This case is filed by the complainant against opposite party M/S Ashutosh Motors, M/S TATA Motors, M/S Abhisek Motors, M/S Ghosh Brothers Automobiles and TATA Motors Finance Ltd. U/S 12 of Consumer Protection Act, 1986 for deficiency of their service. The case is complainant in brief is that the complainant is purchaser of TATA Indica Vista Quadrajet Car on 24/06/2009 bearing Chasis No.611421LRZPPE2A05, Engine No.100A2000-0007140 from O.P.No.1 M/S Ashutosh Motors, Itachali A.T. Road, Nagaon which was registered as Registration No.AS-02A/2512, availing finance M/S TATA Motors Finance M/S TATA Motors Finance Ltd. proforma O.P.No.5. That a warranty of double free service and replacement was given by the opposite party for a period of two years from the date of purchase vide warranty card in the manual book of TATA Motors. Complainant also made service of the vehicle timely as per owners manual. Complainant at the time of running the vehicle experienced some problems in the air conditioner of the car and also found pick up problem of the car. The car discharges heavy smokes at the slight acceleration. The Car also in Spite of repeated acceleration did not take pick up. The Car is defective and at the time of servicing the mechanic of the Ashutosh Motors informed to complainant that defect is manufacturing defect. As the defect of the Car was discovered during the warranty period, the complainant had delivered the said Car to O.P.No.1 on 29/11/2010, O.P.No.1 issued a job card to the complainant and after subsequent enquiry it was found that O.P.No.1 gave complainant the Car to Ghosh Brothers Automobiles, R.G.Baruah Road, Guwahati (O.P.No.4 for removing defects. Since 29/11/2010 till filing of the case, the complainant had visited O.P.No.1 and O.P.No.4 for many times but they failed to give any satisfactory reply. The complainant requested and demanded O.P.No.1 to return the said Car to the complainant but O.P.No.1 instead of delivery of perfect Car without any defect, insisted the complainant to make and accident claim with the insurer although the said Car never met any accident since after purchase. In the meantime, the complainant made full and final payment of the finance during the pendency of the case. It is alleged that the Car purchased by complainant was defective and O.P.No.1 sold the said Car as good condition of the Car. After detecting the defect O.P.No.1 in lieu of sending his said Car to the company delivered the same to O.P.No.4. It is alleged thatO.P.No.1 at the time of selling the Car to complainant committed fraud by informing that O.P.No.1 is dealer of O.P.No.2 TATA Motors, but subsequently sell certificate was not issued by O.P.No.1, but by O.P.No.3 (Abhishek Motors Private Ltd.) who is passenger Car dealer MRD Road, Silpukhuri, Guwahati. It is also alleged that O.P.No.1 at the time of selling the Car did not disclose the status of O.P.No.1 )Ashutosh Motors) in relation to TATA Motors (O.P.No.2). In the sign board of O.P.No.1 had shown themselves as dealer of TATA Motors. Opposite party kept the Car nearly nine months i.e. till 20/07/2012  causing complainant financial loss physical pain and suffering. Complainant was paying monthly instalment in spite of the fact that Car was not in the road and in the garage of O.P.No.4. Complainant thereafter, issued notice to O.P.No.1 through Advocate and O.P.No.1 denied their liability which is gross negligence of opposite party and deficiency of service.

Under the above circumstances complainant has prayed before this Forum for compensation on per day basis till the delivery of the Car along with insurance charge along with prices of the vehicle and cost of proceeding.

All opposite parties i.e. O.P.No.1 to 5 contested the case by filing written version separately. O.P.No.1 Ashutosh Motors the seller of the vehicle resisted the case with different plea of their limited liabilities. This opposite party also categorically denied certain averment of the petition. The opposite party although denied the date of registration of the Car, but not denied about selling of the Car and handing over the Car for curing defect on the alleged date of occurrence. It is contended that complainant admitted about minor accident which is got appeared vide Job Card No.001522, dated 10/06/2010 where odometer showed reading 3354Km. and complainant concealed the fact in the complaint petition so that he can avail warranty. The main contention of opposite party is that O.P.No.1 having tie up with O.P.No.3 for selling vehicle as their authorized agent and going business of Itachali, Nagaon Town. It is stated that on 29/11/2010 complainant never approached the O.P.No.1 & 3 regarding any sort of problem as alleged. But as per record of TATA Motors the complainant once visited Ghosh Brothers Workshop after meeting minor accident without informing O.P.No.1 & 3 and subsequently after getting pick up problem complainant approached this O.P.No.1 that there is problem of pick up of the vehicle and also concealed the fact of the accident to avail the free service of company. O.P.No.4 has well equipped workshop and this opposite party rendered his free services at his own cost. This opposite party asked complainant to make action by reporting accident to the concerned insurance company. But this opposite party never approached by informing as alleged. The claimed petition is vague, manipulated unfair for which complainant will not get any compensation as prayed for.

 O.P.No.2 TATA Motors in the written version contended that complainant has filed baseless complaint alleging manufacturing problem of the Car without having any expert opinion in the form of evidence from notified laboratory to prove that the Car suffered from as alleged defects. Complainant had purchased the Car on or around 24/06/2009 from opposite party dealer and the said Car in question till 30/11/2010 had covered around 37,448Km and it manifests that the Car in question within a period on seventeen months had covered 2202Km/months. The said fact proves that the condition of the Car is absolute road working condition. That problem of poor pick up of the Car is not any manufacturing defect but due to impact made during the accident, thus it cannot be covered under warranty. The O.P.No.1 being small TATA Authorised service outlet, does not have diagnostics centre and requested complainant to take O.P.No.4. After through investigation at the workshop O.P.No.4, it was again found that under body was hit in the accident and it is stated that the defect of complainant’s Car, on account of operational failure, accident and negligence by the complainant and not due to any manufacturing defect. Hence it was not covered under warranty. There is no prima facie case against opposite party and this case is liable to be dismissed.

O.P.No.4 M/S Ghosh Brothers Automobiles denying the allegation of complainant has stated that the Car in question was received through Ashutosh Motors to remove the defect and the defect of the Car removed and made ready for delivery of the Car and accordingly informed to the owner of the Car. But the complainant failed to take back the Car reasons best known to him. As such there is no deficiency of the service of this opposite party for which the complaint petition is liable to dismissed.

O.P.No.5 TATA Motors Finance Ltd. who was the financer of the vehicle has stated that the claim of complainant is vague and baseless. It is also stated that as per contract of agreement with complainant, liable to pay Rs.4,29,295.00. Complainant is defaulter and overdue charges is Rs.1,60,465.00 which amount to a total amount Rs.2,56,755.00. Further, complainant has filed this instant complaint by making false allegation with respect to manufacturing defect in the vehicle just to counterblast the claim of outstanding amount of this opposite party. Complainant has failed to make out any prima facie case against this opposite party for which this case is liable to be dismissed.

In this case the vital issue is whether complainant is consumer under opposite party and there is any deficiency of service of opposite party.

In this connection both the parties have submitted questionnaires and replies of questionnaires. Both the parties filed affidavits in reply questionnaires and exhibited certain documents. Both the parties have filed written arguments. We have heard argument from both sides of learned counsel and perused the case record. Ld. Counsel of complainant at the time of argument although submitted that opposite party witness did not face cross examination for which the evidence of complainant will be sustained but it is settle law that cross examination of witness or a parties before Forum is not a rule, it is only exception. Cross examination cannot be done merely a question as to veracity of statement of witness.

In this case it is admitted fact that the complainant has Ashutosh Motors, A.T.Road, Itachali, Nagaon where TATA Motors Finance Ltd. O.P.No.5 was financer. At the time purchasing down payment was made Rs.1,52,200.00. From the evidence on record, it also appears that complainant had made full and final payment of the finance amount during the pendency of the case. As such there is no liability against the opposite party No.5 and complainant became absolute owner of the vehicle. O.P.No.5 also failed to prove that complainant is defaulter in payment of the finance amount. Further, complainant although purchased the vehicle by way of hire purchase and the vehicle was under hypothecation, but after making full payment became owner of the vehicle and the same was purchased by complainant for self employed for earning his livelihood and self use. As such complainant is consumer under sec2 of Consumer Protection Act, 1986. It is stated in the evidence that the vehicle has been facing some pick up problems and the air conditioner of the Car also not functioning. Further, the Car discharged heavy smoke at the slight acceleration. As a result of repeated acceleration failed to take pick up. The defect was discovered during the warranty period for which complainant delivered the said Car was purchased and informed to complainant that the Car was delivered the said Car to Ashutosh Motors on 29/11/2010 from where the Car was purchased and informed to complainant that the Car was delivered to O.P.No.4 for removal of defects. Accordingly job card issued to complainant from the Ghosh Brothers Automobiles, Sundarpur, Guwahati/O.P.No.4. But O.P.No.1 failed to deliver the Car to complainant in time. He requested O.P.No.1 & 4 many times personally but they did not give any satisfactory reply. On the other hand plea of opposite party is that complainant met the Car with a minor accident for which he got repaired the vehicle job card No.001522, dated 10/06/2010 at the odometers reading 33547Km. Complainant repaired the vehicle at Ghosh Brothers Automobiles/O.P.No.4 without intimating O.P.No.1 & 3. Learned Counsel has pointed out at the time of argument that admittedly complainant had completed five consecutive servicing but no complaint was registered at the time of servicing. But learned counsel of complainant challenging the argument has submitted that each and every servicing. Opposite party was informed about the defect of the Car where complainant was assured that it will be O.K. after availing full service. It appears that exhibit-A(a)(2)A 5 job cards issued against complaint for servicing of the vehicle complainant. These job cards show certain defects in the vehicle. Exhibit-5,6,7,8,9,10,11,12,13,14 shows that complainant had lodged complaint for removal of defects from the Car. Exhibit-5 to 14 are jobs card issued by O.P.No.1. In addition to these, exhibit-1 is the Advocate’s notice issued to O.P.No.1 by complainant. Exhibit 2 & 3 revel that notice was properly served to opposite party. Exhibit-4 is the reply given by O.P.No.1. In the said reply dated 28/12/2010 there is no mention about meeting accident of the vehicle. In the written version of O.P.No.1 admitted about the defects of the vehicle. It is seen that due to defect of the vehicle to the opposite party for repairing. During the pendency of the case, this Forum had called for a report from Motor Vehicle Inspector, Guwahati. Accordingly Motor Vehicle Inspector was deputed to inspect the vehicle on 26/12/2011 at 11.30AM in the workshop of O.P.No.4. At the time of inspection, found the pick up of the vehicle is not sufficient i.e. (upto mark) due to defect of Turbo Charger and also found a life impact on the bottom part of the Mobile Chamber. A/C of the vehicle was not working. This is a report of MVI which is a piece of Govt. documents and can be taken for Judicial notice. It appears the vehicle was handed over by the complainant to O.P.No.4 till 26/12/2011, initially near about one month without repairing. Ld. Counsel of opposite party at the time of argument referring Dr. K. Kumar Advisor (Engineering) Maruti Udyog Ltd. Vs. H. Narayan Rao & Anr. Reported on [1(2010) CPJ 19 (NC)] submitted that it is necessary of expert evidence to prove the submissions of manufacturing defect in the Car made in the complaint. In this case although report was submitted by MVI but failed to disclose the fact that whether this is the defect of manufacturing defect in the inspection report. MVI was not examined. None functioning of AC can easily be cured if expert pays attention at the time of repairing. Evidence on record shows that complainant purchased the vehicle on 24/06/2009 from O.P.No.1 with a warranty of two years double free service was granted to the complainant. Exhibit-42(1), 42(2) and 42(3) are the pages of warranty condition for warranty of two years. The defect occurred of the vehicle after a few month of purchased of the vehicle. Complainant issued Exhibit-1 Advocate’s Notice on 27/12/2010 i.e. within the period of warranty. The vital plea raised by the opposite party that the vehicle was met with a minor accident and repaired in Ghosh Brother, Nagaon vide job card No.001522 on 10/06/2010 and suppressed the fact for which complainant is not entitled to the benefit of warranty and advised to claim the insurance. But it denied by the complainant. The said job card discloses that minor repairing of the vehicle including expenditure incurred by the complainant Rs.1251.00. But this job card bears no signature of complainant to believe it to be genuine. O.P.No.2 although pleaded about manufacturing defect of vehicle but they had not adduced any evidence to substantiate the plea that the vehicle does not suffer from any manufacturing defect. O.P.No.3 in W.S. admitted they issued sale certificate of the vehicle under contractual and business obligation with Ashutosh Motors, Nagaon for which they are also involved in respect of defective sale of the vehicle. O.P.No.4 was entrusted for removal of the defect of the vehicle which was at their workshop and instead of repairing the vehicle was kept in their workshop causing negligence in providing service. O.P.No.5 simply financer of the vehicle and they have nothing to do accept realization of loan amount.     

For arguments shake, if the vehicle was met with an minor accident and out of this said accident the alleged defect arose, it was duty of the opposite party to cure the defect and to submit the bill to complainant as per provision of warranty after replacing the required parts, in such a case the liabilities can be fixed to complainant for non payment of bill to opposite party. If complainant wants to claim from insurance it is duty of the opposite party to help complainant in such a situation by settling the disputes within the period of warranty because it brings the faith of the consumer to the company from which the customers use to purchase the vehicle. But in this case, it has not happened. The vehicle was kept by the opposite party from the delivery date i.e. from 29/11/2010 till 15/06/2012 near about one & half year and thereafter, without handing over and settling the matter. In the period of pendency of this case this Forum had released the vehicle to complainant. A mechanically propelled vehicle cannot be kept on abeyance for longer period without running. This may cause rusting or heavy damage of the vehicle. In such a situation it is duty of opposite party to deal the matter very promptly. The evidence on records shows that there is gross negligence on the part of opposite party in providing service to complainant. It is clear from the evidence that complainant had approached to opposite party for removal of the defect from the vehicle but they have not done and suggested for insurance claim without any accident. It is not clear from the report about any manufacturing defect of the vehicle. Ld. Counsel of opposite party referred Maruti Udyog Ltd. vs. Sushil Kumar Gabgotra & ano. Case (JT 2006(4) SC 113 where Hon’ble Supreme Court held that “The manufacturer cannot be ordered to replace the car or refund its price nearly because some defect appeared which can be rectified or defective part can be replace under warranty”.

Considering all the above fact and circumstances and reasons discussed above, we are of considered view that the vehicle was not free from defect as alleged and unfit for running on the road for which complainant had to handed over for curing defect to opposite party during the subsistence the warranty period. But opposite party failed to repair and replaced the defective parts and to make fit for running of the vehicle on the road for which we find in this case that there is deficiency of service on the part of opposite party. Hence we find that O.P.No.1,2,3,4 are jointly liable for their deficiency of service. But O.P.No.5 is being a financer and after clearance of finance amount, nothing to do with complainant. Hence O.P.No.5 cannot be held a liable for their act. As such prayer for petition is partly allowed. O.P.No.1,2,3,4 are directed to repair the vehicle as per terms and condition of warranty. Further a compensation amount of Rs.50,000.00 (Fifty thousand) only is also imposed for suffering of complainant as financial lost for not having vehicle in time, mental agony harassment etc. Further, a cost of proceeding Rs.10,000.00 (Ten thousand) is also imposed. O.P.No.1,2,3,4 are directed to comply with the order of this Forum within two months from the date of order. In case of failing to make payment the above money 8% interest is to pay from the date of order till realization. This case is disposed accordingly.