FIRST APPEAL NO. 384 OF 2016

FIRST APPEAL NO. 394 OF 2016

FIRST APPEAL NO. 486OF 2016

FIRST APPEAL NO. 437 OF 2016

         Heard learned counsel for both sides.

2.      Both the appeals arise out of common impugned order passed by the learned District Forum, Khurda at Bhubaneswar  in C.D. Case No.. 377of 2012. Therefore, both the appeals were heard together. This common order shall govern the result of both the appeals.

3.      These appeals are filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum. FA No. 384 of 2016 has been filed by OP No.1, FA No. 394 of 2016 has been field by OP No.2, FA No. 486 of 2016 has been filed by OP No.4 whereas FA No. 437 of 2016 has been filed by the complainant.

4.   The factual matrix leading to the case of the complainant is that the complainant  has purchased  Rhino Rx Royal vehicle for  earning his livelihood with the financial assistance  of OP No.4 to the extent of Rs.5,48,000/- after making down payment of Rs.2,36,404/-, the total cost of vehicle is Rs.7,84,404/- duly purchased from OP No.1. It is alleged inter alia that from the date of delivery of the vehicle by OP No.1 to the complainant, there was defect from time to time occurred to the vehicle and free service has been given and after warranty also the service has been rendered by OP No.1 to the complainant. It is alleged by the complainant that the defects in the clutch plate and other defects occurred in the vehicle resulting time to time service in the vehicle. The complainant alleged that due to repeated defects in the vehicle he was not able to ply the vehicle and as such unable to earn money from the vehicle. Finally, he surrendered the vehicle to OP No.4 - Bank on 27.12.2011 who sold the vehicle in very low price. When the complainant being in need of money, the Bank - OP No.4, the dealer - OP No.1 and OP No.2 - manufacturer gave the defective vehicle for which he approached them for redressal of his grievance but all are in vain. As there is deficiency in service on the part of OPs, he filed complaint before the learned District Forum.

5.      OP No.1 filed written version stating that the complainant is not a consumer because he has used the vehicle for commercial purpose.

6.      OP No.2 filed written version separately stating that there is no manufacturing defect in the vehicle and the complaint has been filed mischievously against him. It is also averred that   as and when vehicle requires minor repair, it was repaired.

7.      OP No.4 filed written version stating that the complainant is not a consumer under the Act as he has used the vehicle for commercial purpose and earned the profit out of that. As per the agreement the complainant paid EMI but the contractual obligation has not been performed by the complainant. Therefore, he defaulted in making payment of the EMIs and accordingly, handed over the vehicle and that was sold in due process of law but still there is outstanding loan amount against the complainant. Therefore, he has no any deficiency in service.

8.      OP No.3 has not participated the hearing before the learned District Forum.

9.      After hearing both parties, learned District Forum passed the following impugned order:-

                   “xxx   xxx   xxx

In the result, the complaint is hereby allowed on contest against the OPs. The OPs 1 & 2 are hereby directed to refund the amount already deposited by the complainant towards margin money amounting to Rs.2,36,404/- (Rupees two lakhs thirty six thousand four hundred four) only. The OPs 1 & 2 are further liable to pay Rs.50,000/- (Rupees fifty thousand) only to the complainant towards loss of income for not earning his livelihood by running the vehicle since the year 2010. Further the OP 4 is hereby directed not to demand any amount from the complainant in respect of the loan agreement for the vehicle in question. The litigation cost is assessed at Rs.5000/- payable by all the OPs jointly & severally to the complainant. The order be executed by the OPs as stated above within a period of one month from the date of communication of this order, failing which the entire amount shall carry an interest @12% per annum till the date of actual payment. In case of failure to comply the order, the complainant is at liberty to execute the same against the Ops in accordance with law. Opposite party is directed to pay to the complainant Rs.25,000/- (Rupees twenty five thousand) only towards cost/compensation/damages within thirty days hence, failing which the amount shall carry 12% (twelve percent) interest per annum till payment.”

10.    Learned counsel for the appellant in FA No. 437 of 2016 submitted that the learned District Forum has passed order to refund the margin money only but it should have passed order to refund the entire EMIs paid to the Bank. He further submitted that the learned District Forum has committed error by not giving adequate compensation for loss to the income of the complainant. He also submits that the learned District Forum ought to have considered to pay the litigation cost at higher amount instead of Rs.5,000/-. He also submitted that the case against the OPs by stating that in every sphere he was harassed. He submitted to allow the appeal by addressing his grievance well.

11.    Learned counsel for the appellant in FA No. 394 of 2016 submitted that the dealer has no any fault because he already attended the services of the vehicle as and when required and there is no manufacturing defect. The usual service was rendered to the vehicle after duly attended same. He also submitted that the job cards clearly reveal that there is no any deficiency in service on their part. However, learned District Forum without considering all these aspects have passed order directing to refund the margin money although there is no any sort of deficiency in service proved. He submitted that when there is no any deficiency in service on the part of OP Nos. 1 and 2 and there is no any expert opinion regarding manufacturing defect, any sort of order against them passed by the learned District Forum is illegal and improper which should be set aside.

12.    Learned counsel for the appellant in FA No. 486 of 2016 submitted that they have already executed the agreement between the Bank and the complainant and accordingly, they have financed the vehicle with condition to repay the EMIs on time. Since it was not paid,  the vehicle was surrendered with OP No.4  and as per agreement,  it was sold at Rs.1,25,000/- and there is no discussion by the learned District Forum to show as to how OP No.4 is  not to demand any further money. It is also submitted by OP No.4 that he was also asked to pay cost of litigation which is not proper. So he submitted that those impugned order against them should be set aside.

13.    Learned counsel for the appellant in FA No. 384 of 2016 did not appear. However, in the appeal memo it is submitted that without any deficiency in service on the part of OP No.1 he was asked to pay the margin money of Rs.2,36,404, Rs.50,000/- towards loss of income  for not earning livelihood and Rs.5,000/- towards cost of litigation. The submission of learned counsel for OP No.1 is essentially the submission of learned counsel for OP No.2. So, no further elaboration is required.

14.    Considered the submission of learned counsel for the respective parties and perused the DFR including the impugned order. Main issue in this case whether all OPs are jointly or individually liable for deficiency in service on their part.

15.    After going through the marathon hearing of the case, it is admitted fact that the vehicle was financed by OP No.4 to  complainant  to purchase it by the complainant on 10.3.2010 for Rs.7,84,404/-. It is also admitted fact that  OP No.4 has paid Rs.5,48,000/- to the dealer - OP No.1 after making down payment of Rs.2,36,404/- by the complainant  to the OP No.1  to purchase the vehicle. It is not in dispute that the vehicle was delivered to the complainant by OP Nos. 1 and 2 on receipt of the aforesaid amount. It is also not in dispute that time to time the vehicle has been attended by OP nos. 1 and 2 towards repair. After going through the job cards produced by both the parties, we find that the spare parts of the vehicle have been changed from time to time when the vehicle gave defects and mostly the clutch  plate defects  occurred on many occasions and the same was also noted by the learned District Forum. Clutch plate is one of the great defects in the vehicle but is not serious one to show the manufacturing defect of the concerned vehicle. At the same time, it appears from the job cards that the vehicle was also running. The job card shows that in order to keep the vehicle fit for plying, it has been brought and repaired for other defects like engine oil change and general service and general check up etc. There is no major repair required for vehicle. Hence, there is no manufacturing defect. But, the vehicle did not run properly because of the frequent check up and repair by the dealer. However, after the warranty period the vehicle also gave defects. But from the evidence of complainant and documents the facts reveals that the vehicle did not give the required service for which it was surrendered to OP No.4. So we agree with the finding of the learned District Forum that there is deficiency in service lying with the dealer - OP No.1 and the manufacturer - OP No.2 with regard to the proper service so as to find out what is the defect in vehicle for not running continuously.

16.    Apart from this, we find admittedly the Bank - OP No.4 has sold the vehicle at price of Rs.1,25,000/- whereas the vehicle was within one and half years  old only. OP Nos. 1, 2 and 4 have not engaged any valuer to assess the upset price in auction proceeding.

17.    In view of above discussion, we are of  the view that the vehicle has been sold without taking any actual price or value causing burden on complainant to liquidate the loan amount. There is thus deficiency in service on the part of the Bank - OP No.4 proved. Once the borrower/complainant has taken the loan amount and used the vehicle which is not the property of the dealer or the Bank or the manufacturer, it is the property of the complainant. So complainant should have taken care of the vehicle instead of requiring its service from time to time unless major defect occurs. Hence, we are of the view that the learned District Forum has considered the case with proper perspectives and there is nothing wrong on it. However, issue whether the vehicle was running for commercial purpose raised by the appellant dealer,   manufacturer and financer, but in view of decision of Hon’ble Apex Court in Laxmi Engineering Works vrs. PSG Industrial Institute reported in 1995 AIR SC 1428 and evidence of complainant, we do not find this vehicle was used by the complainant for commercial purpose as explained under provisions of the Act.

18.    In view of above circumstances, we do not want to interfere with the finding of the learned District Forum. Therefore, the impugned order is confirmed and all the appeals are dismissed. No cost.

          DFR be sent back forthwith.

Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.