Presented by Sri B.K. Pati, Member,<br /> The case pertains to deficiency in service as envisaged under the provision of Consumer Protection Act and its brief fact is as follows:-<br /> The Complainant, an educated unemployed in order to earn his livelihood, purchased a Mahindra Tourister-25 B2-11 vehicle on Dt.01/05/2005 for a sum of Rs.5,68,000/-(Rupees five lac sixty eight thousand)only being financed by Opposite Party No.3(three) to be paid at the rate of Rs.17,400/-(Rupees seventeen thousand four hundred)only as equal monthly installment. The vehicle was delivered to the Complainant by Opposite Party No.4(four), the local dealer. The vehicle showed different mechanical trouble from the initial date of plying and the Opposite Party No.4(four) attended to the problems by receiving payments even during the warranty period denying free service and repairs. In the meantime the Opposite Party company shut down its local dealer and service centre for which the Complainant was deprived of getting free and paid local service to run the vehicle which amounts to deficiency in service on the part of the Opposite Parties company.<br /> <br /> In May 2007, the vehicle gave same trouble in smooth running and on the advice of Opposite Party No.2(two), the Complainant approached the dealer at Sambalpur for removing the same which after scanning the vehicle pointed out that, there was trouble in the gear box but it refused to repair the defect without specific direction from the Company as the vehicle did not belong to its local dealership area. The Complainant approached the Opposite Party No.1(one) and No.2(two) time and again both over telephone and in writing to sort out the problem of the vehicle, but in vain. The Complainant could not get his vehicle repaired out side as necessary parts and company trained skilled mechanic were not available. The Complainant has not been able to pay the monthly installments from the day the vehicle could not ply as it could not be repaired. The Complainant informed the Opposite Party No.3(three) in writing on the fate of the vehicle, but in spite of being aware of the fact, the Opposite Party No.3(three) was taking active steps to take forcible possession of the vehicle which is illegal. The Complainant contends that in the aforesaid circumstance the Opposite Party No.1(one) and No.2(two) have neglected in rendering service to the Complainant which amounts to deficiency in service and they are liable to compensate the complaint for his monetary loss and mental agony.<br /> <br /> The Opposite Party No.3(three) also needs to be restrained from causing any overt act relating to the vehicle.<br /> The Opposite Parties have not responded to the pleader notice served on them placing his grievances, even though they received the notice.<br /> <br /> The Complainant claims Rs.2,85,000/-(Rupees two lac eighty five thousand)only from Opposite Party No.1(one) and No.2(two) for the loss he has sustained due to their negligence and deficiency in service and direct the Opposite Party No.3(three) not to take over possession of the vehicle or to cause any overt act relating to the vehicle in future for the ends of justice.<br /> <br /> The Opposite Party No.1(one) and No.2(two), in their joint version question the maintainability of the complaint as the Complainant uses the vehicle for earning profit under commercial purpose and is not a consumer Under Section 2(d)(1) of Consumer Protection Act-1986. The Opposite Party No.1(one) and No.2(two) have not directly entered into any contract with the Complainant and they are not proper Parties. The Complainant has failed to set up any allegation in proving deficient warranty service after the sale of the vehicle, and as such there being no cause of action against them. Besides the transaction between these Opposite Parties and Akash Jyoti Motors are on principal to principal basis, the latter not being an agent of the Opposite Party No.1(one) and No.2(two) for any purpose.<br /> <br /> The vehicle manufactured by the Opposite Party No.1(one) and No.2(two) are purchased by Akash Jyoti Motors to release the same to its own customers. The Akash Jyoti motors shut down the show room at Bargarh due to poor business transaction and communicated to all their bona fide customers to take service from the Sambalpur showroom/workshop if any problem arises during he warranty period. The Complainant and other customers are not barred to take proper service from Akash Jyoti Motors, Sambalpur. The Opposite Party No.1(one) and No.2(two) deny having received any written or telephone communication from the Complainant about the trouble in the vehicle in May-2007, which is also after the expiry of the warranty period. These Opposite Parties contend that, they received communication from the Complainant only before ten days of receipt of the notice of this Forum. The Opposite Party No.1(one) and No.2(two) are not liable for any thing since there is no complaint from the Complainant within the warranty period i.e. twelve months from the date of purchase of the vehicle. The transaction is between the Complainant and Opposite Party No.3(three) and these Opposite Parties have nothing to comment over the same. The Opposite Party No.1(one) and No.2(two) deny any deficiency in service on their part towards the Complainant and pray for dismissal of the complaint with heavy cost.<br /> <br /> The Opposite Party No.3(three) in its version denies all allegations made against it by the Complainant and contends that the complaint is not maintainable due to the fact that the Complainant has availed financial assistance from this Opposite Party through an agreement and therefore he is not a consumer under the provisions of Consumer Protection Act-1986 to seek redressal in this Forum to remedy his grievance. Besides the Complaint suffers from mis-joinder and non-joinder of necessary party. This Opposite Party is in no way connected with the Opposite Party No.2(two) and No.1(one). The Complainant neglected to repay the installments and this Opposite Party has served demand on him for clearance of the loan amount. The Complainant has not hired the services of this Opposite Party nor this Opposite Party has under taken to do any service towards the Complainant, hence there is no question of deficiency of service to bring about this complaint. As per the loan agreement the matter would have been brought under Arbitration. The Complainant suppressed material fact and obtained the interim order restraining this Opposite Party to take repossession of the vehicle. According to the disclaimer clause in the Loan Agreement the manufacturer/dealer/supplier of the product for which loan transaction is made shall not be deemed to be agent of Lender and the Lender shall not be liable for any statement or representation made by such manufacturer/dealer/supplier. This Opposite Party contends that there is no deficiency in service on its part towards the Complainant and it has been impleaded by the Complainant to escape the payment of loan installment.<br /> <br /> It prays for dismissal of the complaint.<br /> <br /> The Opposite Party No.4(four) in its version mentioned that the Complaint is not maintainable as the Complainant has not sought any relief against him. It denies that, it had received different charges from the Complainant for repair of the vehicle during warranty period. The case suffers from non-joinder of necessary party such as the Sambalpur dealer of Opposite Party Company and also the vehicle being a commercial one, the Complainant is not a consumer with in the meaning of Consumer Protection Act-1986. The Opposite Party No.4(four) prays for dismissal of the case against it.<br /> <br /> Perused the complaint, the version of the Opposite Parties along with the copies of documents filed and find as follows:-<br /> <br /> The Opposite Parties question the maintainability of the case on the ground of its being used for commercial purposes. The Complainant is an unemployed and uses the vehicle for self employment and as a means to earn his livelihood. Hence the Complaint is maintainable as per the exception provided Under Section 2(d) of the Consumer Protection Act while defining 'Service'. The Opposite Party No.1(one) and No.2(two) being manufacturer and seller of the vehicle in question, are responsible for ensuring service and maintainace to any purchaser of their vehicle whether they have sold the same directly or through their dealer.<br /> <br /> Hence they are necessary parties pertaining to any dispute relating to the same. The role of the Opposite Party No.4(four) in this sphere is rather limited. The Opposite Party No.1(one) and No.2(two) contend that, there is no complaint from the Complainant within the warranty period. But the case of the Complainant relates to after sale service after the warranty period and the vehicle is to be repaired by trained technician using genuine spare parts of the company. The Opposite Party No.3(three) is the financer which helps promote the sale of the vehicles in the shape of facilitating loan to prospective customers of the vehicle and constitutes a part of the Opposite Party No.1(one) and No.2(two). The Complaint is also maintainable again the Opposite Party No.3(three) for its having rendered financial service to the Complainant, hence being the Financing Agency. Besides the Complainant is not bound to go for arbitration and has the option to seek redressal in the Forum.<br /> <br /> The Complainant seek no relief for Opposite Party No.4(four).<br /> <br /> A scanning of the facts and circumstances of the case leads to the conclusion that the Opposite Party No.1(one), No.2(two) and No.3(three) by not ensuring after sale service for repair and maintenance of the vehicle enabling its smooth running, have committed deficiency of service towards the Complainant.<br /> <br /> The Complainant, on its part has not come forward with any satisfactory evidence to prove the financial loss claimed by him.<br /> <br /> In the result, the Opposite Party No.1(one), No.2(two) and No.3(three) are directed jointly and severally to ensure after sale repair and maintenance service to the vehicle in question by their authorized service centre and pay to the Complainant Rs.20,000/-(Rupees twenty thousand)only towards the harassment caused to him for the above negligent act with in thirty day hence failing of which 18%(eighteen percent) interest per annum shall be charged on the awarded amount till the date of payment.<br /> <br /> Complainant allowed accordingly.<br />