Order
The complainant has filed his case for claim of Rs. 12,11,957/- value of truck, Rs. 40,783/- insurance paid repair cost paid, by the complainant time to time Rs. 3 lakh loss accrued in transit Rs. 4 lakh total Rs. 19,52,740/- he has claimed.
The case of complainant appears from his complaint petition dated 02-06-2014 that the complainant was persuaded by the agent on on. No.2 to purchase the vehicle financed by them and he was agree accordingly. He has purchased the vehicle on the financed of o.p no.2 on the EMI Rs. 41,211/- and started using the said truck but said vehicle was not properly performed, several complained were made to the o.p time to time. Further the o.p no.3 & 4 called the complaint assuring him for proper repair and on payment the vehicle was get repaired but no result. As such the vehicle in question is laying ideal from 10-05-2014 in the workshop of o.p no.3 within all guaranty and warranty period, the purchase of vehicle is new under one years of purchase. Due to wrong sell of the said vehicle the complainant has faced the huge , financial loss on most of the occasions his truck was kept in the workshop of o.p no.3 as a result of which several consignment where damaged or handed over to the other transporters, as such the negligent and deficiency in service is arises against o.p. The complainant has served legal notice through his advocate Shri Ashotoskh Chandan but no result accordingly he has filed this case with aforesaid claim.
The complainant has further filed a petition dated 23-05-2015 with prayer to direct the o.p to deliver the new vehicle latest model of vehicle to him, against which o.p no.1 has filed its rejoinder dated 25-06-2015 with prayer to dismiss the case because there is no any manufacturing defect again the complainant has filed petition for same payer dated 29-07-2015.
The complainant has filed Xerox copy of documents letter dated 10-11-2014 send from office of sole arbitrator, certificate of registration, certificate cum policy schedule, premium authorization N.P goods retail invoice token tax token, invoice memos’, consignment of latter of latter dated send 15-05-2014 send by deal dealers Pvt. Ltd. By which the complainant was required to attend the workshop for repair of his vehicle legal notice dated 17-05-2014 and PAN card.
The o.p No.1 appeared and has filed his written statement supported with an affidavit dated 08-04-2015 alleged therein that complainant case in an abuse of process of law not maintainable liable to be dismissed and has deny the all allegations made by the complainant accept specifically disclose by the o.p no.-1 he has further alleged that allegation to manufacturing defect is baseless without relying of any expert report and the complainant has extensively used the vehicle for commercial activities hence he is not consumer under CP Act and relied on decision published in 1995 II CPJ 1 (SC), he has admitted the purchase of vehicle by the complainant from o.p on or around 14-06-2013 and the vehicle is new one and required mandatory servicing and the placement of specification component which he has neglected to follow the guidelines. The o.p is relying on the relevant terms and conditions of warranty of the vehicle. He has further alleged that the complainant has submitted his vehicle on 31-07-2013, 04-10-2013, 09-10-2013, 11-03-2014, 20-03-2014, 24-03-2014, 04-04-2014, 24-04-2014, 29-04-2014 & 17-05-2014 respectively after move of his vehicle about 6500 km, 19594/- 20498, 42933, 43061, 43522, 47797, 4899, 49311 respectively and the service centre has properly given necessary services provide under the warranty as well as on payment basis and o.p has properly produced the vehicle for service under class 5&7 of warranty the vehicle is well established product in the market and the manufacturing defect alleged by the complainant cannot be determined without proper laboratory and relied on decisions published in I 2010 CPJ 19 (NC) and has further relied on decisions published in (JT 2006 ) (4) SC, 113,(1994) 1 SCC 397, II 2009, CPJ 295 NC and (1996) 4 SCC 704 and on the aforesaid ground he has prayed to dismiss the case.
O.P no.1 has filed several Xerox copy of certain papers, as such job card satisfaction note dated 05-10-2014, delivery satisfaction slip, certificate history and details.
O.P No.1 has filed his written note of argument dated 18-08-2015 mentioning the same fact as alleged in his w.s. He has further lifed several Xerox copy of decisions mentioned above.
O.P No.1 has filed a separate petition dated 23-05-2015 with a prayer to direct the complainant to submit a report of appropriate laboratory after thorough inspection of truck which is also supported with an affidavit and has filed list of appropriate laboratories.
O.P. No.2 also appeared and has filed his w.s. on dated 23-01-2015 alleged therein that the complainant has filed this case with concealment of fact and prayed to dismiss the case and relied on decisions published in 2008 (2) Civil forum cases 778 (P&H). He has further alleged that the complainant has not follow the terms and conditions of agreement breaches the terms and conditions, all disputes difference and claim arises that is out of this loan agreement and settled by arbitration and as such the forum have not jurisdiction to entertain the case. The vehicle in question is commercial in nature. He has financed the said vehicle bearing its registration no. BR06GA- 8597 on 14-06-2013 for Rs. 12,40,000/- which was to be repaid in 47 installments of Rs. 41,212/- and from second installment to 47 installment is Rs. 390150/-. He has not been said in its person capacity, Tata Motors financed Ltd. Is duly registered under company act 1956. He has never convinced the complainant to purchase the said vehicle from any person. The complainant has unnecessary brought this case against o.p no.2 and relied on decisions published in II (2002) CPJ 247 MAH the there is no any deficiency in service stated by the complainant against o.p no.2 and on the aforesaid ground. He has prayed to dismiss the case with exemplary cost.
O.P no.2 has filed Xerox copy of loan come hypothecation cum guaranty agreement, singed by the complainant , contact detail.
In this case o.p no.3 also appeared and has filed his separate w.s . supported with an affidavit dated 10-11-2015 mentioning that the warranty given by the manufacturor the dealer has no role on the warranty and objected the case of complainant by citing the several decisions published in 2008 (2) civil forum case 778 ( P &H) 1998 (1) JPR 707, Appeal no. 317/95 from State Commission Bihar Patna I (2012) CPJ 110 NC, I 2010 CPJ 133 and II 2012 CPJ 350 NC.
O.P. No.3 has filed certain Xerox copy of documents as such letter dated 15-05-2014 indorse to complainant informing him that he come to workshop and get repair his vehicle as early as possible otherwise he will be liable to be pay the workshop rent @ Rs. 500 /- per day legal notice send by the complainant through his lawyer o.p no.3 reply of legal notice dated 10-06-2014 mentioning that without the direction of complainant the vehicle should not be repaired, satisfaction certificate , service history, job card, retail invoice, proforma invoice job card slip, warranty terms and conditions.
O.P No.4 appeared and has filed w.s. supported with an affidavit and denying the allegations of complainant and relaying same decisions as relied on by other o.p.’s mentioning by the o.ps as above and has prayed to dismiss the case.
O.P. No .4 has filed several Xerox copy of several papers as such job card satisfaction note, investigation letter dated 10-03-2014 send by the workshop endorse, receipt to payment dated 10-03-2014, tax Indore invoice, job card warranty paper tax token , registration card, certificate cum policy schedule, transport permit etc. legally notice dated 17-05-2014.
Considering the facts circumstances material available with the record and allegation of respective parites it is admittedly clear that the complainant has purchased the vehicle in question on hypothecation and there is no any objection regarding the payment of installment, only objected raised by the o.p that the vehicle was for commercial purposes and have no any manufacturing defect but it is admittedly clear that the vehicle in question is laying at the end of o.p no.3 ideal dealer Pvt. Ltd. Showroom workshop NH-28 Bhagawanpur chowk Muzaffarpur which appears from letter dated 15-05-2014 send by o.p no.3 to complainant alleging there in that the complainant would come to repair his vehicle as early as possible otherwise he is liable to pay the cost of workshop @ Rs. 500/- per day, it means vehicle in question is kept to the o.p no.3 before 15-05-2014 till today which was replied by the complainant through his laywer by his legal notice dated 17-05-2014 mentioning that all papers of vehicle have been submitted to o.p no.3 and the o.p no.3 is giving physical, mental, financial, harassment of Rs. 4 lakh otherwise he should be pressurize to lodge a case in the court which was replied by the o.p no.3 by his letter dated 10-06-2014 and again wanted to the complainant to come in workshop and get it repair his vehicle without his presence his vehicle should not be repaired it means the vehicle in question is still in possession of o.p no.3 from about more than 4 years. Regarding manufacturing defect there is no any expert opinion submitted by the complainant. It is also relevant for the complainant that as per warranty there is no any system of replacement of vehicle in question only it can be repaired the parts which are under the warranty. Both the parties have only came in writing. The requirement of complainant also arises to come to workshop of o.p no.3 and get it repaired his vehicle for running conditions but he has not done so the reason best known to him. Discrepancy arises against the o.p no.3 which is dealer cum showroom holder who has sold the vehicle of complainant on the basis of hypothecation made by the o.p. no.2 & o.p no.3 is well connectied with 1 & 2 and all 3 are equally responsible for the discrepancy arises against their conduct work with the complainant by keeping the vehicle in question in defective manner, they have not removed the defect and only they want the physical presence of complainant. What for the physical persons was necessary the reason bast known to o.p. Only they are entitled to get the repair cost of the vehicle if required and not come under the warranty for parts of the vehicle. It is necessary to mention here that vehicle in question was certainly for business purposes but it was for lively hood of complainant.
Considering facts circumstances material and discussions made above it is apparently clear that the discrepancy arises against the o.p no.1 ,2 for which they are liable by keeping the vehicle stand still with them because the vehicle is most valuable and came in the workshop at o.p no.3 within one year of the purchase and admittedly the vehicle were produced on several times in the workshop at the alleged date and time as above, hence the case of complainant is liable to be decreed in part the complainant is not entitled to get the purchase money of vehicle only he is entitled for discrepancy arises b y keeping the vehicle about 4 years & for physical mental economical harassment.
Accordingly the case is partly decreed and the o.p no. 1, 2 & 3, should pay Rs. 4 lakh with interest @ 8 %. As discrepancy and for physical, mental, economical harassment from the filing of case arises against them, further the o.p are directed the handover the vehicle in question to the complainant with full bear and tear with all papers submitted by complainant in the running conditions without taking any cost of the repair charge and change of parts if any further o.p are directed to pay Rs. 10,000/- litigation cost. The payment should be made within one month of the order, otherwise the complainant is entitled to get it recover from the process of law.
