IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/09/2012
Date of Filing: 16.02.2012. Date of Final Order: 20.05.2015.
Complainant: Chandra Sekhar Das, S/O Late Phanibhusan Das, Vill. Nihallishpara, P.O. Goaljan,
P.S. Berhampore, Dist. Murshidabad.
-Vs-
Opposite Party: 1. Lexican Motors, Berhampore Branch, Prop. Reliance Industrial Consortium
Ltd., NH-34, Balarampur, P.S. Berhampore, Dist. Murshidabad.
2. Tata Motors, Passenger Car Business Unit, Appeejay House, 5th floor,
Block-A, 15, Park Street, Kolkata-16.
Present: Sri Anupam Bhattacharyya ………………….President.
Sri Samaresh Kumar Mitra ……………………..Member.
Smt. Pranati Ali ……….……………….……………. Member
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C.P. Act, 1986 praying for a direction upon the OP Nos. 1 & 2 to replace the said vehicle purchased by the complainant by a new one of self same model and to pass such orders as the Forum deems fit and proper.
The complainant’s case, in brief, is that the complainant purchased one Indica EV-2 LXEIV mate Tata Motors make Tata Motors OP No.1 who is dealer of OP No.2 against an invoice dt. 12.10.2011 for a consolidated sum of Rs.5, 45,908/- including insurance premium and road tax issued by OP No.1. The complainant in pursuant to that advice paid R.5, 18,853/- by draft dt. 29.10.11 drawn on UBI, Gopejan Goaljan Branch in favour of Reliance Industrial Consortium Ltd. with the financial assistance of UBI, Gopejan Goaljan Branch hypothecating the said vehicle as collateral security of s aid loan. The said vehicle was delivered on 29.10.11 by OP No.1. After 22 days of delivery while plying on road the front right-side wheel was burst. The complainant informed OP No1 about the damages and used tyre but denied. During repair of the same it was detected that inside the said Tyre lick was repaired and graftis was used. Also, the said vehicle was examined by mechanic and found that four tyres of the car were used for more than three months. The OP No.1 delivered the used car suppressing the fact of earlier use. For the first time on 22.11.11 the complainant found having gone through the papers of the vehicle that the said car was shown to have been sold on 29.9.11 actually the same was sold to complainant on 29.10.11. The OP fraudulently sold the complainant the used car. The complainant requested the Ops to replace the vehicle several times but no result. Thus, the complainant has filed this complaint. Hence, the instant complaint case.
The written version filed by the OP No.1, in brief, is that the OP No.1 has denied the entire allegation of the complainant as to sale of used car suppressing the fact of earlier use. The complainant deposited a sum of Rs.10,000/- as advance for Booking on 26.09.2011. The Opposite Party informed that they would deliver the Car after receipt of Balance Dues. The complainant took the Quotation for getting Financial Assistance from the Bank. As per system the car was not sold to any other persons. After booking the car was shown to be sold out. The car is not a second hand one. On 29.09.11 the complainant paid the balance price of Rs.5, 18,853/- and got delivery of the c ar. At the time of delivery the car was fresh new one, there was no complain. The complainant got the car registered on 11.11.2011 and also took the Insurance Policy. On 24.12.11 the complainant brought the car to the Opposite Party and reported that there were some defects over the Tyre of the Car. Tata Motors are not the manufacturer of the Tyres. The complainant reported the matter to the Concerned Manufacturer with photographs and after perusing the same they reported that the side wall cut Penetration by an external sharp object. They expressed their inability to the complainant for replacement as there were no manufacturing defects. On 10.01.2012 the complainant got first free service from the OP no.1. Thereafter, from the notice of this Forum he came to know about the allegation of the complainant in detail. Then through on line the Opposite Party came to know that the Car met with a Major Accident and went to Tata Authorized Servicing Centre at Malda on 12.12.2011 where Major Repairs were done in Front Bumber, welding was done, repairs were made and colour was done. Due to such Accident the Car suffered from various problems. There was no inherent defect. The tyre, tube became defective due to such accident. This Opposite Party is not liable to render any replacement of the Car or any parts thereof as due to accident the problem cropped up. Intentionally the complainant suppressed the incident. Hence, the instant written version filed by OP No.1.
The written version filed by the OP No.2, in brief, is that the case is bad for mis-joinder and non-joinder of necessary party. The impugned car delivered to the complainant was not a second hand and used car. Had the vehicle been a second hand one, the same should have been registered in the name of some other person but there is no such registration. The complainant’s car having Registration No. WB-58S-3818 met with an accident and the vehicle was brought to the workshop. Since then the complainant started raising these issues that he was sold an used car. The complainant suppressed this material fact that the vehicle met with an accident. The complainant contacted the OPNo.1 on 26th September, 2011 and booked the Indica EV 2 LX CR4 car by making payment of a sum of Rs. 10,000/- as advance. Unfortunately, there was some delay in receiving the car from Pune Plant and for that the delivery of the car was delayed. A brand new car was delivered to the complainant and on being satisfied the complainant purchased the same. From the job card relied upon by the complainant it appears that as on 2.12.11 the vehicle travelled a distance of Q 8 Km only. The complainant is not a customer as defined u/s 2(1)(d) of the C.P. Act, being the impugned car has been used for commercial purpose but not for his livelihood. The said vehicle was delivered after pre-delivery inspection by the dealer. The warranty shall apply if the vehicle is repaired by any other person other than the authorized person. Admittedly, the impugned car is hypothecated to UBI, Goaljan Branch but the said branch is not a party. There is no deficiency on the part of this OP and for that this case is liable to be dismissed. Hence, the instant written version filed by the OP No.2.
Considering the pleadings the following points have been framed for disposal of the case.
- Whether the case is maintainable in law and facts ?
- Whether the complainant is a consumer as per provisions of C.P.Act,1986 or not?
- Whether there is any cause of action to file the present case?
- Whether the case is barred by law of limitation?
- Whether the case is barred by principle of waiver, estoppels and acquiescence?
- Whether the case is bad for non-joinder of necessary party.
- Whether the complainant is entitled to get any award as prayed for?
- To what other relief/reliefs the complainant is entitled to?
Point No. 1 .
The point No.1 is whether the case is maintainable in law and fact.
In this regard The Ld. lawyer for the OP No.2 has advanced argument as well as mentioned in his written argument that admittedly the impugned Tata Indica car being purchased by the complainant by way of financial assistance and the same being hypothecated to UBI , Goaljan Branch the complainant is not the owner but only a beneficiary and for that the complainant is not the consumer and has no locus standi to file the complainant and for that the complaint ought to dismissed.
In this regard we find that the settled principle is that under C.P act the principle of privity of contract is not applicable and for that beneficiary can file complaint and for that he has sufficient locus standi to file this complaint. Accordingly, this complaint is maintainable and as such this point be disposed of in favour of the complainant.
Hence, this point is disposed of in favour of the complainant.
Point No. 2.
This point No.2 is whether the complainant is a consumer as per definition under C.P. Act, 1986.
The Ld. lawyer for the OP No.2 has advanced argument as well as mentioned in his written argument referring two reported decisions in (1977) I SCC-131 in Cheema Engg Services-vs.-Rajan Singh and in 1995 II CPJ 1(SC) that the complainant is not a consumer being the veh9icle in question has been used for commercial activities.
From the complaint it appears that the complainant purchased the car on loan from UBI, Gopejan Goaljan Branch hypothecating the vehicle as collateral security of said loan.
The OP No.2 has filed Xerox copies of some relevant documents in support of his case.
From the registration certificate filed by OpNo.2 it appears that the registration of the vehicle of the complainant is WB 58S 3818, registration date the Nov. 2011.
In this registration certificate there is nothing showing that the vehicle was commercial one.
Also, there is no iota of evidence from the side of the Ops that the impugned vehicle was commercial vehicle and also the same was used for commercial purpose.
It is true that in this complaint there is averment that the impugned vehicle was commercial vehicle but the same was used for his livelihood as self-employment.
But, for absence of any evidence from the side of the Ops as to commercial vehicle this Forum has no other alternative but to conclude that the impugned vehicle is not a commercial vehicle and the same was not used for commercial purpose and for that there is no bar to consider the complainant as a consumer under C.P. Act and as such this point No.2 is disposed of in favour of the complainant.
Point Nos. 3 to 5.
All these points are taken up together for the sake of convenience.
During hearing argument the Ld. Lawyer for the respective OP Nos. 1 & 2 have not raised any objection against these points.
Considering the material on record we do not find anything adverse against these points and as such all these points be disposed of in favour of the complainant.
Hence, all these points are disposed of in favour of the complainant.
Point No. 6.
This point is whether the instant case is bad for non-joinder of necessary parties.
Admittedly, in this case the complainant purchased a Tata India Car with the financial assistance from UBI, Goaljan Branch and hypothecated the said purchased care with the UBI, Goaljan Branch.
But , the complainant has not impleaded the said UBI, Goaljan Branch in this case.
The complainant’s case is that the OP No.1 sold used car to the complainant and prays for replacement by new car.
The complainant has not prayed for any relief from the Financer UBI, Goaljan Branch.
On the other hand the ld. lawyer for the OP has advanced argument as well as mentioned in this written argument that in this case the complainant has not made his Financer UBI, Goaljan Branch as party to this case.
Considering the above facts and circumstances we find that in this particular case though the complainant purchase the impugned Tata Indica car taking loan from UBI, Goaljan Branch and hypothecating the same to that Bank but the complainant has not prayed for any relief from UBI, Goaljan Branch and for another in this particular case UBI, Goaljan is not a necessary party.
Accordingly, this case is not bad for non-jounder of necessary party.
Hence, this point is disposed of in favour of the complainant.
Point Nos. 7 & 8.
The instant case is for replacement by a new car.
The complainant’s main case is that OP No.1 has fraudulently sold the used car and after 22 days while the said car was plying on road the front right side wheel was burst out and during repair. The complainant informed OP No1 about the damages and used tyre but denied. During repair of the same it was detected that inside the said Tyre lick was repaired and grattis was used. Also, the said vehicle was examined by mechanic and found that four tyres of the car were used for more than three months.
On the other hand, OP No.1 has categorically denied the complaint’s main case as to sale of used car. The complainant booked the impugned Tata Indica car on 26.09.2011 by depositing Rs.10,000/ and fresh car was delivered to the complainant by OP No.1 on 29.9.2011 on payment of outstanding dues taking loan and hypothecating the car with OP No.2 Bank . As per system after booking the car was shown to be sold and after payment new fresh car was delivered to the complaint on 29.9.11 without any complaint. Regarding defect of tyres was reported after the side wall cut penetration by an external sharp object, Due to major accident the impugned car suffered from various problems but there was no inherent defect and for that the complaint is not entitled to get replacement of the car.
Both the complainant and OP no.1 have filed the Xerox copies of relevant documents in support of their respective cases.
Having gone through the relevant documents filed by both sides we find that the complainant booked the impugned car on 26.9.11 by depositing cash of Rs.10,000/- and the same was delivered on 29.10.11 after payment of Rs.5,18,853/- by cheque.
Further, it appears that the impugned car was registered on 11.11.2011 in the name of the complainant.
From the two receipts dt. 26.9.11 and 29.10.11 filed by the OP no.1 and the receipt dt. 26.9.11 of OP No.1 for Rs.10, 000/- and delivery memo of Op No.1 dt. 29.10.11 filed by the complainant it is an admitted fact that the complainant booked the impugned car on 26.09.11 and got delivery of the car on 29.10.11.
After two months of booking the complainant paid the entire amount of the car on 29.10.11 and on the same day the complainant got delivery of the car.
The complainant got his car registered on 11.11.2011.
The complainant has filed the registration certificate dt. 11.11.11 in his name in respect of the impugned car bearing registration No. WB 58S-3818 and the Tax Token.
Thus, it is admitted that the impugned car was registered in the name of the complainant on 29.10.11.
The complainant’s case is that the OP No. 1 delivered used car.
But, the complainant has not adduced any document showing registration of this car in the name of any other persons.
The complainant’s case is that the OP No.1 sold the used car to the complainant.
Thus, the complainant is to prove that previously the impugned car was used card before delivery of the same to the complainant.
The complainant has failed to adduce any cogent evidence to that effect.
On the other hand, OP’s case is that the impugned car met with a major accident and taking the advantage of accident the complainant is claiming the car to be an used car and claiming for replacement.
Admittedly, after 22 days of delivery as per complaint’s case the front right side wheel was burst and then found the wheels were damaged and used and then informed the OP who denied.
The complainant’s case is that after that incident of bursting out front right side wheel of the car, the complaint noticed that the wheels were damaged and those four wheels were damaged and those four wheels were examined by mechanic and found that all the four tyes of the wheels found to be used for ,more than three months.
But, the complainant has not adduced any documents to that effect.
On the other hand the OP No.1 has adduced a document as to the report of expert regarding to complained car tyre wherefrom it appears that side wall cut penetration by any external sharp object. Also, advised that they regretted very much their inability to offer the complaint any replacement as the failure was not due to any manufacturing.
Relying upon these documents we can safely conclude that there was no manufacturing defect in the impugned car.
The complainant has adduced several documents which have been marked as Ext 1 to 15/1.
The Ext 4 and Ext 4/1 are same documents. The Ext 4 is the Xerox copy of the original card which Ext 4/1 . These two Exhibits are the job card for the second car vice of the impugned car having No. WB 58S-3818 whose current Kms was 4329 and attended on 26th April, 2012 and Ext 4 is the Job card for first free service of this car WB-58S-3818 attended on 2nd December, 2011 whose current Kms was 648.
Admittedly, the impugned car was delivered to the complainant on 29.10.11, Ext 7 the delivery memo.
It is also admitted that first free service Exb 9 was given on 2nd December, 2011 when current kms was 648 where the car was delivered on 29.10.11.
Where, the job card for second Free Service, Ext 4/1 shows that second free service was provided to the impugned Car No. WB-58S-3818 on 26th April, 2012 and current Kms was shown as 4329.
Further, from all the Job Cards, Ext 4 d Ext 9 it appears that the impugned car was sold on 29th September, 2011.
In this regard from the receipt dt. 26.09.11, Ext 5 it appears that the complainant booked one Tata Indica LX EV car which is the impugned car and the same was delivered on 29.10.11 reveals from the delivery memo Ext.7.
The complainant has also filed two other Tax Invoices Ext 1 and Ext 3 for third free service on 13.10.12 and paid service on 25.5.2012.
From the above discussions it is clear that there was no manufacturing defect in the impugned car and three free services and one paid service have already provided.
Regarding the car sold one month before actual delivery this clear that the same was shown as sold after booking as per system of the company.
Considering the mileage covered for 648 K. for 35 days reveals from the Job Car Ext 4/1 the first free service on 2.12.11 after delivery on 29.10.2011 there is no scope that the impugned car was an used car.
Ld. lawyer for the OP has referred to a decision reported in I(2010) CPJ 19(NC) Dr. K. Kumar Advisor(engineering) Maruti Udyog Ltd. Vs. Dr. A. s. Narayana Rao & Anr where the vehicle purchased in an auction on “as is where is basis” and the vehicle ran smoothly for 16 months which indicates absence of manufacturing defect and expert evidence in support of defect in vehicle not produced and it has been held that relief granted by State Commission beyond pleadings of parties and order was set aside.
In this case, the complainant has not adduced any expert evidence showing any manufacturing defect.
Considering the above discussion we can safely conclude that the complainant has hopelessly failed to prove that there was any manufacturing defect in the impugned car as well as the car was an used car.
On the basis of the discussion those points are disposed of against the complainant.
Also considering all the decisions of the points together, we find that we have no other alternative but to conclude that the complaint is liable to be dismissed.
Hence,
Ordered
that the Consumer Complaint No. 09/2012 be and the same is dismissed on contest. There will be no order as to cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post with A/D to the concerned parties as per rules, for information and necessary action.
Member Member President
District Consumer Disputes District Consumer Disputes District Consumer Disputes
Redressal Forum. Redressal Forum. Redressal Forum.
Murshidabad. Murshidabad. Murshidabad.
