In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, Kolkata-700087. CDF/Unit-I/Case No. 75 / 2006 1) Sri Sushil Bose, Vill. Uttar Jagacha, G.I.P. Colony, Dist. Howrah. ---------- Complainant ---Verses--- 1) Tata Motor’s Limited, 15, Park Street, Kolkata-700016. 2) French Motor Car Co. Limited, 234/3A, A.J.C. Bose Road, Kolkata-20. 3) Tata Motor’s Finance Ltd., 15, Park Street., Kolkata-20. ---------- Opposite Party Present : Sri S. K. Majumdar, President. Sri T.K. Bhattacharya, Member Order No. 2 4 Dated 2 4 / 0 2 / 2 0 1 0 . Complainant Sushil Bose by filing a petition of complaint u/s 12 of the C.P. Act on 17.3.06 has prayed for compensation of Rs.4,15,125/- and for Rs.10,000/- as charges of machineries payable by the o.ps. Fact of the case in short is that on 1.11.04 on hire purchase scheme he purchased vehicle being model no.TATA 207 VIP Pickup Van, Regn. no.WB-11A 5351 from the authorized dealer of o.p. no.2 and o.p. no.3 was the financer. O.p. no.2 received the instalment payment from the complainant. Value of the vehicle was Rs.3,86,728/-. Down payment was Rs.38,728/- and the rest Rs.34,800/- was to be received by o.p. no.3 and Rs.73,080/- was the interest @7% per year and insurance was Rs.1800/- for second and third years. So the total amount comes to the figure of Rs.4,39,080/- and the increased insurance and bank charge for second and third years was to the figure of Rs.4,41,376/-. Complainant paid Rs.3,28,672/- up to the month of February, 2006 and the due amount up to October, 2006 was Rs.1,12,706/- and at the time of delivery of the vehicle in question he was not supplied with any warranty or guaranty documents and he was verbally informed that if any motor parts become out of order it will be replaced free of cost. But several parts were either damaged or broken or not functioning and for the repairing of he same, the complainant had to incur good amount of money. On 5.12.04 complainant took the vehicle to the workshop of o.p. no.2 at Ranaghat and on their instruction he took the photograph of the vehicle in question and the Manager of o.p. no.2 told him that they will take 15 days time to apply the chassis of the vehicle. His monthly instalment is Rs.12,500/- and even after 3 months 15 days the chassis were not changed. Complainant entered into an agreement with Diary Products Pvt. Ltd for supply milk. He had no problem to run the vehicle from 1.3.04 to 4.12.04 because on every day the vehicle used to run for 250-300 kms and for supply of chassis after 7 months by o.p. nos.1 and 2 his contract for 3 years has been cancelled and he is unable to pay the instalment. Finding no other alternative he took loan of Rs.60,000/- from Banksara Cooperative Credit Society and including the hiring charge from September, 2005 to February, 2006 the amount has become Rs.74,592/- which he already deposited. But even in spite of it o.p. nos.2 and 3 with their musclemen on 16.2.06 had forcibly taken the vehicle in question and up to 16.2.06 the due amount was Rs.42,706/-. Thereafter o.p. nos.2 and 3 informed him that they will release the vehicle on payment of Rs.58,706/- and he was also asked to pay Rs.3500/- who had taken the vehicle in question. With the help of some loan amount and selling the ornaments of his wife he had given Rs.30,000/- and he also paid further amount of Rs.12500/- on 5 cheques, but he could not have yet procured Rs.28,750/- and finding no other alternative he has filed this case against the o.ps. with the aforesaid prayer. O.p. no.2 in their w/v filed on 9.8.06 has stated that the complainant made several representation suppressing the material facts and o.p. no.2 is merely a dealer and an authorized mechanic of o.p. no.1 Tata Motors Ltd. and o.p. no.2 has never been engaged in the business of manufacturing of vehicle. As a dealer o.p. no.2 merely sells the vehicle to buyers upon receiving necessary orders from them. O.p. no.2 does not and cannot stand as guarantee and/or issue voucher for the vehicle manufacturing process and accordingly, o.p. no.2 cannot be made subject to any undertaking by third party. The officials of o.p. no.2 attended to the complainant on 5.12.04 and had sought for time to procure proper chassis of the vehicle, but as the complainant could not wait for non availability of the particular chassis it cannot be changed and from December, 2004 till March, 2005 the vehicle of the company was in good condition and it was running regularly for more than three months. Complainant when requested by o.p. no.2 to wait for three and a half months he behaved in an objectionable manner and ran out from the workshop and on 17.3.05 complainant approached Ranihati workshop of o.p. where the new chassis was immediately given to the complainant. It is the further contention of o.p. no.2 that being a dealer of o.p. no.1 he cannot enforce nor be bound by any contract between complainant and o.p. no.1 and manufacturing defect, if any, is not within the purview of o.p. no.2. As o.p. no.1 is the principal, there is no ground to implead o.p. no.2 liable for such dealing and transaction because he is not responsible for any manufacturing defect. On every occasion receiving complaint from complainant, o.p. no.2 has performed more than its contractual obligation by replacing the product under complaint and also had given discount for such products replaced which do not come under warranty. The vehicle was given back to complainant on his full satisfaction regarding the condition of the vehicle which is evident from the job card and accordingly, he has prayed for dismissal of the case. O.p. no.1 on 18.2.09 had filed their w/v. They sold the vehicle bearing no.WB-11A-5351 and delivered possession to complainant and complainant entered into a loan hypothecation agreement on 31.10.03 in respect of the said vehicle and before delivery they thoroughly checked and decided the vehicle in their factory and after all tests it was found free from all manufacturing defect and on the terms of warranty i.e. 3 lakhs kms or 3 years service whichever is earlier the purchaser namely the complainant got the vehicle at authorized service station every 5000 kms of running and on all times the vehicle was checked, but complainant defaulted in making payment of his dues under the agreement between complainant and o.p. no.1 and filing of this case by complainant is nothing but a intelligent device to avoid further payment in terms of the agreement entered between complainant and o.p. no.1. Complainant has entered into loan-cum-hypothecation agreement on 31.10.03 with o.p. no.1 where the cost of the vehicle was Rs.3,86,728/-, the down payment amount is Rs.38,728/- and the financial amount was Rs.3,48,000/- and the interest amount was Rs.73,080/- and insurance provision was Rs.18000/- making grand total of Rs.4,39,080/- and the said amount was payable in 35 monthly instalments @ Rs.12,500/- except the first instalment which was for Rs.14,080/- starting from 1.12.03 to 1.10.06. They have admitted the amount paid by complainant till February, 2006. But from 12.1.09 an amount of Rs.1,96,364/- has fallen due by complainant. The chassis of the vehicle in question was duly replaced on payment of charges. The act or the dealings and transactions of o.p. with the City Diary Product Pvt. Ltd. is not concern of o.p. no.1 and accordingly, they have prayed for dismissal of this case. O.p. no.3 has also filed a written statement alleging therein that the petition of complaint is liable to b e dismissed because this o.p. no.3 never entered into any agreement with complainant in respect of the vehicle in question. Decision with reasons : The vehicle in question was manufactured by o.p. no.1 Tata Motors and complainant purchased the vehicle on payment of part consideration from o.p. no.2 which is an admitted position. So, complainant is a consumer as provided u/s 2(1)(d) of C.P. Act. According to o.p. no.2 French Motor Co. being the dealer of o.p. no.1, it cannot be liable for any manufacturing defect of the vehicle. It is argued by o.p. no.2 that o.p. no.2 is a mercantile agent of o.p. no.1 and accordingly to the provision of law; agency will be the guiding factor u/s 230 of the Indian Contract Act and in absence of any contract; agent cannot be personally liable to enforce a contract on behalf of the principal nor he is liable for such transaction and accordingly, o.p. no.2 as the dealer cannot be directed to pay any amount claimed by complainant and as such, the petition of complaint should be dismissed at least in respect of o.p. no.2. It is also argued that the claim of complainant for making payment of Rs.4,15,125/- and Rs.10,000/- for loss in 27 months for his mental pain and agony is not tenable. O.p. no.2 is not at all liable to pay any such amount as provided u/s 230 of the Indian Contract Act. On the other hand, it has been argued from the side of o.p. no.1, the manufacturer that complainant is not a consumer and complainant did not file any expert evidence with regard to manufacturing defect. He obtained loan from o.p. no.3 and he is liable to pay for that and there is no negligence or deficiency of service on the part of o.p. no.1. It is evident that complainant has not filed any report of expert that there was manufacturing defect of the vehicle he purchased from o.p. no.2 being the agent of o.p. no.1. It is further allegation of complainant that the quality of the vehicle he purchased was very low. He purchased the vehicle in November, 2003 and in February, 2004 and retrokit was fitted in the chassis and the chassis replaced was also broken on 5.12.04 and it is specific grievance that when the retrokit was fitted in the chassis why o.p. no.1 did not replace it by a new chassis. On 5.12.04 he went to o.p. no.2 at its workshop at Ranaghat and after their repeated delay new chassis was fitted after 3 months 15 days and it is his specific grievance that as the new chassis was given by o.p. nos.1 and 2 for about 7 months his contract for 3 years was cancelled and finding no other alternative he and his wife took loan of Rs.60,000/- from Banksara Cooperative Credit Society and from September, 2005 to February, 2006 he by way of instalment had repaid Rs.74,592/-, but even in spite of it the hired men of o.p. nos.1 and 2 had forcibly taken away the vehicle from him as at that time Rs.42,706 was still standing due by complainant. There is no denial that the vehicle was purchased on instalment payment from the agent o.p. no.2 and manufactured by o.p. no.1. It is also admitted position that the financer of complainant is o.p. no.3. that complainant purchased a new vehicle from o.p. no.2 as agent of manufacturer o.p. no.1, but had there been no manufacturing defect and in absence of any accident of the vehicle in question why three parts of the vehicle found defective and why the warranty one part was given and not the three. At Ranihati workshop the vehicle was repaired. It appears on perusal of the record that even in spite of informing both o.p. nos.1 and 2 regarding the defect of chassis, the chassis was delivered after 7 months and for such inordinate delay, the complainant sustained a loss which he had with the City Diary Product Pvt. Ltd. for supply of milk and definitely this amounts to deficiency of service on the part of o.p. nos.1 and 2. In the job card no.7322 dt.5.12.04 we also find such breakage of chassis and it was written in the manual of service book of o.p. no.2. It appears from job card no.4884 dt.1.7.05 that new chssis was fitted and we have also mentioned that for such inordinate delay in fitting the new chassis, the complainant sustained a loss for cancellation of his agreement with the City Diary Milk Supply. We have also perused the evidence of complainant and o.p. no.2. Sri Tushar Kr. Sil, Asstt. Manager (Legal) filed the affidavit on behalf of o.p. no.2. The evidence of complainant is highly corroborative in nature with regard to the averments made out in his petition of complaint. In the evidence of o.p. no.2, he has only stated that the statements made out in paragraph 1 to 12 of the written statement are true to his knowledge and the rest are his submissions before this ld. Forum. What are his submissions after paragraph 22 of the w/v are not stated in his affidavit. We have also perused the written notes of argument of o.p. nos.1 and 2. O.p. nos.1 and 2 have referred a decision reported in 2006(3) CPR 402 (NC) wherein it has been decided that in absence of any expert opinion on record as to whether the vehicle had any manufacturing defects and when no additional material or evidence brought on record to prove allegation of vehicle suffering from manufacturing defect the observation of the Hon’ble State Commission is held justified in dismissing the complaint alleging deficiency of service. But this decision is not squarely applicable in the present case because had there been no deficiency in service with regard to manufacturing defect of the chassis, why the chassis was replaced by new chassis in the vehicle of the complainant manufactured by o.p. no.1, although the chassis was replaced after 7 months from the date of information by complainant to o.p. nos.1 and 2 both ? In that event it cannot be said that in absence of any expert report the allegation of complainant regarding the deficiency of service is not tenable. Therefore, considering the facts, circumstances, evidence on record both oral and documentary and legal position, we are of the opinion that complainant is entitled to get some relief as prayed for. We do not find any liability of the financer o.p. no.3, Tata Motors Finance Ltd. As the broken chassis was replaced by new one, complainant is not entitled to get Rs.10,000/- as claimed in his petition of complaint. he has not prayed for any compensation and litigation cost. Hence, Ordered, That the petition of complaint is allowed on contest against the o.p. nos.1,2 and 3. The o.p. nos.1 and 2 are directed to pay jointly and/or severally Rs.4,15,125/- (Rupees four lakhs fifteen thousand one hundred twenty five) only to the complainant positively within forty five days from the date of communication of this order, failing which it will carry interest @ 10% p.a. till full realization. Fees paid are correct. Supply certified copy of this order to the parties on payment of prescribed fees. ____Sd.____ ______Sd.________ MEMBER PRESIDENT | 
