Sri S.K.Sahoo,President.
The complainant has filed a present petition U/s. 35 of C.P.Act, 1986.
2. Shortly stated, the case of the complainant is that he is an unemployed youth and the opp.party is doing his business to earn profit. The complainant has purchased one JCB backhoe equipment bearing No. 2816426 from the opp.parties by availing finance from Canara Bank. The said JCB was registered under the RTA,Angul. The complainant has appointed an operator and helper to operate the same on monthly salary basis of Rs.18000.00 and Rs.12000.00 respectively. After operation of one month, the operator found defect in the JCB. It was consuming more mobil and engine sound was coming out of the machine. Immediately the complainant informed such defect in the machine to the opp.party. After receiving the complaint from the complainant, the opp.party assured to remove the defect appeared, through his service engineer. As per advice of opp.party and his service engineer, the operator of the JCB continued to operate the same. After some days the operator found increase of the defects noted earlier. There was maximum heat in the engine. There was also a peculiar sound from the engine and smoke was coming out. Due to more vibration the JCB need more mobil. After getting information from the operator the complainant again informed the opp.party for removal of such defect. Again in the month of May, 2020 the complainant informed the opp.party over telephone regarding such defect, as it was under warranty and guaranty period. After receiving the said complaint, the opp.party advised the complainant not to operate the JCB till it is examined and verified by his service engineer at the spot. As per the advise of the opp.party, the complainant kept the JCB idle . On 14.06.2020 the service engineer of the opp.party came to the spot, examined the JCB machine and after due verification he found all the defects pointed out by the complainant were true. Without any repairing the service engineer advised the operator and the complainant to run the JCB with Top Up lubricant again and again and to inform him whether the machine is consuming high lubricant or not and assured for next visit. In the month 1st July, 2020 again the service engineer of the opp.party and JCB company engineer visited the spot, verified the JCB machine and found the defects to be manufacturing defect of the engine. Both the engineers advised the operator to use the machine by putting maximum lubricant oil till the engine is replaced. They also advised the complainant to bring the JCB to the work shop of the opp.party from the spot after receiving a phone call from the opp.party. On 14.08.2020 the service in-charge of the opp.party namely Satyajit asked the complainant to produce the JCB in their work shop for replacement of the defective engine. Accordingly the complainant produced the same before the work shop in-charge of the opp.party. The opp.party disclosed that they will only charge for coolant .During such change of engine the opp.party caused delay of one and half month to replace the defective engine , for which the complainant was unable to progress his work at the work site and suffered mental agony and subjected to loss and harassment. On 31.08.2020 at the time of delivery the opp.party demanded an amount of Rs.30,109.00 which is much more than the price of coolant. They also charged for service towards replacement of the engine. Due to financial hardship the complainant requested the opp.party to waive out the illegal demand made by him and to receive only the cost of the coolant, but the opp.party refused .The complainant had no alternative and to avoid further loss, contacted his friend who had deposited Rs.1,00,000.00 towards booking amount in favour of the opp.party for a new machine in the name of Shree Ganesh Enterprises and later he cancelled the said booking. The opp.party had not returned the said amount to the friend of the complainant. So the complainant approached his friend, who in –turn approached the opp.party to deduct an amount of Rs.30,109.00 and returned the rest amount to him. The opp.party refused to do so. The demand of the opp.party from the complainant is with ulterior motive. There is also deficiency in service by the opp.party who adopted unfair trade practice. Hence this case.
3. Notice was issued to the opp.party through Regd. post with A.D on 19.02.2021 which was duly served and the opp.party appeared through his Learned Counsel. On 08.11.2021 the opp.party filed the show cause.
The case of the opp.party is that the case is not maintainable either in law or in fact. There is no cause of action to file this complaint against the opp.party. The allegations made in the complaint are totally false, frivolous and concocted one. It is true to speak that the complainant at several times made complaint against the vehicle but always the vehicle was in operating conditions and the complainant was receiving the fruits of such operation . The opp.party in several occasions informed the complainant to receive his machine from the work shop after the service of the vehicle was completed. The complainant was not taking the machine from the work shop on different pretext to harass the opp.party knowingly. On 17.09.2020 the personnel’s of the opp.party sent a request letter to the complainant to take back the machine from the work shop by paying an amount of Rs.30,109.00. The complainant has relied on dtd.21.09.2020, telling falsely that as the machine is faulty one, you should replace the same, to which the opp.party is denying. The complainant has narrated false allegations against the opp.party through out his complaint petition. The complaint filed by the complainant be rejected in Lamine .
4. In the complaint petition the complainant has mentioned that he has purchased a JCB backhoe bearing No. 2816426 from the opp.party by availing finance from Canara Bank which was registered under RTA,Angul. It is further alleged that the complainant had engaged one operator and helper to operate the said machine on payment of monthly salary of Rs.18,000.00 & Rs.12,000.00. At paragraph- 4 the complainant has clearly mentioned that defect found in the machine during operation of the same by the operator. It is also clearly mentioned at paragraph- 6 that the defect increased after some days. The defect was consumption of more mobil, maximum heat coming from the engine, peculiar engine sound with high smoke and maximum vibration. The complainant has filed the photo copy of the insurance papers, registration certificate which shows that the complainant is the owner of the JCB backhoe. The complainant has also filed the photo copy of a lot of communication with the opp.party through Email. It further appears that messages sent to the opp.party through Email on 11.09.2020 at 10.06A.M and 10.07A.M could not be delivered to the opp.party because the address could not be found or is unable to receive the mail. It is also clear from the photo copy of the money receipt issued by the opp.party on 18.09.2022 that the opp.party has received an amount of Rs.30,109.00 from the complainant by cash . It is specifically alleged that the defect was found when the vehicle was covered under warranty and guaranty period. This allegations made by the complainant in the complaint petition is not specifically denied by the opp.party in his show cause. The complainant has also alleged that in several occasions he approached the opp.party for repairing of the JCB backhoe but the opp.party did not take any steps at appropriate time. In the written statement at paragraph-3 the opp.party also admitted that the complainant has made complaints against the vehicle at several times. So from the materials on record it is crystal clear that there was defect in the vehicle purchased by the complainant from the opp.party during the period of warranty and guaranty but the opp.party did not take any step for necessary repairing of the same at appropriate time. On the other hand he has charged and received an amount of Rs.30,109.00 from the complainant on 18.09.2002 and issued money receipt in his favour. He has not mentioned for what reason he had received the said amount from the complainant. Issuance of such receipt without mentioning the reason by itself shows deficiency in service by the opp.party.There is no specific denial of the allegation made by the complainant. There is evasive denied. In the written statement the opp.party at paragraph-5 has mentioned that on 17.09.2020 the personnel’s of the opp.party has sent a request to the complainant to take back the machine from the work shop by paying an amount of Rs.30,109.00. The opp.party has not adduced any evidence in support of such facts mentioned in the show cause. He has not filed the copy of the said letter alleged to have been issued to the complainant. It appears that such letter was not issued to the complainant on 17.09.2020 .In absence of such document no reliance can be placed on the contents of the show cause. So after scanning the pleading of the parties and the documents relied on by the complainant we are constrained to hold that there is deficiency in service on the part of the opp.party which caused mental agony, harassment, financial loss to the complainant. The opp.party has adopted unfair trade practice by demanding money from the complainant during the warranty and guaranty period.
5. Hence order :-
: O R D E R :
The case be and the same is allowed in part against the opp.party. The opp.party is directed to return an amount of Rs.30,109.00 (Rupees Thirty Thousand One Hundred Nine) only to the complainant along with interest @ 9% per annum from 18.09.2020 till payment is made. The opp.party is further directed to pay an amount of Rs.30,000.00 (Rupees Thirty Thousand) only as compensation for mental agony, harassment, financial loss, unfair trade practice along with Rs.5,000.00 towards cost of litigation to the complainant . The opp.party is directed to pay the aforesaid amounts within one month from the date of receipt of this order, failing which he is to pay penal interest @ 12% per annum on 30,109.00 (Rupees Thirty Thousand one Hundred Nine) only from 18.09.2020 till payment is made and penal interest @ 12% on the damage and litigation expenses of Rs.35,000.00 (Rupees Thirty-Five Thousand ) only after one month of receipt of order till payment is made.
