For Complainant : Sri Pravat Kumar Padhi, Advocate.
For OP No.1 : None
For OP No.2 : Sri K. N. Samantaray, Advocate & Associates.
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1. The brief facts of the case of the complainant are that he purchased a WB Truck from OP No.2 vide Invoice No. PAPL/78/15-16 dt.28.01.2016 for Rs.17, 00,000/-, the manufacturer of which is OP No.1 and the vehicle is registered with RTO, Koraput for carrying BPCL products as tanker. It is submitted that the vehicle was put at service but on 15.09.2016 it was found that the SLD Spare fitted with the vehicle (ABS & Speed Limiter) is not working and due to non functioning of said spare part worth Rs.25, 000/-, the BPCL is not paying load to the vehicle and as per Government guidelines if this system is not fitted or not working, the owner of the vehicle will be fined. It is further submitted that the complainant soon after 15.09.2016 intimated the dealer-OP.2 about the facts and requested to make the SLD spare functional or to fit a new one as the vehicle is under warranty. The OP.2 stated that the SLD spare is not available with him and the OP assured that he will bring it from the Company and fit the same on the next free service. The complainant submitted that the next free service was done on 19.10.2016 and the complainant reminded the same to OP.2 about the defect in SLD. The OP.2 undertook other repairs except SLD complaint and did not mention about SLD defect in the Job Sheet dt.19.10.2016 stating that the SLD spare is not available. It is also further submitted that after one week, he contacted OP No.2 who expressed his inability and took further time to bring the SLD spare for which the vehicle remained idle. The fact was also intimated to Mr. Malay Kumar Panda, Asst. Manager (Truck) of OP.1 three times during October, 2016 (9937098943) who assured for early action in the matter but to no avail. As all his efforts went in vain, the complainant filed a complaint vide No.12016240917 dt.08.11.2016 with M/s. Ashok Leyland but no action has been taken by the Ops. Thus alleging defect in goods and deficiency in service on the part of the Ops, he filed this case praying the Forum to direct the OP.1 to replace the defective SLD spares with a new one and to pay Rs.3.00 lacs towards pecuniary loss, Rs.1.20 lac towards compensation and cost to the complainant.
2. The OP.1 in spite of valid notice neither filed counter nor participated in the proceeding in any manner. The OP No.2 filed counter denying the allegations of the complainant and contended that the disputed vehicle is being used by the complainant for commercial purpose and hence the complainant is not a consumer of the Ops within the meaning and provisions u/s.2(1)(d) of C. P. Act and hence this case is not maintainable against the Ops. It is contended that 1st free service was done on 19.10.2016 and the vehicle was received by the complainant through its driver with full satisfaction but the OP denied any complaint regarding non functioning of SLD spare by the complaint on 15.09.2016 and during first free service no such defect is noticed. It is further contended that during 2nd free service on 02.12.2016 the OP.2 found defect in the SLD spare part and due to non availability of the same, the OP booked the consignment with the Company. It is also contended that the SLD Kit was received from the Company on 06.01.2017 and the fact was intimated to the complainant but he did not listen to the request of OP.2 for which a registered letter was sent to the complainant on 23.2.2017. It is also further contended that on receipt of registered letter, the complainant produced his vehicle in the workshop of the OP on 03.03.2017 and the replacement of SLD spare was done under warranty. Thus denying any deficiency in service on its part, the OP prayed to dismiss the case of the complainant.
3. Both the parties have filed certain documents in support of their respective cases. Heard from the complainant through its A/R and perused the materials available on record.
4. In this case, purchase of WB Truck Ashok Leyland purchased by the complainant from OP.2 on 28.01.2016 is an admitted fact. The OP stated that the alleged vehicle is a Tanker and is being used for commercial purpose and hence the complainant is not their consumer as envisaged u/s.2 (1) (d) of C. P. Act. It is seen from the record that the defect was noticed in the vehicle during warranty period and the OP has replaced the defective spare under warranty. Hence even if a vehicle is used for commercial purpose and defect if any noticed during warranty period, the same will be removed under warranty as held by higher Forums in a cantina of judgments. In view of above facts, this case is maintainable and the complainant is a consumer of the Ops.
5. The case of the complainant is that he noticed the defect in SLD spare fitted with the vehicle during warranty period. The complainant submitted that the Govt. of India has been taken initiative to make country cleaner and safer by equipping mandatory ABS (Anti Lock Breaking System) and Speed Limiters on all commercial vehicles sold in the country. This decision cause to effect from 01.10.2015 and if the said system is not fitted in the vehicle or not working, the owner of the vehicle will be fined. This being the fact, the complainant noticed SLD spare defective on 15.09.2016 and immediately intimated the fact to the OP.2 but the OP.2 stated that the spare is not available with him and he will bring it from the Company and fit the same on next free service. On next free service dt.19.10.2016, the complainant reminded about non functioning of SLD spare but the OP.2 did not mention the same in the job sheet and stated that the spare is not available with them.
6. The OP.2 in his counter stated that on 19.10.2016 they have not detected any defect in the SLD and only on 02.12.2016 the defect in SLD spare was noticed by them. Due to non availability of spare they could not fit the same in the vehicle of the complainant. The complainant denying the above averment of the OP.2, stated that due to defect in SLD spare he has contacted Mr. Malay Kumar Panda, Asst. Manager (Truck) of OP.1 three times during October (9937098943) who assured for early action in the matter but in vain. Further the complainant stated that he filed a Complaint with M/s. Ashok Leyland Ltd. vide No.12016240917 dt.08.11.2016. It is seen that the OP No.2 has not answered to the above allegations of the complainant.
7. Further the OP.2 stated that the defect in spare part was noticed on 02.12.2016 and he booked the consignment with the Company. The OP.2 also stated that they received the consignment on 06.01.2017 and requested the complainant to produce his vehicle but the complainant did not listen. Hence on 23.2.2017 they wrote a letter to the complainant and the complainant produced his vehicle on 03.03.2017 on which date the defective spare was replaced with a new one under warranty. It is seen that no explanation is filed by OP.2 as to what was he doing from 06.01.2017 to 23.2.2017. This case has been filed on 02.02.2017.
8. Now it is to be seen as to whether the OP.2 has committed any deficiency in service or not. The complainant stated that he reported the matter to OP.2 on 15.09.2016 and reminded on 19.10.2016 during free service. Due to non availability of spare part, the OP.2 could not replace the spare. The complainant has also intimated the Asst. Manager of OP.1 three times and lodged complainant on 08.11.2016. It is seen that those facts were not challenged by the OP.2 through his counter in any manner. Further the OP.2 has received the consignment on 06.01.2017 but what was he doing till 23.02.2017 when registered was sent by him. From the above facts it is very much clear that some deficiency in service has been committed by the Ops. However, the defective SLD spare part has been duly replaced by the OP.2 with a new one on 03.03.2017 under warranty.
9. Further the complainant has prayed for Rs.3.00 lacs towards pecuniary loss but as we see from the record the vehicle was running and hence the complainant has not sustained any pecuniary loss. However, for the deficiency in service on the part of the Ops, the complainant must have suffered and hence he is entitled for some compensation and cost and considering the sufferings, we feel a sum of Rs.8, 000/- towards compensation and Rs.2000/- towards costs in favour of the complainant will meet the ends of justice.
10. Hence ordered that the complaint petition is allowed in part and the OP No.2 is directed to pay Rs.8, 000/- towards compensation and Rs.2, 000/- towards cost of litigation to the complainant within 30 days from the date of communication of this order failing which the awarded sum shall carry interest @ 12% p.a. from the date of this order till actual payment.
(to dict.)
