O R D E R
1. The present complaint case has been filed by the complainant Naresh Prasad Sah r/o village-Barahat, p.o and p.s - Barahat, District- Banka (Bihar) against O.P’s namely (1) M/s Mahindra &Mahindra financial services Ltd. 7KYD Street Kolkata, the financer of the vehicle in question and a wing of O.P.No-2, (2) M/s Mahindra & Mahindra , Mahindra Tower, Worley Road-3 Mumbai the head office of the Authorised Company,(3) Auto Planate Industry (Pvt) Ltd, Dhanbad (Jharkhand) the authorized dealer of Mahindre and Mahindra Ltd.,(4)M/s Himmatsingka Brothers, Authorized agent Mahindra and Mahindra at Dumka and (5) M/s Star India Agency, Show-room, Jhapatapur, Kharkpur (W.B) where vehicle in question was delivered to the complainant U/S-12 of the Consumer Protection Act,1986 (hereinafter called as C.P.Act,1986) for illegally and forcibly seizure of the vehicle bearing registration No-WB-37A/8364 having model Mahindra-Maxx-Pickup/2WD/FIRT/BED/BS-11 (CMVR) without any legal notice of the company or authority and then selling way the said vehicle and causing irreparable loss to the complainant and thereby committing negligency deficiency in services and unfair trade practices. The complainant has prayed to direct the O.P’s to pay Rs.3,43,703/-( Three lac forty three thousand seven hundred three) towards the primary loss, further prayed to direct O.P’s to pay Rs,50,000/-(Fifty thousand) as a compensation for mental tension, agony, harassment and loss of income substained by the complainant and also direct to pay Rs.10,000/-(Ten thousand) towards cost of litigation etc. Besides the complainant has prayed to grant appropriate interest on the awarded amount.
2.The brief facts of the complainant case as revealed in the complaint petition, documents annexed therein as well as from the short notes of arguments are as follows :-
That the complainant purchased one Mahindra and Mahindra Maxx pickup vehicle having model Mahindra Maxx Pickup /2WD/FIRT/BED/BS-11-CMVR) bearing registration no- WB-37A/8364 on financial assistance given by M/s Mahindra and Mahindra financial services Ltd(O.P No-1), after having being entered in to an agreement for a sum of Rs.4,26,188/- on 21.07.2005 from Star India Agencies, Jhaptapur, Kharakpur (W.B) (O.P No-5) . The vehicle was delivered to the complainant. The said loan agreement prepared and sanctioned by O.P No.1 and as per terms of agreement complainant has to pay the loan amount in a period of three years on monthly installment @ 10,350/-(Ten thousand three hundred fifty) per month. The complainant made down payment of Rs.90,000/- (Ninety thousand) to the O.P.No-1 and O.P.No-5 under said hypothecation agreement and paid insurance amount Rs.10,000/- towards the insurance of the said vehicle for a period from 21.07.2005to 20.07.2006 and insurance continued till July2007.
It is alleged that the O.P’s took complainant signature on so many blank and unfilled printed papers, however complainant did not transfer the vehicle in favour of financer O.P.No-1).
The further case of the complainant is that after purchase of the vehicle the complainant regularly paying monthly installment @10,350/- to O.P.No-1 in time till 31.05.2007 without any default. The further case of the complainant is that on 18.10.2005 the chasis of the vehicle got broken, while the vehicle was still under guarantee period, hence, he immediately informed to the O.P’s for the same in writing with a prayer to change or replace the said chasis but they did not take care and consider his request in time and due to said default the vehicle remained on road and complainant could not carry out his business.
The further case of the complainant is that, he made repeated request to the O.P’s to take proper step either to replace or change the chasis but it was ultimately replaced by Auto Planate Industry, the authorized dealer of the company (O.P.No-3) on payment of Rs.5765/- on 04.06.2007. It is alleged that due to non replacement or change of damaged chasis the complainant sustained loss to his monthly income about Rs.15,000/-per month, though the vehicle was still remained under guarantee period.
The further case of the complainant that he was regularly depositing the installments even when the chasis of the vehicle was broken on 18.10.2005 till it was replaced on 04.06.2007 to the O.P’s and he deposited in total Rs.1,87,508 towards installment,Rs.10,658/- towards insurance,Rs.90,000/- towards down cash payment at the time of delivery of the vehicle and Rs.5,765/- towards replacement of damaged chasis and therefore, he paid in total amount of Rs.2,93,703/- to the O’P’s.
The further case of the complainant is that on 18.06.2007 i.e. within 15 days of replacement of chasis the opposite party wrongly and illegally repossessed the said vehicle .It is alleged that the vehicle was forcibly repossessed by the agent of O.P.No.1 namely Binod Kumar Das withput any valid notice and default in payment of installments.
The further case of the complainants that he visited manytime in the office of O.P’s at Dumka and Jhapatapur Kharakpur (W.B) but they did not either release or handover the vehicle in question to the complainant rather subsequently sold away the said vehicle. It is further alleged that entire exercise of O.P’s in forcible repossessing and the selling away is illegal against natural justice.
The further case of the complainant that of earlier he filed a consumer complaint case before District Consumer Forum, Banka (Bihar) vide No.31/2009 i.e. Naresh Prasad Sah Vrs Mahindra and Mahindra Ltd. Mumbai and others in which O.P.No.1 and 2 appeared and field objection on the ground of the territorial jurisdiction. The said forum after hearing disposed off the case and ordered to file the case in the Competent Court of jurisdiction either at Dumka or at kharagpur hence, he filed this case before this forum.
It is further alleged that O.P.No-1 with the help of his goonda element had illegally and forcibly repossessed the vehicle and due to this illegal act of the O.P’s, the complainant suffered lot of mental tension, agony, and loss. The complainant having found no alternative filed this case for redressal of grievance before this forum as per the order of the district consumer forum Banka (Bihar) on 24.11.2012.
3. Having received the complaint petition on 24.11.2012 the case was admitted on 30.11.2012 and O.P’s were noticed to file their written version. After receiving notices only O.P. No-4 appeared on 01.11.2013 but remaining O.P. i.e. O.P.No-1,2,3,and 5 did not appear even after publication in daily news paper hence vide order dated 19.02.2016 the case proceeded ex-parte against them. It further appears that on 18.08.17 O.P.No-2 appeared and vide order dated 01.09.2017 allowed to contest the case by filing its written version and then filed w.s. on 27.01.2018.
4. O.P.No-5 M/s Himmatsingka Brothers, Dumka in its written statement besides being taken preliminary objections such as maintainability ,lack of jurisdiction ,and mis-joinder of party has admitted that this answering O.P. is an authorized service center of the M/s Mahindra and Mahindra (O.P.no.2) at Dumka and used to provide service to the vehicles under the direction of company. This answering O.P has further admitted about the fact of braking of chasis of the complainants vehicle however denied that the chasis was broken on 18.10.2005 rather on said date the vehicle was brought to service center of this O.P. It has further been averred that after receiving complaint the vehicle was properly inspected and found that chasis was not completely broken however. the claim of the complainant was referred to the company and complainant was asked to visit after some time .This answering O.P. further denied that the chasis was never replaced on cost of Rs.5,765/- rather asserted that complainant never visited the service center of this O.P after 18.10.2005. It has further been averred that this O.P has been made party unnecessarily with the view to filling the lacuna of jurisdiction .It has also claimed that this answering O.P. has wrongly been added as a party and he has no knowledge about the replacement of the chasis through the Auto planate Industry (Pvt.) Ltd. Dhanbad . This answering O.P has claimed that it is no where responsible for the deficiency of services and this proceeding should be dropped against this answering O.P.
5. O.P.No-2 M/s Mahindra and Mahindra limited, Mumbai in its written statement has also taken preliminary objections such as maintainability lack of cause of action, the case does not fall within the definition of consumer dispute and the complainant is not a consumer as he is involved in commercial activities which is outside the purview of the Consumer Protection Act,1986. A Para- wise reply has been given where in some facts have been admitted. In reply to para-3 of the complaint petition this O.P has stated that the complainant has not furnished the entire facts and this O.P never harassed the complainant as alleged in the complaint, whereas the matter regarding seizure of the vehicle by O.P.No-1 and loss sustained by the complainant are not related to this O.P. Further in reply to para-4(i) of the complaint petition it has been answered that it is matter of record whereas denied the statement made in para-4(ii)of the complaint petition stating that as per retail cash memo submitted by complaint the running status of the vehicle on 04.06.2007 was 67,000 K.M which shows that the vehicle was all along in running condition besides the complainant has not furnished copy of written information about the defect in chasis and hence this O.P cannot comment on this point. In reply to para-5 of the complaint petition this O.P has stated that the value of service as mentioned was high and excessive and hence denied. This answering O.P has denied the total amount of claim as mentioned in the complaint petition stating that complainant is not entitled to get the reliefs claimed against this O.P and accordingly prayed to dismiss this case against this O.P.
6. We have heard the argument of the contesting parties and gone through the record along with the material and documents attached therewith.
7. The complainant in support of his case has filed oral as well as documentary evidence. Amongst oral evidence filed affidavited statement of three witnesses including himself, out of which C.W.-1 Naresh Prasad Sah is the complainant himself, C.W.-2 Ramesh Kumar Sah is the son of the complainant and witness of the entire fact and C.W-3 Promod Manjhi is an independent witness on the facts. Besides oral evidence complainant has filed the following documents which have been marked exhibits as follows:-
Ext.1- the original inventory list prepared at the time of repossession of the vehicle by Binod Kumar Das;
Ext.2- the original policy certificate issued by the Oriental Insurance Company Ltd. dated 27.07.2006 in favour of complainant;
Ext.3- the original owner book in the name of complainant;
Ext.4- Original tax invoice of Star India Agencies ( Mahindra )for M/s Mahindra and Mahindra financial Services Ltd. Kalkata in favour of the complainant;
Ext.5- Original cheque/ Demand draft receipt issued by Mahindra financial service Ltd. Mumbai;
Ext.6- (Series) Original installment receipts dated 31.05.2007;
Ext.7- Original certificate of registration and certificate of fitness;
Ext.8-Copy of pleader’s notice dated 21.01.2008,14.03.2017 and 5.09.2007 with postal receipts;
Ext.9- Original jobcard receipt no 1889 dated 18.10.2005 issued by Himmatsingka Brothers, Dumka;
Ext.10.Original receipt granted by Auto planate Industry (Pvt) Ltd. Dhanbad.
On the other hand no any oral or documentary evidence has been led on behalf of the contesting O.P’s in support of their cases.
8. Now the only point for discussion is whether the complainant is entitled to get the relief as prayed for?
F I N D I N G S
9. It is the admitted position of this case that O.P.No.1 M/s Mahindra and Mahindra Financial Service Ltd .Kolkata is a wing of O.P.No.2 , M/s Mahindra and Mahindra ,Mahindra Towers, worli road no.3 Mumbai .O.P No.3 Auto Planate Industry (Pvt) Katras Road matokuria, Dhanbad is the authorized dealer of O.P.No.2 . O.P No.4 M/s Himmatsingka Brothers is also an authorized agent of O.P.No.2 at Dumka and authorized service centre of the vehicle of the company. Whereas O.P.No.5 M/s Star India Agency, 1A Nazar Ali lane Kolkata having show-room at Jhapatapur, Kharagpur (W.B) is the original show-room where the vehicle in question was delivered to the complainant.
These facts have not been denied by the contesting O.P.No.2 and 4 that earlier this case was filed before the District Consumer Forum, Banka(Bihar) vide complaint case No.31/2009 by the same complainant against the same set of O.P’s in which O.P.No.1 and 2 appeared and field a petition on 16.11.2009 to decide territorial jurisdiction of the court as preliminary issue. The said Forum after hearing parties passed the order on 21.03.2012 and held that as the O.P’s do not reside in the district of Banka (Bihar) nor have its branch office or caring any business and also not personaly working for gain hence, the case was not maintainable in the district Forum, Banka. It was also held that as the transaction concerning vehicle was made at Kharakgpur and Dumka hence, District forum of Kharagpur and Dumka have jurisdiction to entertain the case. It is also evident this O.P.No.1 and 2 did not move in appeal against the said order.
It is further admitted position of this case that O.P.No.1 M/s Mahindra and Mahindra financial service Ltd. Kolkata did not appear before this forum. However O.P.No.2 has appeared before this court and did not dispute the order passed by the District Consumer Forum, Banka (Bihar) in complaint case No.31/2009 .O.P.No.1, who is the wings of O.P.No.2 knowing full well about this case did not choose to appear and contest.
The complainant has come up with the specific case that he purchased the vehicle in question from O.P.No.5 M/s Star India Agency ,Jhapatapur, Kharagpur (W.B) and it was financed by O.P.No.1 M/s Mahindra and Mahindra financial Service Ltd. Kolkata and the vehicle was bearing registration No.WB-37-A/8364 having Engine no GA51F54928 and chasis No.0201AJ1350N and the loan amount of the vehicle was 4,26,188/- and the vehicle was delivered on 21.07.2005 in favour of the complainant . The model of the vehicle in question was Mahindra Maxx pickup/2WD/FIRT/BED/BS-11(CMVR) and it was insured at the instance of O.P.No.1 and 5 with Oriental Insurance Company Ltd.
It is also admitted fact that the chasis of the vehicle got broken on 18.10.2005 and it was brought to the authorized service centre of company at Dumka i.e.(O.P.No-4) , however it was replaced not replaced by O.P.No.4 rather by O.P.No.3 on 04.06.2007. It is also an admitted fact that the said vehicle was forcibly repossessed by the O.P.No.1 with the help of its authorized agent Binod Kumar Das and subsequently it was sold away to someone else.
10. Before, we proceed to determine the merits of the case, it would be appropriate to consider the preliminary objections which has been raised by O.P. No.2 and O.P.No.4 in this case:-
- Whether the complaint is a consumer within the meaning of Sec-2(1)(d) Explanation clause of the Consumer Protection Act,1986?
- Whether this forum has jurisdiction to entertain the case ?
The first point raised by the O.P. No.2 and 4 that complainant is not a consumer as he purchased the vehicle in question for “commercial purpose”. On the other hand learned counsel for the complainant has contended that the vehicle was purchased for earning livelihood of the complainant by self employment.
In the present case it has been claimed on behalf the complainant the vehicle was purchased on the financial assistance of O.P.No-1 for commercial purpose in order to earn his livelihood by self employment.
Sec-2(1)(d) explanation clause of the Comsumer Protection Act,1986,reads as follows:-
Consumer meaning any persons who-
- Buys any goods for a consideration…………
(ii) hires or avails] of any services for consideration which has been paid or promised ………… but does not include a who avails of such services for any commercial purpose.
Explanation- For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning of his livelihood by means of self employment ”
In the aforesaid provision it is clear that commercial purposes does not include use by person of goods bought and used by him and services availed by him, exclusively for the purpose of earning his livelihood by means of self employment. In this connection Hon’ble supreme court in “Lakshmi Engineering Works case reported in AIR1995 SC at page 1428held that where a person purchased goods for carrying any transport activities on a large scale for the purpose of earning profit. He will not be a consumer within the meaning of Sec-2(1)(d) of Consumer Protection Act,1986. In the present case it is evident from the evidence of complainant (C.W-1 Naresh Prasad Sah), C.W-2 Ramesh Kumar Sah, the son of the complainant and C.W.-3 Pramod Manjhi that the vehicle was purchased by the complainant on obtaining loan form O.P.no.1 and for earning his livelihood by self employment . The complainant did not carry any transport business on large scale. On the other hand the contesting O.P’s have not led any evidence in support of their claim of carrying commercial activity by the complainant. Therefore, in view of principle laid down by the Hon’ble supreme court and the evidence brought on the record ,we come to conclusion that the complainant is a consumer within the meaning of Sec-2(1)(d) Explanation clause of the Consumer Protection Act,1986and the objections raised by O.P’s have no leg to stand.
The another objection raised by contesting O.P’s that this forum has no jurisdiction to entertain this case .In the present case the complainant has come up with a definite case that he purchased the vehicle in question from O.P.No-5 the authorized dealer of O.P.No-2 at Jhapatapur, Kharagpur (W.B) on financial assistance of O.P.No.1 Mahindra and Mahindra financial services ,Kolkata. It has further been claimed that servicing of the said vehicle was done at M/s Himmatsingka Brothers ,Mahindra and Mahindra showroom, Dumka. It is also been claimed that the chasis of the vehicle was broken on 18.10.2005 hence, the vehicle was brought at the servicing centre of O.P.No-4 situated at Dumka.It has been alleged that the vehicle in question was forcibly repossessed on 18.06.2007 by the agent of O.P.No.1 at Dumka.
Sec-11 of Consumer Protection Act,1986 deals with the jurisdiction of District Consumer Forum-
(1) Subject to other provisions of the Act………
(2) A complaint shall be instituted in a District Forum within the local limit of whose jurisdiction—
(a) the opposite party or each of the opposite parties …..
(b) any of the opposite parties, where there are more than one ,at the time of institution of the complaint actually and voluntarily resides or [ carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [ carry on business or have a branch office ],or personally works for gain as the case may be, acquiesce in such institution; or
(c) The cause of action ,wholly or in part arises .”
In the present case it is evident that the servicing of the vehicle was done at servicing of centre of O.P.No.4 at Dumka and vehicle was forcibly repossessed by O.P.No.1 at Dumka. Besides O.P.No-2 has its showroom at Dumka. Therefore in view of Section 11(2)(b)and (c) of the Consumer Protection Act,1986 this forum has full jurisdiction to entertain this case. Further more in the same case earlier learned District Consumer Forum, Banka(Bihar) vide order dated 21.03.2012 between the same party held that District Consumer forum ‘Dumka and Jhapatapur , Kharkgpur are the competent court of jurisdiction. Hence we come conclusion that the contention of contesting O.P’s have no force.
11. Now we will discuss and determine whether the complainant is entitled to the reliefs claimed?
C.W.-1 Naresh Prasad Sah the complainant himself in his affidavited statement has fully supported his case stating there in that he purchased Mahindra and Mahindra Maxx Pickup vehicle on loan for a sum of Rs.4,26,188/- on 21.07.2005 from Star India Agency, Jhapatapur, Kharagpur (W.B) on down payment of Rs.90,000/-on the same days.. As the terms and conditions of the agreements he has to pay the loan installments @10,350/- per month within three years and servicing of the vehicle had be done from the nearest servicing Agency i.e M/s Himmatsingka Brothers, Dudhani, Dumka. He has also stated that he got the vehicle insured on payment of Rs.12,525/-. He has also stated that finance Company did not deliver entire papers to him, however, it obtained his signature on some plane papers. After taking delivery of the vehicle he began to use the same and paying monthly installment to the finance company i.e. Star India Agency Jhapatapur, Khargpur and was obtaining receipt, suddenly on 18.10.2015 the chasis of the vehicle got broken and then he immediately informed about the same in writing to the finance company requesting him to replace the broken chasis as the vehicle was under guarantee period but neither serviving centre of the company nor the Insurance company accepted his request, hence, his vehicle remain stand still though , he was paying monthly installment to the finance company regularly. He has further stated that on his legal notice to the opposite parties, the O.P.No.3, the authorized dealer, replaced the damaged chasis and took Rs.5,765/- from him on 04.06.2007.He has also stated that he never made any default in payment of Monthly installment even during the braking of chasis on 18.11.0.2005 till its replacement on 04.06.2007. He paid Rs.1,87,508/- towards installments,Rs.90,000/- as down cash payment at the time of delivery of the vehicle ,Rs.10,658/- towards Insurance amount and Rs.5,765/- towards chasis replacement cost and in this away paid a sum of Rs.2,93,703/- to the O.P’s . He has further stated that he submitted entire concerning documents in this court which have been marked Exhibits. He further more stated that on 18.06.2007 the O.P’s illegally and forcibly repossessed his vehicle despite the fact that there was no dues against the said vehicle of the O.P’s. On many times he visited to the office of O.P’s at Dumka and Kharagpur but they did not take care to his request hence he lastly filed this case in this forum. He has also stated earlier he filed a case before District Consumer Forum, Banka (Bihar) vide C.C.No-31/2009 against the O.P’s .which was disposed off on 21.03.2012 with the direction to file case before competent court of jurisdiction, hence filed this case before this forum . He has also stated that he is entitled to get the reliefs claimed by him.
C.W.2 Ramesh Kumar Sah, C.W.3 Pramod Manjhi in their respective affidavited statement have fully supported the complainant case and corroborated the version of the complainant . On the other hand the contesting O.P’s i.e. O.P No-2 and 4 have neither cross- examined these witnesses nor field counter affidavit in support of their cases. Thus the unrebutted affidavited statement of the witnesses proved the complainants case.
12. Now,we will analyse the documentary evidence. Ext.4 is the original tax invoice issued by Star India Agency, Jhaptapur, Kharagpur (O.P.No-5) showing that ,that the total amount paid by the complainant in purchasedof the vehicle was Rs.4,26,188/-. Ext.-5 is the receipt dated 21.07.2005,showing total margin money etc received from complainant was Rs.90,000/-. Ext.-6 series are the original installment receipts running in nineteen sheets showing that the complainant has been paying installments regularly to O.P.No-1. Ext-10 is the original receipt granted by Auto Planate Industry Pvt. Ltd. , Dhanbad amounting to Rs.5,765/-dated 04.06.2007 towards the replacement of chasis. Ext.-8 is the copy of pleaders notice dated-21.01.2008,14.03.2007 and 05.09.2007 which were sent to the O.P’s regarding release of vehicle illegally seized by them ( O.P). Ext-1 is the original inventory list issued by Binod Kumar Das, the authorized agent of O.P.No-1 on 18.06.2007. This documents clearly show that O.P.No-1 through its agent Binod Kumar Das had repossessed the vehicle in question from possession of the complainant’s driver on 18.06.2007. Ext-2 is the original policy issued by Oriental Insurance Company Ltd. .on 27.06.2007 covering risk till 27.07.2007 . Ext-3 is the original owner book standing in the name of the complainant. All these document have fully proved the complainants case that the vehicle in question was purchased by the complaint on financial assistance of O.P. no-1 and the vehicle was insured till July-2007 on yearly premium of Rs.10,658/-. It is also proved that after purchase the complainant had been regularly depositing monthly installment Rs.10,350/- to the O.P.No-1 at Star India Agency Jhapatapur, Kharagpur and paid installment till 31.05.2007. It has also been proved that the complainant got the chasis replacement done from the authorized dealer of the company i. e O.P.No-3 on payment of Rs.5,765/-on 04.06.2006 and in this away complainant paid in total of Rs.3,03,703/-. It is further more proved that on 18.06.2007 authorized agent of O.P.No-1 namely Binod Kumar Das without any valid and genuine reason forcibly repossessed the vehicle in question. The contesting O.P’s have not denied the allegation and documents filed by of the complainant.
13. Learned Counsel for the complainant contended that O.P.No-1 and O.P.No.5 got the vehicle forcibly repossessed the vehicle through their authorized agent Binod Kumar Das against prescribed procedure of law as the O.P’s did not intimate the complainant about repossession of vehicle prior to seizure and also did not inform police prior and post to forcible seizure. On the other hand contesting O.P’s counsel did not choose to the contention answer of the complainants counsel.
On close scrutiny of the documents we find that entire exercise of repossession of the vehicle in question was against prescribed procedure and law. In this connection the Hon’ble Appex court in a case law reported in S.C.C.2007 volume-II page-711 held that Entire exercise by,the company in repossession of the vehicle with the help of Goonda elements is highly deprecated and hence, complainant entitled for the damages of such illegal seizure”.
In another case law Hon’ble National Commission Dispute Redressal Commission,New Delhi reported in 2009(2)CPR 23(NC) in a case of Tata Motors Ltd.Vrs Indra sen Choubey and others held that “In a case when the vehicle was repossessed by use of force and thereafter sold without informing the complainant, in our view, it would be unjust to direct the consumer to pay the balance amount as alleged by the financer to be standing. If such a relief is given to the money lender / financer it would be unjust enrichment to the money lender and against equity”.
Both the case law’s goes squarely applicable to the instant case of the complainant. Thus, we are of the view that the O.P.No-1 and O.P.5 have violated all the prescribed norms, procedural law as well as against principal of law settled by the Hon’ble court’s. Forcibly repossession the vehicle in question was without any valid reason and such acts goes to show that it amounted to an offence u/s 394 I PC i.e. robbery on high away. Moreover it is also proved on the basis of oral and documentary evidence that Opposite Parties no.2,4,and 5 have violated the terms and Conditions of Company by not replacing the broken chasis of the vehicle which was still under guarantee period and due to the said reason the complainant sustained loss of monthly income of Rs.15,000/-per month and be had to pay Rs.5,765/- in replacement of the chasis to O.P.no.3. Therefore, the complainant is entitled to the entire amount paid by him to O.P.no.1 and 5, replacement cost of chasis paid to O.P.no.3, compensation for the mental agony, harassment and loss of income, sustained by him. Besides entitled to the cost of litigation as he fought a long battle get the redressal of his grievance.
14. Considering all the above facts, circumstances, legal provision, case as well as the case law’s cited above we find that the repossession of the vehicle in question by O.P.No-1 with help of its agent and not replacing the broken chasis during warranty and guarantee period in collusion with O.P.no.2,O.P.No.4 and O.P.No-5 is an act of gross negligency and deficiency in services besides it also amounted to Unfair Trade Practices adopted by these O.P’s, However in view of evidence on the record we do not find any involvement and made out liability against O.P.No-3 .
In the result,
O R D E R E D
That the case be and the same is allowed ex-parte with cost against O.P No.1 i.e. M/s Mahindra and Mahindra Financial Services Ltd 7KYD Street ,Kolkata O.P.no.5 M/s Star India Agency 1A Nazar Ali lane, Kolkata,Showroom at Jhapatapur, Kharagpur(W.B) and on contest with cost against O.P.No.2 M/s Mahindra and Mahindra Mumbai and O.P.No.4 M/s Himmatsingka brothers, Mahindra and Mahindra Show room authorized agent at Dumka. The said opposite parties are directed to pay Rs.3,43,703/_( Three lac forty three thousand seven hundred three) as principal loss to the complainant .We further direct aforesaid O.P’s to pay compensation of Rs.20,000/-( Twenty thousand) and litigation cost Rs.5,000/-(Five thousand) to the complainant .Opposite Parties no.1,2,4 and 5 are jointly and severally liable for the deficiency as service and unfair trade practices .
We further direct O.P.No-1,O.P.No2, O.P.No-4 and O.P.No-5 to comply this order within 30 days from the date of receiving copy of this order failing which liable to pay interest @12% p.a. on the awarded amount from the date of filling of this case i.e. 24.11.2012 till its final payment to the complainant.
We further direct that in case of non-compliance of the order necessary action as completed U/S Sec-25 and 27 of the Consumer Protection Act,1986 will be initiated.
The office is directed to supply copy of this order to the parties or their concerned lawyer free of cost.
This case, is thus stands disposed off.
