West Bengal

Birbhum

CC/15/13

Balal Chatterjee - Complainant(s)

Versus

Proprietor, Beekay Auto Pvt Ltd - Opp.Party(s)

Sanjit Kr Acharya

16 Jan 2018

ORDER

The case of the complainant Balai Chatterjee, in brief, is that he purchased one Maruti Swift Dzire VXI BS IV – DMR LCDZ, being engine No. KIZMN1437031, Chasis No. MA3EJKDIS00578115 valued at Rs. 5,59,566.11p. from the O.P No.1 for his personal use. He paid Rs. 1,86,966/- by cheque dated 19.08.2014 in favour of the O.P No.1 as down payment against the total value of the vehicle and rest amount was paid with financial assistance of O.P No.5. O.P No.3 and 4 are manufacturers, O.P No.1 is dealer, O.P No.2 is authorized centre and O.P No.5 is the financer of the complainant in respect of the alleged vehicle.

            It is the further case of the complainant that on 05.12.2014 the complainant along with his wife was going to their working place by availing said Maruti Car, but all on a sudden the front right hand side tyre was blasted with tremendous sound and inconsequence of which the vehicle dashed a tree and obtained several damaged in the same. The complainant as well his wife also sustained injuries due to said accident.

            It is the further case of the complainant the condition of the place of accident of the road was good and the vehicle was with speed of 60K.M./hour only. But inspite of that accident happened due to manufacturing defect in the vehicle of the tyre of the same.

 

            It is the next case of the complainant is that he informed O.P No.1, 2 and 3 about the accident by telephone as well as in writing and also demanded Rs. 10 lakh as compensation for damaged, mental agony and harassment. But they did not pay any heed.

            It is the further case of the complainant is that the acts of the O.P No.s1 to 4 amount to deficiency in service as well as unfair trade practice.

            Hence this case for directing the O.Ps to replace damage and defective vehicle by a new one and to pay Rs. 1 lakh as compensation with other reliefs.

            O.P No.1, 2, 3 and 4 i.e. Dealers and Manufacturers of the Maruti Car in question have contested the case by filing written version denying all material allegations of the complaint contending inter alia, that the case is not maintainable and the complainant has no cause of action to bring this case.

            It is the specific case of the O.P No. 1 to 4 that there was no manufacturing defect in the vehicle in question. More so, as per clause 4(2) of the warranty, tyres and tubes are not covered under warranty obligation and the case is liable to be dismissed against them.

            O.P No.5 IDBI Bank has also contested the case denying all material allegation of the complaint.

            It is the specific case of the O.P No.5 that they are mere financier and not service provider. They are not liable for any accident or manufacturing defect of the vehicle.

            It is the further case of the O.P No.5 that the complainant has already sold out the said vehicle to somebody else and at present he is not owner of the same and ultimately prayed for dismissal of the case.

Considering the complaint and other materials on record with think following points are to be decided in this case.

1. Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service or unfair trade practice on the part of the O.P.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant Balai Ch. Chatterjee has filed examination in chief. He has been cross examined by the O.P No.1 in part. He has also field some documents. 

O.Ps have not filed any oral or documentary evidence.

The case is taken up for passing order on merit as per material available in record.

Point No.1:: Evidently the complainant purchased one Maruti Swift Dzire VXI BS IV – DMR LCDZ, being engine No. KIZMN1437031, Chasis No. MA3EJKDIS00578115 valued at Rs. 5,59,566.11p. from the O.P No.1.

So, the complainant is a consumer u/s 2(1)(d)(ii) of the C.P. Act.

Point No.2:: Total valuation of the case is Rs. 10,15,000/- which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.

            The O.P No.2 and 5 have office within jurisdiction of the Forum.

So, this Forum has pecuniary and territorial jurisdiction to try this case.

Point No. 3 and 4:: Both points are taken up together for convenience of discussion as they are related to each other.

The complainant Balai Chatterjee in his evidence that he purchased one Maruti Swift Dzire VXI BS IV – DMR LCDZ, being engine No. KIZMN1437031, Chasis No. MA3EJKDIS00578115 valued at Rs. 5,59,566.11p. from the O.P No.1 for his personal use. He paid Rs. 1,86,966/- by cheque dated 19.08.2014 in favour of the O.P No.1 as down payment against the total value of the vehicle and rest amount was paid with financial assistance of O.P No.5. O.P No.3 and 4 are manufacturers, O.P No.1 is dealer, O.P No.2 is authorized centre and O.P No.5 is the financer of the complainant in respect of the alleged vehicle.

He further stated that on 05.12.2014 the complainant along with his wife was going to their working place by availing said Maruti Car, but all on a sudden the front right hand side tyre was blasted with tremendous sound and inconsequence of which the vehicle dashed a tree and obtained several damaged in the same. The complainant as well his wife also sustained injuries due to said accident. The condition of the place of accident of the road was good and the vehicle was with speed of 60K.M./hour only. But inspite of that accident happened due to manufacturing defect in the vehicle of the tyre of the same.

He further stated that he informed O.P No.1, 2 and 3 about the accident by telephone as well as in writing and also demanded Rs. 10 lakh as compensation for damaged, mental agony and harassment. But they did not pay any heed.

But PW1 Balai Chatterjee was cross examined in part by the O.P No.1 and O.P No. 2 to 5 have not got any opportunity to cross examine to him.

Ops have not adduced any oral or documentary evidence.

But the complainant is to succeed on the strength of his own case and not on the lacuna of the opponent.

Certainly the consumer complaint case is to be decided on merit on the basis of materials available in the record.

In the present case the complainant Balai Chatterjee has submitted his evidence on affidavit on 20.05.2016. His evidence was tendered on 04.10.16 and on self-same date he was cross examined by O.P No.1 in part and his cross examination was deferred.

 

Thereafter the complainant was taking adjournment one after another and on 30.05.17 his prayer for adjournment was allowed at a cost of Rs. 500/- to the O.Ps.

On 12.7.17 prayer for time of the complainant was allowed due to heavy rain.

Thereafter the complainant never appeared before the Forum to face cross examination and to pay cost of Rs. 500/- and thereby flouted the order of the Forum. Lastly the record is taken up for passing final order on merit.

Now let us consider evidenciary value of the evidence of the PW1 and documents submitted by him.

It is settled law that it is right of every litigant in a suit unless he waived it, to have an opportunity of cross examining, whose testimony is to be used against him.

In this context reliance may be upon reported in 11 Calcutta Law Journal (Chattoo Kurmi =Vs.= Raja Ram).

Considering over all mater into consideration and materials on record we think oral evidence with documents tendered by the complainant is no evidence in the eye of Law as the O.Ps have not got opportunity to cross examine the complainant and unable to rebut his evidence and the complainant is failed to prove his case by adducing cogent evidence.

Thus, both the points are decided against of the complainant. Case fails.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 13/2015 be and the same is dismissed on contest with out any order as to cost.

Copy of this order be supplied to the parties each free of cost.