DATE OF FILING                    :     22-3-2013.

DATE OF S/R                            :      19-4-2013.

DATE OF FINAL ORDER      :     10-9-2014.

Sri Sandip Kumar Ghosh,

son of late Pashupati  Ghosh,

of  no. 16 ( old ) New 48/6, Panchanantala Road, P.S. Liluah,

District – Howrah,

PIN – 711204. ----- ---------------------------------------------------- COMPLAINANT.

-          Versus   -

1.      Furture Automobile Agency Pvt. Ltd.,

1, British Indian Street, Mezzanine floor,

Room no. 28 and 17, Kolkata – 700 069.

2.      V.E. Commercial Vehicles Limited,

102, Industrial Area No. 1,

Pitampur – 454775.

3.      The Chief  Manager,

Allahabad Bank, Lake T own Branch,

Kolkata – 700 089.-------------------------------------------------OPPOSITE PARTIES.

                                                P    R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.               The instant case was filed by complainant U/S 12 of the C.P. Act, 1986 wherein the complainant has  prayed for direction upon the o.p. 1 to  install a new engine and other components for smooth plying of the Ichar BS IV Bus lying at the workshop of the o.p. no. 1 and to pay compensation to the tune of Rs. 6 lakhs for the loss sustained by the complainant for no fault of his and further Rs. 1 lakh for causing harassment and deficiency in service together with other reliefs.

2.               The complainant Sandip Kr.  Ghosh being an unemployed youth purchased Ichar vehicle 10.90 L BS IV  from o.p. no. 1 through o.p. no. 2 after securing bank loan of Rs. 12.4 lakhs and the same was delivered on 02-11-2011. Since inception, the engine was not running properly and ultimately it could not ply after 7332 Km. and accordingly it was placed in the workshop of the o.p. no. 1 on 16-07-2012. Till 26-09-2012 the vehicle was placed before the o.p. no. 1 garage thrice as it developed congenital defect and ultimately it ran only 18000 Km. during this period of 11 months. In spite of the efforts of the o.p. no. 1 the engine could not be set in good condition. Hence the case.

3.                  The o.p. no. 1 in their written version contended interalia that after several

repairments the engine was set on good condition ; that the defects as alleged were caused  by the complainant himself for changing the pattern and the body over the chassis ; that the attempt of the complainant is motivated and to fleece extra money.

4.                  The o.p. no. 2 in their written version contended interalia that the defect as

found were negligible and the repairment  was done within the warranty period; that no question of replacement of the engine does arise.

5.                  Upon pleadings of  parties two points arose for determination :

i)          Is there any deficiency in service on the part of the O.Ps.  ?

ii)                  Whether the complainant is  entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

4.               Both the points are  taken up together for consideration. Admittedly the vehicle bearing chassis no. MC 217 LRTOBR 236248 was delivered to the complainant on 02-11-2011. It is the persistent claim of the complainant that he was not given any opportunity for pre delivery inspection. In fact he had no choice for selection, rather he was thrust upon to take delivery of the same  as if the o.ps. are the supreme authority and there cannot be any defect in their goods.

5.               Prior to taking up the issue of mechanical defect, we must indicate some irregularities as pointed out by the complainant.  Though the vehicle was delivered on 02-11-2011, the o.p. no. 1 handed over the insurance to the complainant which carried the coverage period from 31-10-2011 till 30-10-2012. However, this irregularity may be regarded as negligible.

6.               But the surprising conduct of the o.p. no. 1 in not delivering the sale  certificate to the complainant at the time of delivery of the vehicle cannot be overlooked.  The sale certificate was issued on 22-02-2012 while the vehicle was delivered on 02-11-2011. Even the allotment letter issued carries the date as 06-02-2012. Very interestingly the temporary registration certificate which is mandatory for placing the vehicle on road, was given on 22-02-2012 which remained valid for only one month i.e., till 22-03-2012. We fail to understand why and for what specific reason the o.p. no. 1 adopted such delaying tactics ?  

7.               It is evident from the enclosures that the complainant being an unemployed youth purchased the vehicle for running a bus for the maintenance of his livelihood. He secured loan from the o.p. no. 3 bank. Naturally he had a dream that his family would experience good days when the bus would ply in the route for earning. Even to save expenditure he himself started working as helper of the bus. But soon his dream was shattered and he confronted the crude reality.  The bus started plying since April, 2012. Since inception the engine was found not functioning properly. ‘The  wearer know where the shoe pinches.’  The complainant had a definite hunch that he was supplied with a vehicle having patent mechanical defect. This is not narration fancied by the complainant.  The persistent claim of the complainant is validated by the subsequent events.

8.               As the ghost of huge EMI chased the complainant he somehow plyed the vehicle ignoring the defect.  When it covered 7332 km, the complainant had no way out than to place same before the shop of o.p. no. 1 on 16-7-2012 at  Chamrail, Howrah. On inspection the agent of o.p. no. 1 detected some erratic noise emanating from the engine. Accordingly, cylinder head assy was opened and a separate identical head assy was fitted. When started, the engine released the same sporadic sound as detected earlier ; that means the defect remained unchanged.

9.               The ordeal did not end there. The o.p. no. 1 decided to open all components of the engine for thorough checking and the complainant was requested to cooperate. On 22-9-2012 the o.p. no. 1 through a letter informed the complainant that a new engine fitted in the vehicle and the same was under testing. By another letter dated 24-9-2012 the o.p. no. 1 further informed that the vehicle was again placed in the workshop of the o.p. no. 1 for engine noise problem. Meanwhile one new engine being no. E 483 CD BK 539822 was fitted replacing the existing one. After taking delivery of the same the complainant to his utter dismay found the same was not free from the fault and defects and became a victim of low pick up. Again, the frustrated complainant placed the vehicle in the workshop of the o.p. no. 1 for removing the mechanical defect, that means the newly purchased vehicle remained idle since 16-07-2012.

10.           Again the o.p. no. 1 wrote a letter to the complainant on 09-10-2012 informing that after thorough check up the fip assy ede wiring and injector assy were replaced.  Even then the pick up problem persisted and the vehicle remained unworthy of plying.  The o.p. no. 1 assured of further inspection by expert technician.

11.           From the enclosures it is clear that the permit was granted till 14-10-2012. The complainant, an  unemployed youth, dreamt of removing the financial problem of his family by running the bus. But the dream got a jolt for the unfair trade practice committed by the o.ps. What better instance can be of deficiency in service than the instant one? The complainant never imagined that a new engine manufactured by the o.p. no. 2 can develop such mechanical defects which are unrepairable. He had to take  huge loan from the o.p. no. 3 bank. Naturally, the burden of EMI always haunted him. If the earning medium i.e., the bus remains idle in the garage of the o.p. no. 1, the earning is nil. In our considered opinion the o.ps. are solely responsible for thrusting a defective engine to the complainant and they have no respite from the rigours of law. The job card reveals that the engine had major defect. In spite of replacement thrice within 2/3 months of the purchase of the vehicle, the congenital defect continued. The allegation on the part of the o.ps. that the vehicle was not handled properly by the complainant cannot be sustained for lack of any evidence. Naturally the allegation of inherent mechanical defect as alleged by the complaint comes to surface.  The case at hand has true likeness with that of the decision cited in IV (2012) CPJ 87.

12.            In an identical judgment as reported in I (2005 ) CPJ 196 the manufacturer was directed to replace the defective car with a new one as the mechanical defects were proved.

13.           In the instant case the mechanical defects surfaced within the warranty period. It was the duty of the dealer to attend the same and repair the vehicle. In spite of his repeated attempts the o.p. no. 1 could not set the engine in correct motion and naturally the allegation of the complainant that the engine suffers from manufacturing defect is established.

14.           In another identical judgment the Hon’ble National Commission as reported in II ( 2013 ) CPJ 534 directed that the dealer cannot escape his responsibility.

15.           In the decision reported in IV (2013 ) CPJ 410 (NC) which uniquely  matches the case at hand, Hon’ble National Commission upheld the judgment of the District Forum for a case of manufacturing defect of the vehicle.

16.           We have no hesitation in our mind that the engine sold to the complainant by the o.p. nos. 1 & 2 suffers from congenital manufacturing defect and it is beyond repair in spite of several attempts by the o.p. no. 1. The complainant purchased the vehicle after securing huge loan from the o.p. no. 3 bank and no doubt his dream got frustrated.  Much have been argued over the point of livelihood of the complainant or the prayer of the complaint before this Forum as it was purchased for commercial purpose as alleged.  The complainant in his petition of complaint stated in no uncertain terms that he purchased the vehicle for the maintenance of his livelihood of his family. 

17.           The Hon’ble  Apex Court in a decision reported in AIR 1995 page 1428 has put the identical dispute at rest. In tune with the observation of the Hon’ble Apex Court we are also of the view the complainant is a consumer within the meaning of  Section 2(1)(d) of the  C.P.  Act, 1986. 

           In the result, we are of the clear view that the o.p. nos. 1 & 2 cannot have a respite from the rigours of law as gross deficiency in service and unfair trade practice was committed by them. It is, therefore, a fit case where the prayer of the complainant shall be allowed. Both the points are accordingly disposed of.             

      Hence,

O     R     D      E      R      E        D

      That the C. C. Case No.78   of 2013 ( HDF 78  of 2013 )  be  allowed on contest with  costs  as against  the O.P. nos. 1 & 2 and dismissed without costs as against the o.p. no. 3.

       The o.p. nos. 1 & 2 be directed to replace the existing defective engine with a new one or alternatively  refund the purchase money to the complainant within 30 days from the date of this order.

      The o.p. nos. 1 & 2 be directed jointly and severally to pay compensation to the complainant to the tune of Rs. 4 lakhs for causing mental pain, prolonged harassment and unfathomable frustration together with litigation costs of Rs. 10,000/-.

      If the compensation amount is realized the complainant be directed to deposit a sum of Rs. 50,000/- to the Consumer Welfare Fund.       

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.

DICTATED  &    CORRECTED

BY   ME.  

  (    T.K. Bhattacharya  )                                              

  President,  C.D.R.F., Howrah.