: J U D G M E N T :
The brief fact of the case is that the complainant has taken a distributorship of Nokia mobile in the name & style as M/S Saswati Enterprixe for maintaining her livelihood. She wanted to purchase Mahindra model Champian load carrier vehicle and to that effect a quotation was given to OP No. 1. OP No. 1 supplied the said vehicle in green colour bearing engine No. A6H39288 & Chasis No. Mak C2FJF 65 H 12687 on 07.01.2009 and took the consideration money of Rs. 1,92,000/- from complainant. But after purchasing the same, some difficulties arose and the said vehicle did not provide Proper service. Matter was in formed to OP No. 1. There were so many defects in front tyre, battery, spare parts, self alternation, gear box etc. But the OP No. 1 has failed to repair / replace the same even after repeated requests from the end of the complainant. The OP No. 1 has adopted unfair trade practice. The complainant has been suffering from huge financial loss with mental pain. She said that vehicle had suffered from manufacturing defects also. Though the OP No. 1 did not take proper care yet the complainant has knocked at the door of the Forum for getting her relief / reliefs mentioned in the prayer portion of the complainant.
OP No. 1, contested the case by filing written version stating, inter alia, that Samanta Engineering Works is the seller & servicing centre within the stipulated time for warranty period. OP No. 1 also stated that complainant booked one Champion BS-IV vehicle on 16.09. 2008 & she signed on booking paper. On 16.09.2008 & she signed on booking paper. She paid Rs. 5000/-. Thereafter she gave a cheque of Rs. 1,92,000—as on 03.01.2009. After that Samanta Engineering works prepared a job card being No. –K/450 dtd. 07.01.09. The vehicle was delivered to Saswati Enterprise stating the specific particulars of the alleged vehicle & the complainant / customer received it in good condition after putting her signature on the paper. The vehicle was given with warranty for 6 months & also for free servicing facility. Thereafter complainant came to OP / servicing centre. Complainant OP / servicing centre provided free service. But the complainant did not come to take back the said vehicle. OP / Samanta Engineering Works informed her on various occasions, but she did not turn up for taking the delivery of the same. Now the said car was at Ranaghat & it was moving for their advertisement. This OP also stated that they are ready to deliver the vehicle to the complainant. So the complaint is liable to be rejected.
OP 2, also contested this case by filing written version stating, inter alia, that the OP No. 2 is not at all involved in the entire process of sale of the said vehicle. It was for the first time to know regarding allegations raised by the complainant before this ld. Forum. The complainant has failed to prove the existence of manufacturing defects of the said vehicle. The complainant is not entitled to get any compensation, cost and interest. Moreover, the relationship of OP No. 1 with OP No. 2 is created solely on the basis of dealership agreement & is on principal to principal basis. The complainant has merely made baseless allegations without material particulars. So the complaint is liable to be dismissed with cost.
Though OP No. 3, did not file any written version but we assume that OP No. 2 & OP No. 3 (Mahindra & Mahindra Ltd.) both are sailing on the same boat & standing on same footing.
POINTS FOR DECISION
- Point No. 1: Is the complainant a consumer under OPs?
- Point No. 2: Is the complaint barred by limitation?
- Point No. 3: Is there any deficiency in service on the part of OP 1 or OP 2?
- Point No. 4: What relief the complainant is entitled to get?
DECISION WITH REASONS
For the purpose of brevity and convenience all the points are taken up together for discussion.
The opposite party has admitted that the complainant is a consumer under them. Moreover, we find from the documents and the affidavit that the complainant is a consumer.
Now comes to a question of deficiency in service. We have considered Annexure-1 to Annexure – 13.
We have meticulously gone through the affidavits on record. Annexure – 1 is the SBI cheque given by Saswata Ghosh to the tune of Rs. 1,92,000/- on 03.01.09 in favour of Samanta Engineering Works, OP.
Annexure – 2 is the delivery challan and customer has signed on it on 07.01.09. The Mahindra & Mahindra make model Champion Load Carrier was purchased by the complainant. The vehicle was green with 510 CC power. The year of manufacturing as per Annexure – 3 (certificate of registration) is 2009. It is argued that it is a mistake of R.T.O. The OP No. 1 might have manipulated to get this document. Annexure – 4 is Form No. 22 dtd. 07.09.06. Annexure – 5 is the Insurance document which also showed that the year of manufacturing was 2009. The mistake regarding year of Make continued as insurance document was prepared on the basis of Annexure – 3 / certificate of registration, it is argued by Ld. Advocate for the complainant. As per Annexure – 13 the vehicle was booked on 16.09.2008 with Rs. 5000/-. Annexure – 6 is the job card prepared by Samanta Engineering Works on 07.01.09 and the complainant has written at the corner of the card was in good condition at the time of delivery. Annexure – 7 is a letter written by the complainant to the OP dtd. 31.08.12 hinting manufacturing and other defects of vehicle with the prayer for replacing the vehicle. Annexure – 11 is a certificate given by Pradip Das private technician mentioning defects on nine items of the vehicle. The vehicle was repaired and Annexure – 12 shows on 15.01.2010 a letter was written to the complainant by the OP for taking back the vehicle after repair. Annexure – 9, 10 and 12 go to show that Samanta Engineering Works, OP repeatedly requested the complainant to take back the vehicle but the complainant did not take back the vehicle from the custody of the OP. The complainant did not take back the vehicle because it was not repaired properly as per requirement (vide Para- 3 of complaint, page-5). Thus, there is valid ground and justification not to take back the vehicle unless and until proper repaired.
We have meticulously gone through affidavit evidence, questionnaire, interrogatories and the reply in order to appreciate the genuineness of the claimer otherwise.
From the facts and circumstances of the case and the affidavit-in-chief of Pradip Das filed on 26.06.14 the defects in the battery, self, alternator, pump front tire, gear box, RRH A0795451W etc. have been mentioned (vide the report given by the expert, Pradip Das in 2009).
Both the Ld. Advocates of the parties have argued at length. Ld. Advocate for the complainant has submitted that the vehicle was not taken back because it was not properly repaired. Our attention was drawn to the complaint wherein at Para- 5, 3rd paragraph reason for not taking the delivery has been clearly mentioned. OP 1 wrongly informed the complainant that they have repaired the vehicle and requested the complainant to take the delivery of the vehicle it is argued and pleaded on examination of the vehicle the complainant has observed that the vehicle has not been rendering proper service as before and as a result the question of taking delivery of the vehicle which was sent for repairing in the month of April, 2009 does not and cannot arise. Our attention was drawn to the affidavit filed by PW-1, Saswata Enterprise that Para- 10 wherein the above point is affirmed on affidavit.
It has been strongly argued by Ld. Advocate for the complainant that the vehicle was of 2006 make. Our attention was drawn to Annexure - 4 wherein form No. 22, pollution standards certificate shows that the date of such certificate was dated 07.09.06. The chasis No. is MAILC2FJF65H12687 and engine No. A6H39298 the date of purchase was 07.01.2009.
The date of filing the case was 01.04.2013. Hence, Ld. Advocate for the OP argued that the case is barred by limitation as the complaint was not filed within 2 years. It has been submitted by Ld. Advocate for the complainant that in the instant case cause of action was continuing. Our attention has been drawn to following case laws placed by Ld. Advocate for the complainant in order to stand his argument:-
- IV (2007) CPJ 104
- III (2008) CPJ 190 (NC)
- III (2005) CPJ 200
- IV (2007) CPJ 263
In the first case, Hon’ble Hariyana State Commission allowed the appeal against the District Forum on the ground that the cause of action was continuing because encroachment was not removed despite reminders of the complainant.
In the second case, the Hon'ble National Commission has held that the date execution of construction agreement could not be taken starting point of limitation. It was held that the complaint was not time barred.
In the third case, Hon'ble State Commission of West Bengal refers section 24A of the C.P. Act and held that the cause of action was continuing. In that case the OP did not discharge his basic obligation.
In the fourth case, Hon'ble Delhi State Commission has held that the complainant was maintainable as the cause of action was subsisting.
The facts and principles laid down in the above mentioned cases help the complainant.
However, let us see if the complaint is hit by limitation having regard to the fact that the C.P. Act is a beneficial legislation.
The case was filed on 01.04.2013. The date of purchase was 07.01.2009. The replacement should have been made by 2011, i.e., within 2 years. We have meticulously gone through the brief notes of argument filed by both parties. Cause of action is a bundle of facts. The OP, Samanta Engineering Works sent letter through A/D to the complainant, Saswati Ghosh on 09.06.09, 15.01.10 and 31.08.12 for taking back the vehicle. Thus, when communication between the parties was going till 31.08.12 we cannot hold that the case is barred by limitation because case was filed on 01.04.13 well within the limitation period. Thus, we hold that the case is not barred by limitation as tug of war over replacement of the vehicle was going on till 31.08.12 which is a continuing cause of action.
Point No. 1 and Point No. 2 thus go in favour of the complainant.
Our attention has been drawn to Sections 46 of the Indian Contract Act it is further argued that Ld. Advocate for the OP that the Forum has to consider when the extending of the communication became complete.
We have carefully considered the affidavits of the complainant and also Pradip Das who is a technical expert of the vehicle. He gave a certificate regarding the defects of the vehicle (vide the certificate issued in the letter head of Jayanta Engineering Works, Ranaghat signed on 15.01.2010) signed by Pradip Das. Ld. Advocate for the OP has challenged the competency of the Pradip Das that he could not give any licence to show that he is an expert of vehicles.
The most unfortunate part on the part of the OP is that the OP could not clarify as to why form No. 22 annexure-4 has been dated as “07.09.06”. Annexure – 4 is the pollution certificate of 2006 of the same chassis and engine number which was sold on 07.01.2009 to the complainant. This mystery of recording 2006 could not be solved by the opposite party.
From the oral evidence on record and the documents, we are inclined to hold that the complainant has succeeded in proving that OP 1, Samanta Engineering Works was guilty of deficiency in service and unfair trade practice. Thus, as the defects of the vehicle mentioned by Pradip Das (witness, annexure-11) were not removed, the complainant could not be held liable but the OP No. 1 is liable for deficiency in service.
Hence, all the points are disposed of accordingly.
Thus, it is
Ordered,
That the case CC/2013/27 be and the same is allowed on contest against OP No. 1 and dismissed against OP No. 2 and OP No. 3.
OP No. 1 is directed to pay Rs. 1,92,000/- + Rs. 5,000/- (booking amount) = Rs. 1,97,000/- along with interest within the 15 days from the date of judgment failing which the complainant will be entitled to get 8% interest on the sum from the date of this order till the date of full realization. The complainant is also entitled to get 15,000/- as compensation for his mental agony and sufferings. The complainant is also entitled to get Rs. 5000/- as cost of the suit. Hence, the OP is directed to pay Rs. 1,97,000/- + Rs. 15,000/- + Rs. 5,000/- = 2,17,000/- by 13.08.15. In case of failing to pay the amount by that date, Section 27 of C.P. Act, 1986 will be attracted.
Let the copy of this order be supplied to the parties free of cost.
