehicle with Op No.2 unattended & demanded cost of the engine.On replying in the written version the OP No.2 admitted demand of money for replacement of engine. The Op No.2 also opined unless the defective vehicle’s engine replaced the same cannot run smoothly.
The following issues to be determined for disposal for case in hand.
- Whether the Complainant is a consumer under C.P.Act?
- Whether the Complaint case filed before DCDRC within the limitation period as per C.P.Act?
- Whether the Ops are liable for defective product as well as deficiency in service under the C.P.Act?
- Whether the admission of Op No.2 operate as estoppels on other Ops for denial of defect as well as deficiency?
- Whether the Ops are liable for replacement of defective vehicle or other reliefs sought by the Complainant?
- What will be the appropriate relief is just & proper ?
Issue No.1
The Complainant is a consumer under sec.2(7) explanation (a) goods brought & used by him exclusively for the purpose of earning his livelihood, by means of self employment.
Issue No.2
For maintainability of C.C.Case it should have been filed within 2 years of cause of action arosed. The vehicle purchased as seen on the invoice 31.03.2018. It was produced for removal of defect under warranty first on dt. 01.08.2018 the same continued repeatedly till 14.06.2019 non-attended by Ops & being aggrieved C.C.Case was filed on dt. 29.01.2020 well within the prescribed limitation period as under the C.P.Act-2019.
Issue No.3
The vehicle purchased by Complainant on 31/03/2018 having warranty for 2 years as the service book annexed in record which have warranty period till 31/03/2020 or 72000Kms whichever occurred earlier. Each occasion Ops demanded & received money under the receipt which are illegal activities of Ops prejudiced the complainant against the provision of warranty.
Warranty means :- It is a type of guarantee that a manufacture or similar party makes regarding the condition of its product. It also refers to the terms & situations in which repairs or exchange will be made if the product does not function as originally described or intended on perusal of condition of warranty in point No.2, it was stated in service book that “Our obligation under the warranty shall be limited to repairing or replacing, free of charge, such parts of the vehicles which, in our opinion, are defective on the vehicle being to us or to your dealer within the period of warranty as aforesaid”.
On condition No.4 under the warranty card the condition provided therein that, there parts are not manufactured by Tata also have warranty against the manufactured Company.
Defect:- Well defined U/S2(10) C.P.Act-2019 means any fault, imperfection or short coming in the quality, quantity, potency, purity or standard and which is required to be maintained by or under any law, being inforce or under any contract various defect pointed out by the Complainant also by Op No.2 while attended the vehicle for removal of defect could not succeed the removal of defects in the engine as admitted by OP No.2 in his written statement. In our opinion the vehicle in question sold to the complainant was a unmerchantable vehicle [ M.MOSA vs Tata Engineering Locomotive & another, 1994(1)CPR,665, Page-670(T.N. SCDRC) ]. The OpNo.2 &3 taken charges for removal of defect which was inbuilt in the engine. During warranty period complainant paid Rs.1,293/- on dt. 01.08.2018, Rs. 32,890/- on dt. 13/11/2018 & again on 15/04/2019 Rs. 1,115/- as the invoice annexed to the record. OpNo.2 dealer admitted the vehicle suffered from manufacturing defect & advised the complainant to replace the engine & fit one prolife engine. Op No,.2 denied to replace the engine without 50% cost of new engine & Op no.1 agreed to bear 50% cost for replacement of defective engine are the specific admission of No.2 responding to legal answer of Complainant. Therefore, we are considered view that the defect in the vehicle inbuilt known to all the Ops from 1,2 &3 denial of replacement against the principle or terms of contract under the warranty. The OpNo.1 & 2 are jointly liable for defective product and OpNo.2 in addition liable for deficiency in service.
Issue No.4
Reply to advocate notice of Complainant, OpNo.2 admitted such defect which can’t be removed unless the same replaced the same debar the OpNo.1,2 & 3 to say or question about the defective product suffers from no manufacturing defect by the evidence Act section 115 estoppels. Op No.1 & 3 estoppels to say otherwise which already admitted by OpNo.2 that his technician opined after inspection that the engine must be removed for removal of defect which are inbuilt & caused disfunction of engine.
Issue No.5
The OPNo.1 liable for defective product, OpNo.2 also liable for both defective product being an authorized dealer & service provider. Both the OpNo.1 &2 are jointly and severally liable for non removal of defect which caused deficiency in service. The Complainant entitled to relief with a new engine & also for expenses already paid during warranty period and so also for mental agony and litigation expenses.
Issue No.6
After gone through the above discussion on point of facts & laws involved in the case in hand, we are considered view that, the engine must be replace by OPNo.1 & 2 and return the expenses which they have taken from the Complainant Rs. 1293/- + Rs. 1115/- + Rs. 32,890/- in toto Rs. 35,298/-.
Further the vehicle unattended remained with OpNo.2 from 19.10.2019 till today & installment for each month as per the statement of OpNo.4 to 6 is Rs. 12,118/- per month, till delivery of the vehicle the OpNo.1 &2 shall pay installment dues of the Complainant from dt. 19.10.2019.
The OpNo.1 being the manufacturer having its business throughout India also in Odisha & several outlets not received the notice and so also not appeared this Commission. It is presumed that Opno.1 in connivance with OpNo.2 & 3 not deem it fit proper & therefore OpNo.1 set ex-parte. Since it is a year old matter it is not possible on part of this Commission to wait for sufficiency of notice to all the Ops particularly OpNo.1.
O R D E R
Taking into the consideration of the facts & circumstances involved and the prayer made by the Complainant, this Commission’s considered view is that, the Ops shall directed to replace the defective engine with a new one within one month from the date of receipt of this order and so also the Ops are liable to pay the installment amount of the Complainant towards OpNo.4,5 &6 i.e, Rs. 12118/-per month from dt. 19.10.2019 till installation of new engine with @18% P.A. till its realization. The mental agony suffered during these period in our opinion additional Rs. 50,000/- is just & proper to compensated equitably.
It is further directed that Op No.1 &2 shall not demand any extra charges whatsoever from the Complainant. All the exercise of Op No.1 & 2 shall be of free of cost. Further the Op No.4, 5 & 6 shall not take any coercive action against the vehicle till completion of above engine replacement and smooth running of the vehicle. The Complaint case is allowed on contest.
Issue extract of the order to the parties for compliance.
Pronounced in the open Court, on this the 21st day of September,2022.
I, agree.
Sd/- Sd/-
MEMBER PRESIDENT
