Tripura

West Tripura

CC/13/82

Sri Sukanta Debnath - Complainant(s)

Versus

Proprietor of INDU MOTORS and others. - Opp.Party(s)

Mr.S.Roy.

20 Mar 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA

    CASE NO:  CC- 82   of  2013

     Sri Sukanta Debnath,
     S/O- Sri Kamala Debnath,
     Town Badharghat,
     Agartala, West Tripura.         ...........Complainant.

     ______VERSUS_____

           1. Proprietor of Indu Motors,
6, Sakantala Road,
Agartala,West Tripura.

           2. General Manager, 
Hindustan Motors Ltd.,
Birla Tower, 8th Floor, 
         25 Burakhamba Road,
New Delhi-110001.                      .........Opposite Parties.
    
                    __________PRESENT__________

 SRI S. C. SAHA
PRESIDENT,
  DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM,
      WEST TRIPURA, AGARTALA. 

SMT. B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

SHRI B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 
  WEST TRIPURA,  AGARTALA.

C O U N S E L

For the Complainant       : Sri Subrata Roy,
                          Advocate. 
                           
For the O.Ps No. 1        : Sri Debasish Dutta,
                 Advocate.

For the O.P. No. 2        : Sri Amrit Lal Saha,
                  Sri Kajal Nandi,
                  Sri Joydeep Paul and 
                  Sri Bhabatosh Debnath, 
                  Advocates.
        

JUDGMENT  DELIVERED  ON : - 20.03.15.

 

J U D G M E N T

        This is an complaint U/S 12 of the Consumer Protection Act, 1986 (herein after referred to as 'the Ac') filed by the complainant, Sri Sukanta Debnath of Town Badharghat, Agartala, West Tripura, against the O.Ps, namely Proprietor of Indu Motors, Sakantla Road, Agartala, West Tripura and the General Manager, Hindustan Motors Ltd., New Delhi over a consumer dispute alleging negligence and deficiency in rendering service on the part of the O.Ps.

2.        The fact of the case as gathered from the record is that the complainant had purchased one mini truck of model no- HM SHIFENG WINNER bearing chasis no. MA7MT15DLKU000552 and engine no. 6EPLK 102053 manufactured by Hindustan Motors Ltd. from the O.P. No.1,  Indu Motors, the dealer, for Rs.4,16,376/- obtaining loan from SBI, TLA House Branch, Agartala on 02.05.11. After taking delivery of the vehicle, it started giving troubles. He brought this fact to the notice of the O.P. No.1. But he did not take any effective steps to rectify the defect of the vehicle. He issued letters to the O.P. No.1  on a number of times but he did not respond to his letters. Finding no other alternative, he served an advocate's notice upon the O.P. No.1 on 06.01.13. It is alleged that due to continuous troubles in engine of the vehicle he could not ply the vehicle  on the road uninterruptedly for which he suffered huge financial loss. As a result, he could not repay the loan installments payable to the bank. According to the complainant, the conduct of the O.Ps constitutes negligence and deficiency in service. Hence, it is urged to direct the O.Ps to replace the defective engine of the vehicle by a new one or to refund the price of the vehicle with interest.

3.        The O.P. No.1, Indu Motors, the dealer, though recorded appearance, yet he ultimately did not contest the case.

4.        The complaint was contested by the O.P. No.2, Hindustan Motors Ltd., the manufacturer of the vehicle by filing written objection stating, interalia, that the relationship between the dealer and the company is a principal to principal basis and the dealer is not and shall not be the agent or employee of the company for any purpose and they shall have no right or authority to assign or create any obligation of any kind, express or implied, on behalf of the company to bind the company in any way, to accept any service or process upon the company or to receive any notice in any nature what so ever. Further that, as per warranty clause the complainant was supposed to place the vehicle with the service centre of the O.P. No.1 after it runs 5000 km from the date of delivery or 2  months which ever is earlier. But it would be evident from the job card that he brought the vehicle for servicing at the service centre firstly on 11.10.11 in violation of the terms of warranty. It is also asserted that as per warranty provided by the company, warranty is only applicable for repair or replacing of any part for manufacturing defect and not the entire vehicle. It is denied that they were negligent and deficient in rendering service in any manner what so ever. 

5.        In support of the claim, the complainant has examined himself as P.W. 1 and has proved and exhibited the following documents:
    Exhibit 1: Advocates notice dated 06.07.13 
    Exhibit 2: Policy of Insurance,
    Exhibit 3: Sale certificate issued by the O.P. No.1,
    Exhibit 4: Satisfaction certificate dated 02.05.11,
    Exhibit 5: Copy of letter of complaint dated 06.09.11,
    Exhibit 6: Copy of quotation dated 05.02.11,
    Exhibit 7: Money receipt issued by the O.P. No. 1,
    Exhibit 8:  Certificate of registration,
    Exhibit 9: Copy of letter of complaint dated 29.08.11,
    Exhibit 10: Lease agreement dated 27.09.13,
    Exhibit 11: Letter dated 29.01.14 issued by SBI, TLA House
    Branch,

6.        No evidence either oral or documentary has been adduced on behalf of the O.P. No.2.
        
        FINDINGS:
7.        The points that would arise for consideration in this proceeding are:
        (i) Whether the mini truck bearing engine no. 6EPLK 102053 purchased by the complainant from the O.P. No.1, the dealer, had been suffering from inherent manufacturing defect. If so, whether the O.Ps are liable to replace the defective engine of the vehicle by a new one or to refund the price of the same;
        (ii) Whether the O.Ps are guilty of negligence and deficient in rendering service.

8.        We have already heard the arguments advanced by the learned counsel appearing for the parties. Also perused the pleadings, documents on record and the evidence adduced by the complainant meticulously.

9.        It is the case of the complainant that he had purchased a mini truck of HMSHIFENG WINNER model manufactured by the Hindustan Motors Ltd. for Rs.4,16,376/-,  of which he made down payment of Rs.1,10,000/-, under hire purchase agreement taking loan from SBI, TLA House Branch on 02.05.11. Soon after taking delivery of the vehicle, it started giving troubles. He brought this fact to the notice of the seller (O.P. No.1) and placed the vehicle with his service centre on 3 occasions but no fruitful purpose was served. As he was prevented from plying the vehicle on the road uninterruptedly, due to fault in the engine, the monthly loan installments of the bank have fallen due. Finding no other alternative, he served an advocate's notice upon the O.P. No.1 but he did not respond to the notice. 

10.        On the other hand it is the plea of the O.P. No.2, Hindustan Motors Ltd., the manufacturer of the vehicle, is that the relationship between the dealer and the company is a principal to principal basis and the dealer is not and shall not be the agent or employee of the company for any purpose and they shall have no right or authority to assign or create any obligation, of any kind, express or implied on behalf of the company to bind the company in any way, to accept any service or process upon the company or to receive any notice in any nature what so ever. In support of the above contention, they have relied upon the decision of the Hon'ble Supreme Court in Indian Oil Corporation Vrs. Consumer Protection Council, Kerela & Anr. Reported in (1994) 1SCC 397 and the judgment of the Hon'be National Commission passed in Maruti Udyog Vrs. Narender Prasad Sinha reported in [II)(2009) CPJ 295(NC]. 

11.        Relying upon the ratio of law laid down by the Hon'ble Supreme Court and the Hon'ble National Commission in the above cited decisions, we hold that in view of the specific provision of the dealership agreement entered into by the parties, the relationship between the manufacturer (O.P. No.2) and the dealer (O.P. No.1) was on principal to principal basis and not of principal and agent. Therefore, the manufacturer was not liable for acts of his distributor once delivery of the vehicle is given to the dealer after realizing the price from the dealer. 

12.        Another point agitated by the O.P. no.2 is that as per terms of warranty provided by the company, the warranty is applicable for repair or replacement of any part for manufacturing defect and not the entire vehicle or in the alternative for refund the price of the vehicle. 

        We are unable to take into consideration the factual aspects of the matter raised by the O.P. no.2 in their written objection since they led no evidence in support of the averments made in their pleadings.

13.        The O.P. No.1, the dealer, who happens to be an important party to the proceeding, did not contest the case by filing written objection or adducing any evidence. Hence, the allegations levelled against the O.P. No. 1 by the complainant have remained unrebutted. Until contrary is proved, we will have to rely upon the evidence adduced by the complainant as P.W.1.

14.        On perusal of the documents on record, we find that after taking  delivery the complainant placed the vehicle with the service centre of the O.P. No.1 on 3 occasions - firstly on 11.10.11, secondly on 21.10.11 and finally on 04.11.11. It is true that as per terms of warranty the vehicle was supposed to be placed with the service centre of the O.P. No.1 for first servicing after plying of the vehicle for 5000 km or 2 months which ever occurs earlier. But the complainant placed the vehicle for first servicing after more than 5 months from the date of purchase of the vehicle which is contrary to the terms of warranty.

15.        We do not agree with the plea taken by the complainant that the vehicle had been suffering from inherent manufacturing defect because of the fact that after taking delivery the subject vehicle covered a considerable distance. Had there been any inherent mechanical defect in the vehicle, certainly it would not have covered such a long distance. At the same time it does not escape our notices that within a short span of taking delivery of the vehicle it was placed with the service centre of the O.P. No.1 on 3 dates with various complaint in engine. In our opinion, though the vehicle did not suffer from inherent manufacturing defect, yet it can be unhesitantly said that there was some major technical difficulties in the engine, for which it would give continuous troubles while plying on the road. 

16.        The most astonishing part of this case is that during the course of proceeding the complainant filed an application before the Forum on 08.09.14 praying for issuance of a Commission for local inspection of the vehicle to ascertain whether the chasis number and engine number of the vehicle mentioned in the sale certificate issued by the O.P. No.1 are identical to that of the one engraved on the chasis and engine of the vehicle.

17.        Having heard the learned counsel appearing for the complainant and the O.P. No.2, the Hindustan Motors Ltd., an Advocate Commissioner was appointed by this Forum to ascertain on whether the engine number and chasis number mentioned in the sale certificate matched to that of the numbers engraved on the engine and chasis of the vehicle. Consequent upon the writ issued by the Forum, the Commissioner held inspection of the subject vehicle in presence of the learned counsel for the complainant and the O.P. No.2 and submitted his report on 10.11.14. The  Commissioner in his report clearly stated that the chasis number of the vehicle mentioned in the sale certificate and that of the number engraved on the chasis of the vehicle was one and the same. But the engine number was fully different from each other. In the sale letter, the engine number was mentioned as 6EPLK 102053 whereas the number of engine fitted in the subject vehicle was engraved as 6EPCL 103015. From the report of the Commissioner it is crystal clear that the engine number of the vehicle mentioned in the sale certificate  by the O.P. No.1 is totally different from that of the number engraved in the engine fitted in the vehicle. We are at a loss to understand how this had happen. There may be one possibility that the original engine installed in the subject vehicle by the manufacturer might be replaced by the dealer with a defective one at the time of giving delivery of the vehicle to the complainant for wrongful gain. Had the O.P. No.1 contested the case, it would have been made clear to us if there was any alternative possibility of being tempered with the engine number of the subject vehicle except for what is stated above. In absence of which,  we are to rely upon the plea taken by the complainant pointing finger towards the O.P. No.1 for this  mischief. Naturally, an adverse   inference can be drawn against the O.P. No.1 that the original engine bearing No. 6EPLK 102053 installed by the manufacturer in the vehicle was  replaced by an defective one at the time of giving delivery of the vehicle to the complainant. In our opinion, such an act of the O.P. No.1 very much attracts unfair trade practice and deficiency  in service. It has come out from the evidence of the complainant (P.W.1) that due to technical fault in the engine of the vehicle he  could not continue to ply the vehicle on the road and thereby suffered huge financial loss. We do not find any ground to disbelieve the above said version of the complainant for the reason that it is seen from the evidence of the complainant that since long the subject vehicle is off the road and lying in the garage.

18.        In the result, therefore, the complaint u/s 12 filed by the complainant is allowed on contest. The O.P. No.1, the proprietor of Indu Motors is directed to replace the engine of the subject vehicle by a new one within 2 months from the date of judgment or to refund the price of the vehicle with 9% interest P.A. from the date of presentation of the complaint before this Forum   on 07.09.13 till the payment is made in full. He is further directed to pay Rs.10,000/-(Ten Thousand) to the complainant as compensation for mental agony and harassment together with Rs.2000/-(Two Thousand) as costs of litigation.      
     

19.                   A N N O U N C E D

 

 

SRI S. C. SAHA
PRESIDENT,
DISTRICT CONSUMER  DISPUTES 
REDRESSAL FORUM,
WEST TRIPURA,  AGARTALA.

 

SRI B. BHATTACHARYA,
MEMBER,
  DISTRICT CONSUMER DISPUTES 
REDRESSAL FORUM, 
  AGARTALA, WEST TRIPURA.