IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 58/S/2012.                          DATED : 09.06.2016.            

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

                      MEMBER                : SRI PABITRA MAJUMDAR.

COMPLAINANT                 : NIMAI DAS,

                                                              S/O Lt. Makhan Ch. Das,

  Resident of Sarada Pally,

  P.O.- Rabindra Sarani, P.S.- Siliguri,

  Dist.- Darjeeling.

OPs                 1.                     : OSL AUTOMOTIVE PVT LTD.,

  (A company registered under Companies Act),

  P.C. Mittal Bus Terminus,

                                                  P.O.- Sevoke Road, Siliguri – 734 001.

2.                     : AREA MANAGER,

  Tata Motors Ltd.,

  5^th Floor, Apeejay House, Block ‘C’,

  15^th Park Street, Kolkata – 700 016.

3.                     : TATA MOTORS LTD.,

  One Indiabulls Centre,

  Tower 2A & B, 20^th Floor, 841,

  Senapati Bapat Marg, Jupiter Mills Compound,

  Elphinstone Road (West),

  Mumbai – 400 013.

4.                     : TATA MOTORS FINANCE LTD.,

  Corporate office at Building A, 2^nd Floor,

  Lodha I-Think Techno Campus,

  Off. Pokharan Road 2,

  Thane (West), 400 607.

FOR THE COMPLAINANT         : Sri Sudama Mahato, Advocate.

J U D G E M E N T

Sri Biswanath De, Ld. President.

The complainant’s case is that he purchased a truck from OP No.1 for Rs.9,33,887/- on 24.03.2011, and OP No.3 was the manufacturer.  The complainant had obtained a loan from OP No.4 through OP No.1, to purchase the vehicle, and OP No.1 took Rs.1,85,000/-, as down payment on loan

Contd......P/2

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account from the petitioner.  The petitioner entered into an agreement with OP No.4 on 26.03.2011.  The loan contract letter shows the initial hire amount as Rs.1,63,887/-, and finance amount as Rs.7,70,000/-, with finance charge of Rs.1,86,956/-, amounting to a total of Rs.9,56,956/-.  The EMI was fixed at Rs.27,917/-, for a period of 4 years.  The vehicle was hypothecated under OP No.4.  The complainant claims that the OP No.1 did not give any explanation regarding on which head the balance amount of Rs.21,113/- was utilized by the OP Nos.1 & 4.  The vehicle was insured through OPNo.1 under the Future Generali India Insurance Company Ltd., and the premium of Rs.22,800/- was received by OP No.1 on 24.03.2011, showing the value of the vehicle as Rs.8,87,192/-, in the cover note, but the value of the vehicle in the policy certificate was shown as Rs.8,63,000/-, only and total premium charge was shown as Rs.19,973/-.  The OP No.1 did not give any explanation for the excess amount of Rs.2,827/-, taken on account of insurance.  On 28.03.2011, the OP No.1 took a further sum of Rs.24,973/-, from the complainant on account of the insurance of the said vehicle, saying that the earlier sum was for the financial year 2010-2011, and the later sum was for the financial year 2011-2012, and the OP No.1 issued two policy certificates to the petitioner.  Problems plagued the vehicle from the very beginning, and the petitioner discovered that the unladen weight of the vehicle is 3885 Kgs. which is 535 Kgs. more than the unladen weight as disclosed by OP No.3.  The excess weight results in greater fuel consumption, and decrease in the life span of the vehicle, which has undergone repairs on several occasions.  Since, December, 2011, the vehicle is not fit for driving, and the complainant informed OP No.1 about the matter, but to no avail.  Even notice through Ld. Advocate of the complainant to OP No.1 proved fruitless.  Efforts at pre-litigation mediation before The Assistant Director, Consumer Affairs & Fair Business Practices, Jalpaiguri Divisional Office, Siliguri, did not succeed due to non-cooperation of the OPs.  The complainant thus filed this case submitting that the manufacturing defect caused the vehicle to be taken of the road, and accordingly, the liability is on the OP Nos.1, 2 & 3 to meet the premium due to the OP No.4.  The complainant submits that he has suffered financial loss of Rs.1,85,000/-, as down payment for purchasing the vehicle, and Rs.47,773/- as insurance premium, and Rs.1,95,772/- as EMI paid for the vehicle, and about Rs.2,00,000/- on maintenance of the vehicle.  He claims that the loss sustained by him was due to sale of defective vehicle by the OP Nos.1, 2 & 3,

Contd......P/3

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and for their refusal to replace the defective vehicle after they were informed of the matter by the complainant.  The complainant thus prays that the OP Nos.1, 2 & 3 be directed to replace the defective vehicle along with refund of the amounts paid by way of down payment, and as insurance premium, and as EMI, and for realization of the loss sustained by him, along with some other reliefs.      

The OP No.1 has contested the case filing written version denying inter-alia all the material allegations as raised by the complainant.  The positive case of the OP No.1 is that the complainant is not a consumer as per Consumer Protection Act, 1986.  Accordingly, question of deficiency in service does not arise. 

The OP No.4 has filed written version denying inter-alia all the material allegations as raised by the complainant.  OP No.4 has stated that complainant purchased the vehicle registration No.WB-73 C 0128, total cost was Rs.9,56,956/-.  Complainant paid Rs.1,63,887/-.  The OP’s further case is that OP No.4 issued repossession notice dated 25.02.2012 to the complainant and thereafter matter was referred before Ld. Sole Arbitrator who passed order directing the OP No.4 to take repossession of the said vehicle and to keep the said vehicle in safe custody of the OP No.4.  It is to be mentioned that complainant did not comply the terms conditions of loan agreement dated 21.08.2012 and wilfully failed to pay the EMI as per agreement.  It is also the case of the OP No.4 is that the complainant purchased the vehicle on loan cum hypothecation basis, but the complainant did not repay the loan amount by way of making monthly instalments as per agreement.  The main objection of the OP No.4 is that the complainant did not repay the loan for which the vehicle has been repossessed as per award of Arbitrator. 

It is to be mentioned that OP Nos.2 & 3 did not take appropriate step regarding their case nor the plea of absence of present of OP Nos.2 & 3 has been taken by OP No.1 & OP No.4.  So, indirectly OP Nos.1 & 4 supported the case of the OP Nos.2 & 3.         

Complainant has filed the following documents:-

1.       Xerox copy of Registration Certificate of the vehicle being No.WB-73C/0128 in the name of petitioner. 

2.       Xerox copy of Cover Note No.C0772819 of Future Generali India  dated 24/03/11 of premium Rs.22,800/- with policy certificate of Rs.19,973/-.

Contd......P/4

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 3.      Xerox copy of another policy certificate of Future Generali India dated 28/03/11 of same vehicle of premium of Rs.24,973/-.

4.       Xerox copy of some other bunch of documents.

          Complainant has filed evidence-in-chief.

Complainant has filed written notes of argument.

OP Nos.1 & 4 have also filed examination-in-chief and written notes of argument.

OP Nos.1 & 4 have filed some documents showing the non-payment of the instalment amount.

OP No.1 has filed 16 nos. of case law in their favour. 

Points for decision

1.       Whether there is deficiency in service on the part of the OPs ?

2.       Whether the complainant is entitled to get any relief as prayed for ?

Decision with reason

In the written argument filed by the complainant in para 12 the complainant argued that OP No.4 were given award to take repossession of the vehicle and to keep the said vehicle in safe custody of the OP No.4, but till date no attempt have been made by the OP No.4 to repossess the vehicle, the vehicle is lying in the premise of the Petitioner for last 3 (three) years unmoved for which the engine might have ceased.  It also appears from the statement of both sides that there is no report showing the manufacturing defect of the vehicle in question.  This plea of manufacturing defect has been taken by the complainant.  But complainant deliberately kept this Forum from the question to prove the defect of the vehicle in question. 

After going through the evidence and material on record, it appears that we find no reason to make conclusion regarding the truthfulness of allegation of the complainant.

Documents filed by the complainant and evidence-in-chief filed by the complainant and reply to the questions of OPs, no where it can be seen or it has been shown by the complainant that complainant has proved the manufacturing defect of the purchased goods.  There is specific Provision in Section 13 (c) of the Consumer Protection Act, 1986, regarding manner of dealing of such type of cases where the allegation of defect is raised by the

Contd......P/5

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complainant.  But in this case in our hand there is no such expert’s opinion to make conclusion regarding defect of the said vehicle. 

Accordingly, after deep deliberation over the material on record, this Forum is of opinion that the complainant has failed to prove his case by cogent evident. 

Therefore, the case fails.

Hence, it is

                    O R D E R E D

that the Consumer Case No.58/S/2012 is dismissed on contest against the OPs, but without any cost. 

Copies of this judgment be supplied to the parties free of cost.

                       -Member-                                  -President-