ORDER BY HON’BLE PRESIDENT- MR. P.K. PADHI:
JUDGMENT
Complainant has filed this consumer complaint U/s.35 of C.P. Act, 2019 seeking following reliefs;
“Direct the opposite parties to replace the vehicle a current manufacture in the year 2021 instead of old vehicle i.e. 2017, refund the amount, rectify the manufacturing year of said vehicle in different paper i.e. including insurance paper, pay cost of Rs.2,00,000/- towards mental agony, harassment and cheating by the opposite parties and financial loss and pay cost of Rs.10,000/- towards expenditure”.
The brief fact of the case is that, the complainant has purchased SWARAJ 744 FE Tractor, 48hp, 3 cylinders with Exide Battery and other tool kits vide Engine No.43 1024/SYA04119, Chassis No.WSCA4062216342 on dtd.08.7.2021 vide invoice No.R-43/21-22 with the consideration amount if Rs.7,03,184/- out of which the complainant paid Rs.2,20,000/- by cash as advance payment towards cost of said vehicle to opposite party No.1 on 26.6.2021 and the rest amount being financed by opposite party No.3. The said vehicle was insured by opposite party No.4 and registered under the Jagatsinghpur RTO vide Regd. Certificate No.OD21M6857. The opposite party No.1 delivered the said tractor on 01.7.2021 at Cuttack Godown and assured to deliver all papers of said vehicle at Tritol servicing centre. The technical problem arises on the way, so the complainant informed the matter to the dealer and the dealer assured to remove problem at Tirtol servicing centre. The complainant arrive at Tirtol servicing center, the worker of the service center remove the problems by doing some adjustment, but did not provide any paper of vehicle as per prior commitment by the dealer to the complaint and the dealer manage to convinced to the complainant the paper will be send later to the complainant home but did not supply till date. The complainant installed other accessories of vehicle to use on 02.7.2021 and the tractor became breakdown after 15 minutes of ploughing on 3rd July, 2021. The complainant informed the matter to the dealer and one mechanic arrived at complainant’s premises on 5th July, 2021 and found the pump of the said vehicle has some trouble and expressed it will be replaced shortly. On 8th July, 2021 the pump was replaced by the mechanic. Thereafter the said vehicle worked approximately 60 hours and became breakdown on 16.8.2021 but no service/steps taken for removal of defect of the tractor.
The dealer provided papers of vehicle in the month of September,2021 and the complainant came to know from the RC Book that the said vehicle was manufactured in the year 2017 whereas the contract was made for a new vehicle. The said vehicle was shown to have manufactured in the year 2021 as furnished by insurance company. The price of new vehicle was paid by the complainant but the dealer sold an old vehicle manufactured in year 2017 and it shows that the said vehicle is an old one and used vehicle has been painted by dealer to cheat the complainant. Further the said vehicle delivered on 1st July, 2021 but in invoice No.R-43/21-12 shows the date of invoice 08.07.2021. the sur-name of the complainant also wrongly furnished in registration certificate and also different year of manufacture has been furnished in RC Book is 2017 and in the insurance paper as 2021 for which complainant complained many times but the opposite parties did not comply with the same till yet.
Notice was issued to opposite parties on 01.02.2021 by Regd. Post but none of opposite parties appeared except opposite party No.4 and were set ex-parte on 01.6.2022.
The complainant has purchased the tractor for maintenance of his livelyhood who is a farmer but he has been cheated by the opposite parties.
The complainant approached for a new tractor paying consideration of Rs.2,20,000/- on 26.6.2021 to opposite party No.1, who has delivered the vehicle on 01.7.2021 but invoice was issued on 08.7.2021 and the year of manufacture is shown as Jan.2017 in the R.C. Particulars where as in the application form the registration submitted by the opposite party No.1 the month and year of manufacture is mention the year 2020. The vehicle started giving problem from the beginning before selling and registration. We are surprised to see that in Jagatsinghpur several vehicles are delivered to the public without registration when Rule 41 of Odisha Motor Vehicle Act specifically laid down as under;
S.41.Registration,how to be made.-(1)An application by or on behalf of the owner of a motor vehicle for registration shall be in such form and shall be accompanied by such documents, particulars and information and shall be made within such period as may be prescribed by the Central Government.
Provided that where a motor vehicle is jointly owned by more persons than one, the application shall be made by one of them on behalf of all the owners and such applicant shall be deemed to be the owner of the motor vehicle for the purposes of this Act.
(Provided further that in the case of a new motor vehicle, the application for registration in the State shall be made by the dealer of such motor vehicle, if the new motor vehicle is being registered in the same state in which the dealer is situated).
Now the question is whether the complainant is a consumer. Since the complainant has paid consideration and purchased the vehicle for his better livelihood being a farmer we held that complainant is a consumer as stipulated Rule 2 (7) of Consumer Protection Act.
Whether the vehicle was defective. The vehicle started problem immediately after his delivered and most astonish fact is that defects started from 03.7.2021 where as invoice was issued on 08.7.2021 and defect pointed out could not be rectified for which the complainant after running pillar to post approached this Commission on 29.10.2021 and this Commission vide order dt.30.11.2021 directed as under;
“Heard the complainant on the petition filed U/s.38 (8). Perused the documents available on record supported with affidavit. It is found that the complainant has a primafacie case against the opposite party. Issue notice to the opposite party to file objection if any. However considering the facts and circumstances of the case the opposite party is directed to take back the vehicle SWARAJ 744 FE Tractor bearing Regd. No.OD-21-M-6857 and not to demand any monthly installment adding with additional interest and also not to take any coercive step against the complainant in respect of said vehicle till dt.15.12.2021.” As per the direction the opposite party No.3 has received and taken back the vehicle on 27.7.2022 mentioning misc case No.146/2022 but did not appear before this Commission.
As such the vehicle was defective as defined under section 2 (10) of Consumer Protection Act, 2019.
The grievance of the complainant is that the vehicle is a second hand vehicle and the opposite party No.1 has cheated him and the opposite party No.3 in connivance with opposite party No.1 has duped the complainant. As it appears from the R.C. Book the vehicle is of the year 2017 (January) and the vehicle was sold on 08.7.2021 and before that the opposite party No.1 has received Rs.2,20,000/- on 26.6.2021 and handed over the vehicle on 01.7.2021 as such the action of opposite party No.1 is in complete of violation of Motor Vehicle Act and also amounts to unfair trade practice as defined U/s.2 (47) of Consumer Protection Act, 2019.
The complainant has paid Rs.2,20,000/- to opposite party No.1 and returned the vehicle on 27.7.2022 as per order dt.30.11.2021 of this Commission in misc case No.146/2021. The vehicle was found defective from beginning and the complainant has not paid a single pie towards the installment to opposite party No.3 for which opposite party No.3 has demanded Rs.5,35,553.73 paisa on 13.01.2022 and thereafter different amounts in different notices as per the records filed by the complainant. Now the question arises whether the opposite parties No.1 & 3 are responsible for unfair trade practice or not. Selling old vehicle of the year 2017 stating it to be new and which is found defective amounts to unfair trade practice and we held opposite parties No.1 & 3 are responsible for the same. Though the manufacturer opposite party No.2 has been made party has not appear and not filed written version. The opposite party No.4 is also the sister consideration of opposite party No.3 has insured the vehicle and opposite party No.4 has nothing to say in the matter with regard to defective vehicle, manufacturing defective, unfair trade practice, sell of old vehicle showing the it new has no connection with opposite party No.4.
We have already passed about ten orders in which regularly vehicles have been delivered without registration and late registration and it cannot be possible without the cooperation of RTO Office. When few cases are coming to the Court we apprehend hundreds of unregistered vehicle particularly Tractors have not been registered in Jagatsinghpur RTO for which earlier we have directed to our registry to send the order to Directorate Vigilance Cuttack, Vigilance Office, Jagatsinghpur and STA Cuttack but the order of similar cases have not been communicated by the registry for which we direct to send all orders including this order to the authorities mention above.
It is the financer who is the owner of the vehicle till loan is repaid. So it was the duty of the then Manager to purchase good condition vehicle without defect but complainant was handed over an old vehicle of 2017 is an unfair trade practice for which the then Branch Manager is squelchy responsible.
Now the question is how much the complainant should be compensated. The opposite parties No.1 & 3 are jointly and severally responsible for cheating the complainant for which we direct the opposite party No.3 who has taken back the vehicle will not charge any amount towards the loan and it is to be treated as the complainant has no loan in respect to this particular vehicle.
The opposite party No.1 who has received Rs.2,20,000/- for providing the vehicle but provided old and defective vehicle for which we direct the opposite party No.1 to refund the amount received i.e. Rs.2,20,000/- along with 12% compound interest from the date of deposit i.e. 26.6.2021 to till the date of payment.
The opposite parties No.1 & 3 shall pay Rs.50,000/- each to complainant as compensation for defective goods and unfair trade practice and not performing their duty properly. If the amounts shall not be paid within 45 days from the date of receipt of this order then Rs.500/- per day to be paid by each (means Rs.500X2= Rs.1,000/-) opposite parties. We also impose cost of Rs.10,000/- which is to be paid by opposite parties No.1 & 3 as cost of litigation. With the aforesaid observation and direction the consumer complaint is disposed of.
