Smt. Saritri Patnaik, Member (W)
The fact of the case in brief is that the complainant has filed this Consumer complaint under section 12 of the Consumer Protection Act, 1986 alleging unfair trade practice by the Opposite Parties (in short O,.Ps) and for redressal of his grievance before this Commission.
1. The fact of the case as averred by the complainant is that, the complainant purchased model TATA Acc Ex bearing Registration No: OD-32-5943, chasis No.:MAT445554FZA01245, Engine No. 275 IDIO6AUYS02766 on dated 18.03.2015 bearing Invoice No. Cons. Au-cp2-R-1516-01722 amounting for a cost of Rs.4,18,537/-. The O.P.No.1 is the authorized dealer (shop) and service center of the same was purchased from O.P.No.3 by getting loan for an amount of Rs.2,58,000/-. The said van manufactured by O.,P.No.2 and unfortunately the said van developed manufacturing defect from very beginning of the operating of the business through the Bank, when brought to the knowledge of the above O.Ps, the O.P.No.1 is also extending services from the said van with the failed to cure the defect. The complainant sustained manufacturing defect like the tyres are threaded over the road reading to damage to the tyre and made to replace new types even less than 3000 K.Ms where as the every tyres expected to run 28,000 K.Ms . The complainant complained to the O.P.N o.1 who assured to rectify the defect inherent or otherwise to replace a new one. But all are in vain. In view of the very acts of the O.Ps, the complainant filed this complaint for unfair trade practice against the O.Ps under the Consumer Protection Act, 2019 and sought relief. Hence this is the present consumer complaint.
2. Admitting the C.C. this commission has issued notice to the Opposite Parties and duly acknowledging the same the Branch Manager of O,.P.No.1 is appeared and filed written version. The O.P.No.3 & 4 appeared through their advocates and filed written version. The O.P.No.2 is set exparte on 19.07.2016.
3. The O.P.No.1 filed written version through his advocate. It is stated that the vehicle was properly checked by the complainant and his fellow persons before taking delivery of the same and it was ensured that there was no defect in the vehicle. The complainant has put his signature below the written acknowledgement, “I/we have taken delivery of the above vehicle in good condition from CONSORTIUM automobiles (p) ltd along with a manual and tools as peer manufacturer’s specification to my/our entire satisfaction”. The averments made in the complainant regarding the manufacturing defect of the vehicle from the very beginning is not true and correct and it is not to be relied upon as the complainant did not make any written complainant to the dealer of the vehicle O.P.No.1. The tyres purchased as a replacement for the TATA ACE EX-155R13 LT BPR radial were 165/80 D 13 in size, which are not in accordance with the Tata Motors standard recommended tyres for TATA ACE Ex-155R13 LT8PR. As such the terms and condition contained in OSB at page-4, para5 wee not adhered to. Purchasing bills of the tyres on 04.05.2015, 11.09.2015 and 30.09.2015 from the local unauthorized dealers do not contain the parties of the vehicle to inspire confidence that they were actually used for the replacement of the original damaged ones by the new ones consequent upon the damage caused to the tyres due to the manufacturing defect of the vehicle. On 02.05.2015 the O.P.No.1 provided free service to the complainant’s vehicle by checking the rear tyre wear, cross member, general check up, battery weak/defect etc. The opening and fitting of the damaged cross member of the vehicle was done systematically and the complainant received the vehicle after repair of all jobs to the satisfaction having put his signature. The complainant has not filed any relevant document to inspire confidence that the diesel consumption of the vehicle was 3 K.M. per liter i.e. below the approved standard of memo of argument of the complainant. The complainant has not produced any “Pollution Testing Certificate” in support of his allegations that the vehicle emitted a lot of smoke causing environmental pollution. On attending the complaint on 02.05.2015 the technician of TATA Motors observed that due to external hit/accident, the front cross member of the vehicle got bent and it required replacement. But the complainant did not care to replace the bent cross member by a new one for which the wheel alignment of the vehicle went outs of order, resultantly the tyres got damaged. Owing to carelessness, lack of proper maintenance and deficient in calibration of the wheel alignment of the vehicle, the tyres threaded over the road, for which they got damaged without lasting up to the standard mileage for such negligence on the part of the complainant none other than him is to blame. As per the terms and conditions stipulated in the operator’s service book, “the warranty shall not apply if the vehicle or any part thereof is repaired or altered otherwise than in accordance with the TATA repair procedure by any unauthorized service center/dealer/sub-dealer, but the vehicle owner, herein the complainant did molt abide by the same. With a malafide intention to avoid making further payment of the vehicle loan EMI’s to the hypothecating bank, the complainant has foisted this case without any cogent and convincing explanation. The complainant without adhering to the terms and conditions of the warranty as stipulated in the operator service book supplied to him at the time of receiving the vehicle, he has filed this case under the misconception that he would get the reliefs as claimed by him. Since the complainant has not come to the Hon’ble Commission with clean hands and as his allegations sans merit, he is disentitled to any relief which respect to his claims. Hence O.P.No.1 prayed to dismiss the complaint in the interests of justice.
4. The O.P.No. 3 filed version through his Advocate. It is stated that there is neither any allegation of any deficiency of service nor unfair trade practice, etc. against the answering O.P.No.3 Bank and rightly also no relief has been sought for against the answering O.P.No.3 Bank. Hence O.P.No.3 Bank has nothing to do with alleged defect in the vehicle in question. In reply to paragraph No.1 & 2 of the Consumer complaint it is stated that the complainant had approached before Jagannathpur Branch of the O.P.No3 Bank to finance him for purchasing a new TATA ACE vehicle from O.P.No.1. After detail deliberation with regards to the finance amount, tenure of loan, installment amount etc. a loan agreement was executed among the complainant. One Urbasini Nahak as Co-borrower/guarantor and the O.P.No.3 Bank as financer vide loan agreement No.HMCVJAG00048543. The choice and selection of the vehicle was purely complainant’s own decision and O.P.No.3 has nothing to do with it. In terms of the loan agreement the complainant is liable to pay the installments in time and the condition and the alleged defect in the vehicle are irrelevant to the loan agreement. But the loan ledger of the complainant reveals that he is a defaulter of 4 number of EMIs amounting to R.36,050/-towards installment dues only excluding charged accrued thereon. If the complainant fails to regularize the loan account then the O.P.No.3 Bank may be constrained to proceed against him in terms of the loan agreement as permissible under law. All other assertion and allegations contained in the consumer complaint are not against the O.P.No.3 and hence the same need no reply. The complaint may be directed to regularize the loan account and pending of the consumer dispute should not be taken as a plea for not making payment of the loan dues as the same in not tenable in the eye of law. Hence prayed to dismiss the case against the O.P.No.3 Bank.
5. The O.P.No.4 filed written version through his advocate. It is stated that the complaint filed by the complainant does not make any allegation or any cause of action as against the O.P.No.4 and neither has the complainant sought for any relief from this Hon’ble Commission as against the O.P.No.4. The O.P. has no role in the present disputes which is purely between the complainant and O.P.No.1 & 2 herein above and further more the allegation of manufacturing defect is solely covered by the warranty issued by O.P.No. 1 & 2. Hence there is no necessary to impleaded this answering O.P no.4 in the present proceedings. This O.P. no. 4 has neither committed any deficiency of service nor any unfair trade practice in any point of time. This O.P. no.4 prayed to delete him from the array of parties in the present case and thus render justice.
6. On the date of hearing of consumer complaint learned counsel for the parties was present. We heard argument from both sides at length. We perused the complaint petition, written version, written arguments and documents placed on the case record. The complainant purchased model TATA Acc Ex bearing Registration No: OD-32-5943, chasis No.:MAT445554FZA01245, Engine No. 275 IDIO6AUYS02766 on dated 18.03.2015 bearing Invoice No. Cons. Au-cp2-R-1516-01722 amounting for a cost of Rs.4,18,537/-. The O.P.No.1 is the authorized dealer (shop) and service center of the same was purchased from O.P.No.3 by getting loan for an amount of Rs.2,58,000/-. The complainant could run the vehicle for his self employment nearly got run for one month only i.e. before the 1st service but the said vehicle was making trouble owing to manufacturing defect like the consumption of diesel was very high as such for three (3) kmt. Consumed 1 ltrs. of the diesel. Apart from the excessive consumption as per the standards of O.P.No.2 is at 20K.M. for that reason there is an expected seizer of machine/engine jam leading to replacement the tyres is expected to run for 28000 K.M. But tyres were put to replace for and near 500 K.M. and there is a greater release of carbon particles to the atmosphere leading to environmental pollution. To substantiate his case the complainant has filed evidence on affidavit, documents as per list along with written notes of argument. The van was found to be defective during warranty/guarantee period and the O.Ps failed to rectify the same inspite of repeated approach by the complainant for which undoubtedly the complainant has sustained mental agony.
7. On foregoing discussion and taking the sole testimony of the complainant in to consideration, we hold that the O.P 2 is negligent in rendering proper service to the complainant. After found defect in the tyre during warranty period, and the vehicle did not roadworthy, the complainant approached the O.P.No.2. On checkup the O.P.No.2 ascertained that due to external hit/accident ‘front cross member’ was bend and for which vehicle wheel alignment goes out of order and due to wrong wheel alignment tyre was damaged as admitted by the O.P.No.2 in its written version. But the O.P. No.2 neither chooses to remove the defects in the damaged parts of the vehicle nor advised the owner of the vehicle i.e., the complainant to replace or repair the said damaged parts in the instant case. The complainant to save from the clutches of the O.P.No.3 & 4 filed this case instead of intimate about the damages in the vehicle. However, in the instant case, the complainant has not submitted any expert opinion about that, ‘the vehicle is having manufacturing defects due to damages in tyre’. Law is well settled that without having any technical expert’s opinion on the point of manufacturing defects in the vehicle it cannot be declared that, the vehicle is having manufacturing defects the liability cannot be imposed upon the manufacturer replace the vehicle. Hence, in our considered view there is deficiency in service on the part of the O.P no. 1 & 2 only and dismissed against the opposite party no. 3 & 4.
8. So far as the compensation and costs of the case is concerned, we are convinced that the complainant has repeatedly run after the O.P no. 1 & 2 for repairing or replacement of his defective vehicle but the O.P no. 1 & 2 failed to take any effective steps to short out the problem of the complainant and the vehicle laid ideally for long time without use and the complainant failed to earn his livelihood out of it since 2015. And for which the complainant has suffered physically and mentally for which he is to be compensated. Further the complainant is also entitled to get costs of litigation since he has hired the services of an advocate for filing his complaint in this Commission and has incurred expenses attending the case. Under the above facts and circumstances, in our considered view, it will be just and proper to award compensation as well as litigation cost in favour of the complainant.
9. Hence in these circumstances, both the O.P.No. 1 & 2 are jointly and severally liable and it is directed to both the OP No. 1 & 2 to repair the front cross member or replace the same along with correct the alignment in free of cost and make the vehicle roadworthy and further it is directed to both the O.Ps to extend the warranty period for a period of one more year. Further, the O.P.No.2 is directed to pay compensation of Rs.70,000/- and litigation cost of Rs.20,000/-to the complainant within 45 days from the date of receipt of this order failing which all the dues shall carry 12% interest per annum till its actual date of realization and the complainant is at liberty to take appropriate steps in accordance to the consumer protection Act for realization of all dues. This case is disposed of accordingly.
A copy of this order be also sent to the Secretary, State Consumer Disputes Redressal Commission, Odisha, Cuttack for information and a copy of same be sent to the server of www.confonet.nic.in for posting in internet. After compliance the case record be consigned to record room.
