Presented by Sri G. S. Pradhan, President.<br /> The case pertains to deficiency in service as envisaged under the Consumer Protection Act-1986 and its brief fact is as follows:-<br /> <br /> The Complainant being attracted with advertisement circulating in several news paper and media has purchased a MAX Fistra Vehicle bearing Regd No. OR-15-J-6644 from the authorized dealer Opposite Party No.2(two) of Opposite Party No.1(one)'s company in the month of January-2006 under financed of the Opposite Party No.3(three) on payment of margin money of Rs. 88,820/-(Rupees eighty eight thousand eight hundred twenty)only. The Complainant was using the vehicle to earn his livelihood by self employment. After few days of running of the said vehicle, the gear box of the vehicle started creating trouble for which he made complaint to the Opposite Party No.2(two) for time and again which is still unrepairable in spite of all type of repairing made by the service engineer, as a result of which the vehicle is not in a condition to ply on the road. It is alleged that, due to said defect of the vehicle, the Complainant sustained heavy financial loss and suffered mental agony and physical pain and he was making repayment in spite of financial constrained mental agony and distressed condition by arranging money from his near and dear by facing much difficulty.<br /> <br /> Alleging deficiency in service on the part of the Opposite Parties, the Complainant filed this case claiming not to make any pressure for payment of the loan amount until replacement of the alleged vehicle, to replace the vehicle by a new one and Rs.10,00,000/-(Rupees ten lac)only compensation for mental agony besides litigation cost.<br /> <br /> In its version the Opposite Party No.1(one) denied to have cause any deficiency in service and any manufacturing defect in the MAX Fistra Vehicle purchase by the Complainant. It challenges the maintainability of the case as per Sec. 2(d)(1) of Consumer Protection Act-1986 as the Complainant can not be held to be a consumer. Further challenges the maintainability of this disputes under the territorial jurisdiction of the Forum.<br /> <br /> The Opposite Party No.1(one) contend that, the Opposite Party No.2(two) has taken utmost care to attend the complaint of the Complainant as and when he has approached the Opposite Party No.2(two) and the Complainant has left the work shop with complete satisfaction. The gear box of the vehicle had been rectified by the Opposite Party No.2(two) and Complainant had given a satisfaction note to that extent. The Complainant had last approached the Opposite Party No.2(two) on Dt.10/06/2009, while his vehicle had plied more than 1,56,008(one lac fifty six thousand eight) kilometers and had no complain towards gear box. The Opposite Party No.1(one) alleged that if the vehicle had problems in gear box then how the Complainant could have been plied the vehicle up to 1,56,008(one lac sixty six thousand eight) kilometers. The Opposite Party No.1(one) contends that the Complainant has approached this Hon'ble Forum after almost two and half years and after playing vehicle for more than 1,56,008(one lac fifty six thousand eight) kilometers only to avoid payment of installment of the finance company.<br /> <br /> The Opposite Party No.1(one) contends that all the allegation made by the Complainant are false baseless, misconceived and after thought and to satisfy his ulterior motive. The Opposite Party No.1(one) prays for dismissal of the case with heavy cost.<br /> <br /> The Opposite Party No.2(two) denies all the allegation made by the Complainant and also deny to have committed any deficiency in service towards the Complainant. The Opposite Party No.2(two) challenges the maintainability of this case being the complaint is not a consumer Under Section 2(d) of Consumer Protection Act-1986.<br /> <br /> The Opposite Party No.2(two) contends that as per the Job Card, the petitioner complained about Gear Box on Dt.20/06/2006 for the first time and never before. But when the gear oil was changed the vehicle ran perfectly and the Complainant being satisfied, put his signature on it as a mark of satisfaction. As per Job Card Dt.14/06/2007, the Complainant made complaint regarding the defect of the 5th gear, but when the Clutch plate was changed, the vehicle run smoothly and being satisfied with this the petitioner has put his signature on the satisfaction note on the Job Card. Further the Opposite Party No.2(two) contends that the Job Card of different dates shows that the vehicle was running on an average of 250 to 300 kilometers per day, which is not practicable with a vehicle having manufacturing defects in the Gear Box.<br /> <br /> The Opposite Party No.2(two) alleges that the Complainant has availed loan from the Opposite Party No.3(three) and to avoid payment of installment, the Complainant filed a false case against the Opposite Parties.<br /> <br /> The Opposite Party No.2(two) prays for dismissal of the case.<br /> <br /> The Opposite Party No.3(three) in its version denies to have cause any deficiency in providing service to the Complainant and also denied all other allegation made against it. The Complainant has purchased the vehicle bearing Regd. No. OR-J-6644 under financed from Opposite Party No.3(three) is not disputed. This Opposite Party is being dealing with only finance business which is foreign to the business of the other Opposite Parties and as such it has no nexus with Opposite Party No.1(one) and Opposite Party No.2(two).<br /> <br /> It is submitted that, as per the loan agreement bearing No. 406810 Dt. 23/01/2006 executed by the Parties, both Parties agreed to refer all disputes and difference if any to Arbitration and hence the claim against this Opposite Party is not maintainable before this Consumer Forum. Further it is submitted that as per the disclaimer clause in the loan agreement executed by the Parties expressly classified and declared that any manufacturer/dealer/supplier of the product by whom the loan transaction may have introduced, negotiated or conducted shall not be deem to be agent of the lender and the lender shall not be liable for any representation or statement made by such manufacture/dealer/supplier to the borrower.<br /> <br /> The Opposite Party No.3(three) contends that sine the Complainant availed with financial accommodation, he has deliberately neglect to repay the installment dues as per schedule of the said agreement and the Opposite Party has demanded before him for payment of the installment amount regularly. So the Complainant in order to avoid the said payment with ulterior motive filed this present case against this Opposite Party, who is not answerable for any defect in the alleged vehicle.<br /> <br /> The Opposite Party No.3(three) prays for dismissal of the case with cost.<br /> <br /> Perused the complaint petition, Opposite Party's version as well as the copy of documents filed by the Parties in respective of their case and find as follows:-<br /> <br /> The Opposite Parties in their version challenges the maintainability of this case and stated that, the Complainant has purchased the vehicle for commercial purposes and as per the Arbitration clause in the loan agreement, the Consumer Forum has got not jurisdiction to try the same. The Opposite Party has not filed any evidence to prove that, the Complainant has purchased the vehicle for commercial purpose and not for earning his livelihood by self employment. The Complainant has specifically pleaded that he has purchased the vehicle for earning his livelihood by self employment. So the Complainant is a consumer under the Consumer Protection Act-1986 and complaint is maintainable. Further existence of Arbitration clause in the loan Agreement can not bar a jurisdiction to entertain a complaint under Consumer Protection Act-1986.<br /> <br /> The Complainant has purchase a Max Fistra Vehicle bearing Regd. No. OR-15-J-6644 on Dt.16/01/2006 from the Opposite Party No.2(two), the authorized dealer of Opposite Party No.1(one) under finance from Opposite Party No.3(three) is not disputed. The Complainant alleges that after few days of purchase, the said vehicle faced may difficulties in plying due to problem in gear box and other parts. The Opposite Parties did not take any steps to rectify, the same as such the Complainant could not ply the vehicle and sustained heavy financial loss.<br /> <br /> The allegations against a party can't be prove on a mere pleading of a party. The allegations must be prove by adducing documentary evidence or in any other form. No expert or any other evidence is adduced by the Complainant to establish that the Gear Box of the vehicle is defective and has got a manufacturing defect. Further the Complainant has not filed any off road of the vehicle from any R.T.O. to prove that due to defective in the gear box he could not ply the vehicle thereby he sustained financial loss. The Complainant has not been able to established a case of deficiency in service against the Opposite Parties.<br /> <br /> In the result the complaint is dismissed.<br /> Complaint disposed of accordingly.<br />