Counsel for:

The Complainant: Self

The OP 1: None

The OP.2: Shri N.R.Mishra, Advocate

The OP.3: Shri R. K. Hota, Advocate

     JUDGEMENT

Shri A.K.Patra,President:

1. The captioned consumer complainant is filed by the complainant named above inter alia alleging deficiency in service & unfair trade practice for collection of excess price while replacing the defective vehicle with new one.
2. The complainant seeks for an order directing the        Opposite Parties to waive off 13
   (thirteen) numbers of EMIs with interest from his new loan   financed by OP No.3.
3. Brief facts of the complaint are that, the complainant has purchased a Tata Motors make vehicle for self employment on dt.21.09.2020 from Opp.Party No.1- Kalinga Auto Syndicate, Bhawanipatna by paying down payment of Rs.1,50,000/- and rest amount of Rs.4,64,000/- was financed by the Opp.Party No.3 – Chola Mandalam Investment & Finance Company, Bhawanipatna repayable in 47 EMIs @ Rs.12,236/- per month. The vehicle was registered under RTA, Kalahandi vide Registration No.OD08 P 1002  on dt.22.09.2020 .  After three months of its purchase the vehicle shows serious pick up problem for which the complainant approached the Opp.Party No.1 to rectify the defect and the Opp.Party No.1 changed some spares but the defect could not be rectified. On dt.13.06.2021 the complainant  lodged complaint before the Opp.Party No.2 through e-mail for repairing  of his vehicle and the employee of Tata Motors further  changed some spares  parts  but problem could not be rectified and again on 7.10.2021  the complainant approached the Ops for replacement  of the vehicle or to refund  the sale price of the vehicle . On 27.10.2021   the Ops informed the complainant  that, they have requested  the Senior Management for replacement of the vehicle but it will take some time for approval and on 9.11.2021  the request for replacement  of the defective with new one was approved but  on 23.11.2021 the Tata Motors Sales Territory Manager compelled the complainant not to claim the 13 Nos. of EMIs  which was earlier paid to the financer i.e. Rs.12,236 x 13 = Rs.1,59,068/-  and on dt.3.12.2021 the vehicle was replaced with a new one considering the down payment of Rs.1.5 Lakhs and rest is again financed through  Opp.Party No.3 repayable in 47numbers of  EMIs @of Rs.12,180/- per month. The complainant has deposited total amount of Rs.3,09,068/-   but the Opp.Party considered earlier payment of  Rs.1.5 Lakhs only and compel to pay the full price of the said new vehicle  .Hence, this complaint.
4. To substantiate his claim the complainant has filed the  following documents:- (i) Photocopy   RC particulars,(ii) photocopy of  Sale Certificate dt.21.09.2020,(iii)photocopy of Vehicle Details Showing in Registering Authority,(iv) photocopy of Tax Invoice dt.19.09.2020,(v)photocopy of  Account Statement issued by Cholamandalam investment & finance company , (vi) photocopy of email dt.13.06.2021,25.11.2021,07.10.2021,21.12.2021(vii) photocopy of Insurance details. So also the averment of complainant petition is supported by an affidavit of the complainant.
5. Being notice, the Opposite Party No.2 & 3 appeared through their Counsel but failed to filed their written version within the stipulated period of time as prescribed under C.P.Act.
6. The written version filed by the Op 2 after the stipulated time period as prescribe under C.P Act has not taken in to consideration in view of order dt.04.03.2020 passed by the Hon’ble Supreme Court of India in New India Assurance Co. Ltd. vrs Hilli Multi Purposes Cold Storage Pvt. Ltd. .However he is allowed to take part in the hearing of this case without Written Version.
7.  The Opp.Party No.1 neither appeared nor filed their written version though the notice no 148 dt.21.06.2022 through Registered Post is properly served on 25.06.2022 as it revels from Postal  Track Report vide  Consignment Number RO051478259IN  placed on record .As such allegation made in the complainant petition remain unchallenged /undisputed.
8. During the course of hearing the Learned Counsel for the Opp.Party No.2 preliminarily, raised objection on the maintainability of this complaint as the complainant has purchased the alleged vehicle for the commercial purposes as such he is  not a consumer as defined under C.P.Act. It is submitted that, the Opp.Party No.1 is the authorized dealer who made all the sale formalities   and all the financial transaction were carried out with the Opp.Party No.3.  The Opp.Party No.2 does not have any role except the fact that it is solely manufacturer of the said vehicle and that, considering the grievance of the complainant the  Op 2 has already replaced the defective vehicle having Chassis No.MAT559004LVF15040 with a similar vehicle having Chassis No.MAT559002MZH17942.  All the sale transaction and material formalities undergone between the dealer, financer & complainant and the OP2 is no way concern with the sale & finance of the alleged vehicle.
9.  It is further submitted by the learned counsel for the Opp.Party No.2 that, the complainant has purchased one Tata Ace vehicle for commercial purpose on 19.09.2020 from the Opp.Party No.1 having Chassis No. MAT559004LVF15040 and when some defect arose it was repaired and later on considering the grievance of the complainant the same was replaced with new one of  same model on 03.12.2021 vide  Chassis No. MAT559002MZH17942. The complainant did not have to pay for the Registration & Insurance. It is further submitted by the learned counsel for the OP No.2 that, the modalities in connection with such replacement was carried out between the Opp.Party No.1 & 3.The complainant and the Op No. 2 has not entered into any sale transaction and any dispute concerning the waiver of EMIs in connection with the financed substituted new vehicle is not maintainable against the OP No.2. If the complainant was not satisfied with the terms of settlement of the finance he should have raised the issue prior to exchanging the vehicle but after getting the replacement of vehicle the complainant raised the issue which shows that, the claim is motivated. Prior to entering into sale transaction for purchasing the new vehicle the complainant have worked out the modalities of settlement with the Opp.Party No.1 and at a later stage the Opp.Party No.2 cannot induct in the instant case and this OP 2 is no way concerned regarding refund of 13 EMIs with interest as there was no settlement between the OP No.2 and complainant.
10. Further the learned counsel for OP No.2 submitted that, during replacement of the vehicle having Chassis No. MAT559004LVF15040 the down payment amount of Rs.1,50,000/- was refunded to the complainant  and in connection with the replaced vehicle having Chassis No. MAT559002MZH17942 Further it is submitted by the learned counsel for the  Opp.Party No.2  that, this complaint is not maintainable as the  said vehicle  is used for commercial purpose for earning profit and not to earn livelihood as such the complainant is not a consumer and liable to be dismissed.
11. After careful perusal of the materials on record, this Commission found that, the complainant has lodged this complaint alleging unfair trade practice & deficient service on the part of the Ops for excess price demanded by Ops towards replacement of the defective vehicle with new one which caused financial loss & mental agony to  the complainant and finding no other option the complainant has approached this Commission with his  grievance.
12. Here in this case there is no dispute that, the complainant has purchased a vehicle from the OP NO 1 manufactured by OP 3 and it is financed by the OP 2. Later on the vehicle got replaced with new one of same model as the vehicle suffered defects. During  replacement  of  the vehicle the OP NO 1 & 3 has consider the  earlier down payment of Rs.1,50,000 and also not charge for registration & insurance of the vehicle from the complainant .
13. Admittedly the financer /Op 3 had financed the previous vehicle and has already received repayment 13 EMIs @ 1223 out of 47 EMIs and later on financed for the afore said newly  substituted vehicle against the previous defective vehicle .  The amount of Rs 1,50,000/ previously paid to the OP 1  is adjusted in the subsequent vehicle and rest amount is financed by the Op 3 repayable in 47 monthly EMIs@ Rs 1218  .The the registration fee & insurance charges for new vehicle is not charged from the complainant .Now the Op 3 is claiming repayment of entire 47 EMIs@ Rs 1218  per month  without considering the previous repayment of 13 numbers of EMIIs paid @ 12236 per month where as the complaint is claiming exemption from repayment of said 13 number of monthly EMIIs already paid @ 12236 with respect to the subsequent finance.
14. No written version is filed by the Ops denying the claims of the complainant as such the claim of the complainant remain undisputed.    
15. Here the doctrine of non –traverse will rightly applicable as non of the allegation made by the complainant are ever disputed or traversed by the O.Ps in any manner .The opposite party have neither    disputed nor produce any evidence contrary to the averment of the complainant which in terms is a clear admission of facts of the complaint and the same need not proved as per Sec 58 of Indian evidence Act. Law is well settled that  every allegation of facts in the complaint if not denied specifically or by necessary implication , or stated to be admitted in the pleading of the O.P shall be taken to be admitted accept as against a person disability . Where the O.ps have not filed a pleading it shall be law full for the court to pronounced judgment on the basic of the fact contend in the plaint except as against the person under a disability (Reliance placed upon the judgment of the Hon’ble Supreme Court passed in  M.Venkataramana Hebbar Vs M. Rajagopal Hebbar & Others, Lohia Properties (P) Ltd Vs. Atmaram Kumar).
16. Sec 38 (6) of C.P Act 2019 casts an obligation on the District Commission to decide a complaint on the basis of the evidence brought to  its notice by the complainant and the service provider. Irrespective of whether the service provider adduce evidence or not, the decision of District commission has to be base on evidence relied upon by the complainant. The onus through is on the complainant making allegation.
17. To substantiate his claim the complainant has filed his evidence on affidavit. The facts stated there in the evidence affidavit of the complainant Sourava Kumar Mishra  are corroborating with the averments of the complainant petition  .It is stated that the complainant is running a Mixture Manufacturing (snacks & namkeen ) unit at village Chikuli ,PS-Junagarh, Dist- Kalahandi ,Odisha availing a loan Rs 15,30,000/- under Prime Ministers Employment Generation Program  Scheme of Central Government being Financed  by SBI, Charbahal Branch since 2017. And that, to supply the product of his unit , he has purchased the alleged vehicle TATA ACE GOLD (Diesel) vide Regd. No. OD O8 P 1002 availing a finance assistance from Cholomandalam Investment & Finance Company Ltd ,Bhawanipatna Branch/OP 3 and that ,he has engaged the said vehicle only for distribution of the product of his unit to different dealers and the vehicle is not a commercial vehicle and has  never use for any commercial purposes at any point of time .These averment of the affidavit evident of the complainant remain unchallenged /un-rebutted which clearly proved that, the complainant has purchased the alleged vehicle for earning of his livelihood  by way of his self employment as such we are of our opinion that this complaint is  well maintainable under C.P.Act 2019. 
18. It is also proved on affidavit by the complainant that, he had already paid 13 numbers of monthly EMIs @ Rs 12,236 to the financer/OP 3 towards sale price of the said defective vehicle which is subsequently replaced with new one by the op 1& 3 but the Op 1 (one) has charged full consideration price less Rs 1,50,000/- & registration fee only for the new vehicle replaced against the said defective vehicle and  denied to consider the said 13 numbers of EMIs @ Rs 12,236 earlier paid to the financer towards sale price of the said defective vehicle is certainly an act of unfair trade practice on the part of Op No 1 (one) .
19. In the light of above said discussion we are of the considered view that, there is deficiency in service & unfair trade practice on the part of Op No 1 (one) in connivance with the OP 2 & 3 which caused financial burden  & mental agony to the complainant as such he is entitled to be compensated by the O.Ps and there is sufficient cause for presentation of this complainant .
20. Based on the above discussion we are of the opinion that ,the  Op 1(one ) is liable to return back the sale price of the defective vehicle sold to the complainant i.e. said 13 number of  EMIs @ Rs 12,236 i.e. Rs 1,59,068 earlier paid to the  financer/OP 3 with interest @ 9% p.a. from the date sale  i.e. dt.21.09.2020 till its payment  to the complainant  and on receiving of the said amount the complainant shall repay the same to the  Op 3 (three)  towards  repayment of the  loan due against him.    Hence, this complainant is allowed in part against the OPS with the following direction.                                 
6698606.                                      

The O.P 1 is directed to return back the sale price of the defective vehicle sold to the complainant i.e.  13 numbers of EMIs @ Rs 12,236 i.e. Rs 1,59,068 earlier paid by the complainant  to the  financer/OP 3 with interest @ 9% p.a. from the date purchase i.e. dt. 21.09.2020 till its payment to the complainant and on receiving of the said amount the complainant shall repay the same to the  Op 3 (three)  towards  repayment of the  loan due against him. The Op No 1(one) is further directed to pay litigation expenses of Rs.10,000/- to the complainant . This order is to be complied within 45 days from the date of received of this order failing which the Op 1 failing which the Op 1(one)  is  liable to pay  compensation @ Rs.500/- per day to the complainant till compliance  of this order.

        Dictated & corrected by me.

          President

                I agree.

                            Member.                                                   

Pronounced in open Commission today on this day of 2^nd  August, 2023 under the seal and signature of this Commission. The pending application if any is also disposed off accordingly.

Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly.