Sri S.K.Sahoo,President.
The complainant is a bonafide resident of Village Kalanda under Angul district. He had purchased one 407 EX model Tipper from opp.party No.1 & 2 after obtaining finance from opp.party No.3 which was registered with No. OR-19N- 2278 . The tipper was purchased by the complainant to earn his livelihood and to maintain his family. The vehicle was delivered to the complainant on 22.12.2011 by the opp.party No.1, which was registered under RTO,Angul on 06.01.2012. Since then, the vehicle has been plying on the road at Banaigarh of Sundaragarh district, on contractual basis. After three months i.e in the month of April, 2012 there was problem from the stearing side of the aforesaid vehicle, for which the complainant went to opp.party No.1 who is the sales and authorised service station and requested him for necessary repairing. The opp.party No.1 assured and promised him to send the mechanic for check-up but not went for checking. On 1st may, 2012 the complainant found major defect from the side of Stearing Bracket and Gear Box of the vehicle for which he requested the opp.party No.1 to rectify the defect. This time also the opp.party No.1 assured to send the mechanic to make the vehicle defect free. On 02.05.2012 a mechanic of opp.party No.1, visited the spot, examined the vehicle and found major defect , for which he advised the complainant to take the vehicle to the service station .Before taking the vehicle to the authorised service centre of opp.party No.1 situated at Banarpal, the complainant repeatedly requested the opp.party No.1 & 2 over phone and letter for supply of the required parts to make the vehicle defect free. Both opp.party No.1 & 2 did not pay any heed to all the requests of the complainant. At last the complainant took the vehicle to Banarpal authorised service centre from Banaigarh by towing method on 25.06.2012 . The complaint has spent Rs. 9,500.00 for towing of his vehicle. The vehicle was remained ideal from the month of April, 2012 to June, 2012 due to deficiency of service by the opp.parties as the required parts were not available in the service centre or in the open market, during the warranty/guarantee period . The complainant suffered a lot. On the advice of opp.party No.1 the complainant agreed to repair the vehicle to make it defect free by way of welding which was done on 29.06.2012. For the aforesaid period the complainant was paying salary to his driver and helper of his vehicle. The complainant has sustained a loss of Rs. 1,80,000.00 towards payment of salary to the driver and helper. He has also sustained mental pain and agony due to such complacent conduct of opp.party No.1 & 2. He has prayed for supply of the defective parts immediately and rectify the defects of the vehicle bearing Regd. No. OR-19N- 2278 .The opp.parties also liable to pay an amount of Rs. 2,55,000.00 to the complainant for supply of defective vehicle, loss, damaged, expenditure incurred by the complainant along with Rs. 50,000.00 towards mental agony and Rs. 5,000.00 towards cost of litigation.
2. The case of the opp.party No.1 is that the complaint filed by the complainant against opp.party No.1 is not maintainable .It is barred by law of limitation .There is no cause of action to bring the case before this Commission. The complainant is not a consumer. The complainant has suppressed the truth and has mislead the Commission, for which he is not entitled for any relief. The complaint petition suffered for mis-joinder and non-joinder of necessary party. The opp.party No.1 has no comment on paragraph 1 to 3 of the complaint petition. However the vehicle purchased by the complainant was used for commercial purpose. The contents of paragraph 4,5 & 6 are false and frivolous. The opp.party No.1 never deputed any mechanic to the spot on 02.05.2012 for inspection of the vehicle of the complainant at Banaigarh . The complainant never brought the vehicle to the work shop of the opp.party No.1 despite repeated advise. The opp.party No.1 has not received any letter from the complainant. The vehicle was brought to the workshop on 25.06.2012 which was in running conditions and the job card was issued accordingly. The complainant choose not to replace the defective parts rather requested for repairing the same and on his request the part was repaired and fitted to the vehicle. If the complainant has sustained any loss it is due to his own negligence and bad maintenance , rash and negligent driving and over loading. The opp.party No.1 is not liable at all for any loss to the complainant if any .There is no deficiency in service on the part of the opp.party No.1. Hence the complaint filed by the complainant be dismissed.
3. The case of the opp.party No.2 as per the written statement filed by him is that the opp.party No.2 is a man of immense reputation and has acclaimed great honour across the world being the director of the opp.party No.2.The opp.party No.2 is not at all involved in the day to day affairs related to sales and service of the vehicle sold to the complainant. There is no cause of action to file this case and there is no direct allegation against the opp.party No.2 .The complaint petition is barred by mis-joinder of parties.
4. On the prayer of the complainant opp.party No.3 has been deleted by order dtd. 06.07.2013 of this authority.
5. The complaint petition filed by the complainant is supported with affidavit. From the complaint petition it is clear that the complainant had purchased a 407 EX Model Tippes from opp.party No.1 &2 by getting finance from opp.party No.3 which has been subsequently registered as registration No.OR-19N- 2278 .At paragraph- 2 the complainant has also clearly mentioned that he has purchased the aforesaid tipper to maintain his family and earn his livelihood. Although in the written statement the opp.party No.1 has claimed that the complainant has purchased the tipper for commercial purpose ,no reliable materials has been placed by him before this authority during trial .At Paragraph-3 of the complaint petition it has been clearly mentioned that the opp.party No.1 has delivered the vehicle to the complainant on 22.11.2011 which was subsequently registered under the RTO,Angul on 06.01.2012 and plying on the road at Banaigarh of Sundargarh District on contractual basis. It is alleged by the complainant that after three months of purchase i.e in the month of April, 2012 the vehicle started problem from the stearing side and in spite of several requests neither the opp.party No.1 nor the opp.party No.2 pay any heeds. It has been specifically alleged that due to the deficiency of service by opp.party No.1,the complainant sustained loss and mental agony. At paragraph-14 of the written statement the opp.party No.1 has mentioned that the complainant never brought the vehicle to the work shop of opp.party No.1, despite repeated advise. Although the complainant at paragraph-7 of his complaint petition specifically mentioned that he has made several requests to the opp.party No.1 through telephone, he has not produced any material before this authority to prove , in fact he had requested to opp.party No.1 through telephone. Although the photocopy of a letter dtd. 01.06.2012 has been filed by the complainant which shows that it has been addressed to opp.party No.1 for repairing of the vehicle ,no material has been placed before this authority that in fact that letter has been sent to the opp.party No.1. There is no reason as to why the complainant failed to produce any such documents relating to the actual despatch of the letter dtd. 06.01.2012. However, at paragraph- 8 of the complaint petition the complainant has mentioned that on 25.06.2012 he towed his tipper to the service station of opp.party No.1 at Banarpal by spending an amount of Rs. 9,500.00. The said fact that the tipper was brought to the work shop of opp.party No.1 has been admitted by opp.party No.1 in his written statement at paragraph- 15 .At paragraph- 16 of the written statement , opp.party No.1 has stated that the complainant did not choose to replace the defective part , rather repaired the same and on his request the repaired part was fitted to the vehicle. On the other hand it is alleged by the complainant that on the advise of opp.party No.1, the complainant agreed to repair the defect parts by way of welding on 29.06.2012 as opp.party No.1 failed to supply the genuine parts within the warranty/ guarantee period. The opp.party No.1 has not challenged the said averments of the complaint petition i.e the warranty/guarantee period was available to the complainant. We don’t find any reason as to why the complainant will request for welding of a part within the warranty/guarantee period if a genuine part was available at that time. The plea of the complainant is more reliable and trust worthy. From the materials on record it is clear that the opp.party No.1 failed to supply genuine parts to the complainant within the warranty/guarantee period, for which the complainant was bound to run his vehicle by welding, to earn his livelihood. There is gross deficiency in service on the part of the opp.party No.1. There is no direct evidence against opp.party No.2 regarding deficiency of service by him.
6. This is a case of year 2012 and till now the opp.party No.1 failed to supply the genuine part to the complainant by rectifying the defect found in the vehicle. Till now the complainant suffered mental agony and fighting the litigation before this Commission.
7. Hence ordered :-
: O R D E R :
The complaint filed by the complainant is allowed in part on contest against opp.party No.1 & 2. The opp.party No.1 is directed to pay an amount of Rs. 50,000.00 (Rupees Fifty Thousand)only to the complainant towards loss and mental agony suffered by the complainant during this period. The opp.party No.1 is further directed to pay an amount of Rs. 5,000.00 (Rupees Five Thousand) only towards cost of litigation.
Opp.party No.1 is directed to comply the above order within one month from the date of receipt of this order failing, he has to pay interest @10% per annum until the said amount is paid to the complainant .
