DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KANDHAMAL, PHULBANI
C.C.NO.30 OF 2017
Present: Sri Rabindranath Mishra - President.
Miss Sudhiralaxmi Pattanaik - Member .
Dharmendra Jena, aged - 40 years
S/O: Bishnu Charan Jena,Managing Director
M/S- Maa Barala Devi Hi-Tech Engineers & Infrastructures Pvt. Ltd.
Nandikhandisahi, phulbani, Kandhamal, Odisha. ……………………….. Complainant.
Versus.
1. Managing Director
M/S- Ashok Leyland Ltd.No.1, Sardar Patel Road,
Guindy ,Chenna- 600092, Tamilnadu India,
PH- 044-22206000, Fax-044-22206001
(Through its Managing Director)
2. Ashutosh Chatarjee,
ASM & Malaya Kumar Panda, S.O
M/S- Ashok Leyland Ltd. Plot No-5278528, NH-5
Janla, Khurdha, Odisha- 752054
(Through its Regional Director)
3. Dealer /Proprietor/ MD
Orissa Diesel Engines Pvt. Ltd.
(A Dealer of M/S- Ashok Leyland Ltd)A/5, Mancheswar
Industrial Estate, Bhubaneswar -751010
(Through its Director)
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4. M/S Cholamandalam
M.S General Insurance Co. Ltd
Regd & Head Office- Dare house, 2nd Floor
No.2, NSC Bose Road, Chennai- 600001
5. M/S Cholamandalam Investment and Finance Company Ltd.,
At/PO/Dist- Nayagarh (through its Area Director)
6. Regional Transport Office, BBSR-11,
At/PO: Bhubaneswar, Khurda.
7. Branch Manager,
M/S Cholamandalam Investment and finance Co. Ltd
At: Ananda Bazar Near united bank, Phulbani, Kandhamal …………………………….. OPP. Parties.
For the Complainant: Sri Ajit Kumar Pattanaik, Advocate and his associates.
For the OPP. Parties:For O.P No.1 & 2: Sri Aswini Kumar Sahoo ,Advocate and his associates
For O.P No.4: Sri Raghunath Meher, Advocate, Boudh
For O.P No.5 & 7: Sri Naresh Kumar padhy, Advocate, Phulbani
Date of Order: 27-04-2018
O R D E R
The case of the Complainant in brief is that he had purchased one Ashok Leyland 3718 Til model Truck bearing chassis No. MB1WADFDBGREN7461 and Engine No.GEHZ406479 on 28-11-2016 for Rs. 26,27,873,36 paise only from the O.P No.3 , the dealer of M/S Ashok Leland Limited BBSR. The Complainant was unemployed and he had purchased this truck in order to maintain his livelihood. The said vehicle was temporally registered before the Registered Authority, Bhubaneswar-11, the O.P No.6 on 29-11-2016 which was valid till 28-12-2016 vide registration marked OD-33T-1612117. The said vehicle was already insured on 26-11-2016 by the Chola M.S General Insurance Company Limited , the O.P No.4 and the Insurance coverage was from 26-11-2016 to 25-11-2017 vide Certificate No 3379/01567762/000/00. On 07-12-2016 while the said truck was unloading, first trip Fly-ash materials on trial basis in the premises of the Complainant, the hydraulic Zac of the said vehicle was collapsed and bent at middle point and subsequently the whole vehicle turned toppled to right side as a result of which the body of the truck was damaged. Then the Complainant intimated the fact through Toll free number to the surveyor of Berhampur who was deputed to the spot on 09-12-2016. After inspection the surveyor instructed to the Complainant to lift the vehicle to
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the Authorized service station for further survey. On 12-12-2016 the Complainant shifted the vehicle by hiring hydra Machine from neighboring District of Nayagargh to lift the vehicle from Phulbani to Bhubaneswar at a cost of Rs. 22,000/- only and the transportation charges was Rs.40,000/- only including labour charge and other expenses. The final survey was conducted on 13-12-2016 by the O.P No.3 at Bhubaneswar. On 17-12-2016 the Insurance Company, the O.P No.4 sent a letter to the Complainant that the Tipping Cylinder Assy was not covered under the terms and conditions of the Insurance policy. The Complainant intimated the Senior Manager of O.P No.3 and the O.P No.2 about his grievance but both of them instructed to the Complainant to deposit an amount of Rs.10,00,000/-before dismentling of the vehicle. So the Complainant was harassed by the O.ps since last 8 months and he was running with the O.Ps to address his grievance and for settlement of his claim. The vehicle was totally damaged and unable to run over the road. The norms and conditions of the policy are not reflected in the policy. The vehicle was damaged due to poor quality of materials used in the vehicle by the manufacturer, the O.P No.1. Hence, the O.Ps committed deficiency in service and unfair trade practice and caused mental agony of the Complainant. The Complainant approached the O.P No.1 to 4 physically and over phone on several occasion and they assured him to short out the dispute as soon as possible but they remained silent and they refused to repair the vehicle. The Complainant sent a legal notice to the O.ps but no action was taken by the O.No.1 to 5. Hence, this complaint is filed against the O.Ps for settlement of the claim with a prayer for a direction to O.P No.1 to 3 jointly and severally to hand over the new Layland of another model vehicle or repaired the damaged parts and handover the same to the Complainant . The O.P No.4 may be directed to pay in total Rs. 19,00,000/-to the Complainant towards repairing, Business loss, mental agony and litigation cost. The R.T.O, Bhubaneswar , the O.P No.6 be directed for permanent registration of the vehicle without penalty and the O.P No.5 be directed not to take any coercive action till final disposal of the case and any other relief as deemed fit in the ends of justice .
The O.P No.3 and 6 were set exparte in this case as they failed to attend this Forum in spite of getting Regd notice to appear.
The case of O.P No.1 & 2 as per their joint version is that because of fault and mishandling by the driver of the truck, it met with an accident which was reported to the dealer of the vehicle, O.P No.3 on 14-12-2016 and on the next day, service Engineer of the company visited the spot and submitted a report regarding such accident due to the mishandling and fault of the driver of the said vehicle. As per inspection report of the service engineer, the vehicle in question was overloaded and the driver of the truck started unloading the fly ash without unlocking the tail gate lock due to which the body was gone up with fully loaded and the center of gravity was shifted upwards and further the driver of the vehicle forward to create thrust on load body to unload the material which resulted in disturbance in the balance of the loaded body . So, the hydraulic Jack which was collapsed and the vehicle was damaged. It can not be said that there was any manufacturing defect in the vehicle. Since it is a case of accident question of manufacturing defect does not arise. The Complainant himself did not allow for repair of his vehicle in spite of all efforts by the Company and
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made all false allegations. Since it is a case of accident the benefit of warranty coverage is not applicable to the Complainant and as such the complaint petition filed by the Complainant may be dismissed with heavy cost.
The further case of the O.P No. 1 & 2 is that this Forum has got no jurisdiction to entertain the complaint petition. The Complainant is not a consumer as defined under C.P Act 1986 as the vehicle is commercial and the Complainant has got transport business and he is having more than 10 commercial vehicles in his name. The Complainant is the Managing Director of M/S Maa Barala Devi Hi-tech Engineer and infractures Pvt Ltd and having number of truck and cannot say that the present truck is purchased for the purpose of livelihood. Hence, the complaint is liable to be dismissed.
The case of O.P No.4 as per his version is that the Complaint is not maintainable as the Complainant is not a Consumer under section 2 of C.P. Act. The vehicle was purchased by the Complainant from the O.P No.3 on 28-11-2016 as such he is the Consumer of the O.P No.3. That vehicle was purchased by the Complainant on 28-11-2016 but the vehicle was insured by the Insurance Company, the O.P No.4 on 26-11-2016. In this case there must be any manufacturing defect which was not disclosed by the manufacturer of the vehicle. So the O.P No.4 , the Insurance Company is not liable to pay any compensation to the Complainant as there was internal manufacturing defect in the vehicle as the Complainant has admitted that the materials used by the manufacturing unity is defective , unfair and that is poor in quality . The said vehicle was within the Insurance Coverage on the date as alleged on 07-12-2016 but the Insurance Company is not liable to pay any compensation to the complainant as the hydraulic Jack of the vehicle has been damaged due to manufacturing defect. The complainant used this vehicle to bring Fly ash from somewhere and unloading the same in the campus of the Complainant. Hence, the Complainant has violated the policy condition. Hence, the manufacturing company, the O.P No.1,2 & 3 are jointly and severally liable to pay compensation to the Complainant. The Complainant had approached the Insurance Company for payment of repairing of the vehicle. The O.P No.4 had sent several letters to the Complainant through registered post on 03-01-2017, 08-02-2017 and on 06-03-2017 for submission of several documents before the O.P No.4 but the Complainant has failed to comply the same. So, the claim of the Complainant could not be settled. The vehicle had temporary registration number on 07-12-2016 on the date of occurrence and have no permit. The vehicle used for the purpose of commercial and the Complainant violated the terms and conditions of the Insurance policy. The surveyor had inspected the vehicle and assessed that the vehicle can be repair on Rs. 8, 25,980/-. The Complainant has neglected to repair his vehicle in time and he has not taken proper step to settle the claim before O.P No.4.
The further case of the O.P No.4 is that the complaint is filed beyond the limitation period and there is no cause of action against the O.P No.4 for which the complaint is liable to be dismissed due to devoid of merit.
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The case of the O.P No.5 &7 as per their joint version is that the O.P No.5 is a registered non banking Finance company duly incorporated under the companies Act 1956. The Complainant,s Company have number of heavy commercial vehicles and construction equipments and use the vehicle for commercial purpose for earning lump-sum profit. The vehicle has been purchased by him on loan for his private limited company for commercial purpose. So, the Complainant is not a consumer under the purview of C.P Act 1986. The intention of the Complainant is not to pay the dues. The complainant is a defaulter and has deliberately stopped paying the EMIs and thereby breaches the contract. He allegedly filed the vague case as against this O.Ps financer and has taken unjust shelter before this Hon’ble Forum. The Complainant has suppressed the material fact and tried to escape from his contractual liability. The petitioner has to pay a sum of Rs.4,72,800/- towards defaulted arrears as on 11.06.2016 . The insurance is a separate contract between the insurer and insured and this O.P Company as financier has only acted as a facilitator without having any liability and responsibility. So, the Complaint is not maintainable against the O.P No.5 & 7 as per reported decisions given by the Hon’ble National Commission and the Hon’ble Supreme Court of India. Hence, the complaint is liable to be dismissed.
During course of hearing, we have heard the complainant and the learned counsel appearing for the Complainant. We have also heard the learned counsels appearing on behalf of O.P No.1 &2, O.P No.4 and O.P No.5 & 7. During course of hearing the Complainant was examined and the service Engineer of Ashok Layland Company was also examined on behalf of O.P No.1&2. Exits 1 to Exit -14 were marked on the documents filed by the Complainant in support of his case. Exit-A to Exit-F were marked on the documents filed by O.P No.1, 2 & 4. We have gone through the complaint petition, the version filed by the O.Ps separately. We have carefully gone through the affidavits filed by the parties, all the exhibits and other documents filed by both the parties. We have also perused the written arguments submitted by the learned advocates of the Complainant and the O.ps. It is admitted fact that the Complainant had purchased one Ashok Leyland 3718 Til model truck on 28-11-2016 from O.P No.3 which was financed by O.P No.5. It is admitted that the said vehicle was insured under O.P No.4 and the Insurance policy was valid from 26-11-2016, the date of registration to midnight of 25-11-2017. It is also admitted that the temporary registration of the vehicle was issued by the registering authority, Bhubaneswar, the O.P No.6 and the same was valid from 29-11-2016 till 28th December 2016. It is admitted by the parties that the said vehicle was damaged as the hydraulic Zac collapsed at the time of unloading the first trip of fly ash materials on 07-12-2016 in the premises of the complainant.
The O.P No.3 and 6 were set- exparte. The O.P No.3 is the Dealer from whom the vehicle was purchased and the O.P No.6 is the Regional Transport Officer of Bhubaneswar. We find no bonafide reason why the O.P No.3, the dealer was withheld himself to contest this case. However it is admitted by the other Opp. Parties that the vehicle met on accident on 07-12-2016 in the campus of the Complainant. It is also admitted fact that the Complainant had purchased the alleged vehicle on loan from the O.P No.5. As per settled law the vehicle purchased on loan can not be
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said that the vehicle was purchased by the Complainant on commercial purpose. So we are not supporting the allegation of the Opp. Parties that the Complainant is not a consumer under C. P Act. When it is specifically mentioned in the complaint and also in the affidavit that the Complainant was unemployed and he has purchased the truck in order to maintain his livelihood.
The main allegation of the Complainant and as well as the O.P No.4, the Insurance Company is that there was manufacturing defect with the vehicle. But there is no clear evidence regarding the manufacturing defect for which this part of allegation is not clearly established. In absence of expert opinion or technical report it can not be said that there was manufacturing defect with the said vehicle. The service Engineer of O.P No.1 & 2 stated in his affidavit that the vehicle has no manufacturing defect and no inferior quality material used in the vehicle.
As it is an accident, the liabilities of the O.P No.4, the Insurance Company can not be ignored. The Complainant claimed the O.P.No.4 to bear all the expenses towards repairing of the vehicle and he also claimed total Rs. 19, 00,000/- from him towards financial loss, mental agony and litigation cost.
It is admitted by the O.P No.4 that the vehicle was insured by him and the vehicle was within the Insurance coverage on 07-12-2016, the date of accident. It is also admitted by O.P No.4 that the Complainant had approached the Insurance Company for payment of repairing cost of the vehicle. It is also admitted by him that the surveyor had inspected the vehicle and assessed that the vehicle can be repaired on Rs. 8,25,980/- but the Complainant has not taken proper steps for settlement of his claim. So, in the above circumstances, the Complainant is entitled to get his claim amount from the O.P No.4, the Insurance Company.
During course of argument it is submitted by the learned counsel of O.P No.4 that the vehicle can be repaired at Rs.8,25,980/- under Exit-F, the Report dated 15-12-2016 of the surveyor. It is also submitted by him that the Complainant has neglected to repair his vehicle in time for which the Insurance Company is not liable to pay any compensation to the Complainant. On verification of the documents it is seen that the vehicle had been insured for Rs.28,58,450/- as per Exit-2. The first Estimate towards the repair of the vehicle as on 17-12-2016 was Rs.15,21,868/- as per Exit-6 given by O.PNo.3, the dealer of the vehicle . The final estimate towards repair of the vehicle was given by the O.P No.3, the dealer on 14-02-2017 to the tune of Rs. 16,25,793/- as per Exit-8 with remarks that the estimate value can be changed after dismentle of the body. The estimate includes cost of total Spare parts and labour charges.
The vehicle had been insured just 10 days prior to the accident. So the deduction of depreciation is not justified in this case. In the said situation the loss assessed by the surveyor of the Insurance Company had been grossly under- valued. As the vehicle could have been repaired, the claim should be settled for an amount of Rs. 16,25,793/- Hence the Complainant filed by the Complainant is allowed on contest against O.P No.1,2,4,5 & 7 and exparte against O.P No.3 and 6. Accordingly the O.P No.4, the Insurance Company is directed to pay Rs.16,25,793/- along with interest
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@ 8% per annum from the date of filing the complaint i.e 01-08-2017 till the date of payment to the Complainant within 30 days from the date of receipt the copy of this order.
The O.P No.3 , the dealer of the vehicle should co-operate the Complainant and to repair the vehicle as soon as possible without demanding any detain charge of the vehicle .It is claimed by the Complainant against O.P No.5 that he should not take any coercive action against the Complainant for which an interim order was passed by us on 21.08.2017 against O.P No.5. The said order is here by vacated. But it is alleged by the Complainant that the O.P No.5 being the financer of the vehicle demanded 48% interest per annum on the loan amount. In reply the O.P No.5 resisted the allegation. But Exit-14 is a letter given by O.P No.5 to the Complainant and to his wife wherein it is stated that as per agreement the loan should be repaid with 48% annum interest in 61 installments. Though the financer is at liberty to collect his installment amounts from the Complainant but in the above circumstances he is directed not to take any coercive action against the Complainant till the final repairment of the vehicle as the O.P No.5 is not coming to the Forum in clean hands.
The O.P No.1, 2, 3 and 5 are jointly and severally directed to co-operate the Complainant till full repairment of the vehicle as the vehicle is under the period of warrantee.
With the above direction the C.C is disposed -of. Supply free copy of this order to both the parties at an early date.
MEMBER PRESIDENT
