Orissa

Rayagada

CC/118/2019

Krishna Chandra Nimalu - Complainant(s)

Versus

The Manager-cum-propritor JCB shanti Automotives India Pvt. Ltd., - Opp.Party(s)

Self

28 Apr 2021

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    COMMISSION, RAYAGADA,

STATE:  ODISHA.

                                                          C.C. Case  No.   118/ 2019.                              

 

P R E S E N T .

Sri  Gadadhara  Sahu,                                           President.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri   Krishna  Chandra  Nimalu, S/O: Sri Khatakudi  Nimalu, At:Khaira,Po:Khaira,PS:Gunupur, Dist:Rayagada,        (Odisha). 765 022..                                                                                           …. Complainant.

Versus.

1.The Manager-Cum-Propritor, JCB shanti Automotives India Pvt. Ltd., At:Khaliguda, Po/Dist:Rayagada, Pin No. 765  001.

2.The  Managing Director, JCB India  Ltd., Mathura Road, New Delhi.

3.The General Manager, HDB Financial service Ltd., Rayagada.

4.The Regional  Transport  Officer, Rayagada.

5.The Regional Transport  Officer, Bhawanipatna.

6.Sri Nanu Agrawal, Bhawanipatna, Dist: Kalahandi.         ……...Opp.Parties

Counsel for the parties:                         

For the complainant: - Sri P.K.Das, Advocate, Rayagada.

For the O.P No. 1:- Set Exparte.

For the O.Ps   2   :- Sri Santosh  Kumar Mishra, Advocate, Navrangapur.

For the O.P. No.3:- Set Exparte

For the O.P. No.4:- Set  exparte.

For the O.P. No.5:-Reply sent  by postal service.

For the O.P. No.6:- Set exparte.

JUDGEMENT

The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non providing  Accessaries and  other documents  i.e. R.C. of the JCB 3DX-2WD  not handed over till date for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the  O.Ps No.1 .3. 4. & 6 neither entering in to appear before the District Commission nor filed their  written version inspite of more than  07 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps.  Observing lapses of around 1 ½ year  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  from the complainant set the case  exparte against the O.Ps 1 .3. 4. & 6.. The action of the O.Ps  are against the principles of  natural justice as envisaged  in the C.P. ACt. Hence the O.Ps 1 .3. 4. & 6  are set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

Upon  Notice, the O.Ps  No.2 (JCB Manufacturer)   put in their appearance and filed  written version through their learned counsel in which  they refuting allegation made against them.  The O.Ps 2 & 5   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act,. The facts which are not specifically admitted may be treated  as denial of the O.Ps.   Hence the O.Ps   prays the District Commision to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the learned counsel for the    O.Ps  No.2   and from the learned counsel for the complainant.    Perused the record, documents, written version  filed by the parties. 

This District Commission  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

         FINDINGS.

            Undisputedly the complainant  had  purchased     JCB- 3DX 2 WD  from the  O.P. No.1( copies of the Tax invoice, Delivery challan, Form-21 & 22, , Insurance copy, Key)  which are in the file marked as Annexure-I to 5). The complainant  availing finance  from  the O.P. No.3 (Finance) a sum of Rs.28,13,005/- (copies  of the  paper issued by the O.P. No.3(Finance)  in favour of the complainant  which  is in the file marked as Annexure-6).

       The main grievances of the complainant was that   the O.P. No.1 & 2  ( JCB dealer and Manufacturer)  had not  providing  Accessories and  other relevant documents  i.e.  R.C. of the above vehicle  had not handed over  to the complainant  inspite  of   contact from time to time .   Hence this C.C. case. 

       The O.P. No.2 (  JCB  Manufacturer) has contended  in their written version  that  the O.P. No.2 (JCB Manufacturer)  are sold to the customers either directly or through a network of its authorized dealers  and resellers all over the country.  It is submitted that the relationship  between the O.P. No.2 (JCB  Manufacturer)  and  its dealers are on principle to principle basis.

In this context, We are of the opinion that the case  is relating to non receipt  R.C. of the above  vehicle  which was also defective   which is covered under section 2(i)(f) of the C.P. Act. The C.P. Act  which provides that  “Defective means any fault, in imperfection or shortcoming in the quality, quantity, potency, purity are standard which is required to be maintained by or under any law for the time being in force”.                                                                  After amendment made by  the C.P. Act   of 2002 wherein it  is made clear that when a complainant  is using the product of the O.P.No. 2( JCB Manufacturer)  purchased from the  O.P.No.1  (JCB Dealer)  he is also coming within the definition of consumer and the service provided  or attached to the said  goods in the shape of warranty or guarantee is also available to the users.

On perusal of the record  it is revealed that  the fact of the  purchase  of JCB     is not denied by the  O.Ps.  It is admitted position the complainant having  purchased   above goods for  consideration. 

It is held and reported  in  CPJ 2005 (2) page No.781 the Hon’ble State  Commission , Chandigarh observed  the dealer is the person who in the market comes in direct contact with the consumer and he assures about the quality   of goods sold and in case  the consumer  had problem with the above veicle, the dealer was under an obligation to refer the matter  to the manufacturer for necessary  relief, which  in the  instant case was done.

Further  the  O.Ps No.2 (JCB Manufacturer)   in their written version contended  that the  case is not maintainable before the  District Commission as  there is a commercial transaction for profit and not for livelihood. In this connection  the O.Ps  relied citations  in their  written  version.

The O.P No.2    taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act,  The facts which are not specifically admitted may be treated  as denial of the O.P No.2.    Hence the O.P No.2    prays the  District Commission to dismiss the case against  them  to meet the ends of justice.

For better appreciation this District Commission relied citations which are mentioned here under:-

           It is held and reported  in C.P.R. – 2009 (1) page No. 164 the Hon’ble  National Commission, New Delhi observed after amendment by the Consumer Protection  (Amendment) Act, 2002 (62 of 2002),  Section 2(1)(d), 12 & 17- Consumer- Person  excluded who availed services for commercial purpose was included  in definition only by  Amendment Act of 2002.

                  Again it is  held and  reported  in CPR-  1999(1) page  No.17  in the case  of Air Port Authority of India Vr. M/S. Solitaire India Ltd where in  the  Hon’ble National  Commission, New Delhi  observed  “In the case of hiring of service  for consideration if there any  deficiency the party in default can be  prosecuted by filing   consumer complaint  and question whether the services availed were for commercial purpose  or not was  of no consequence.   Hence the O.Ps can not take  the plea of  ouster clause and also can not take the plea of  “Commercial purpose” when the services were rendered for valuable consideration .

                     Further it is held and reported  in AIR 1984  Odisha  182 in the case of M/S. Patnaik Industries (P) Ltd. Vrs.  Kalinga Iron works and others where in the  Hon’ble   Supreme Court  observed “ The agreement between the parties does not  oust the  jurisdiction of the Court.  It may operate as an estoppels against the parties    but it can not deprive the court  of its power to do justice.  Ordinarily,  the  court  would have regard to  the choice of the parties, where however the court  whose jurisdiction has been  ousted is satisfied  that the stipulation would operate  harshly, is oppressive  in  character inequitable or unfair, for the ends of justice  it can relieve  the party  of the  bargain.  The ouster clause can be ignored.”

Further  in Trnas Mediterranean Airways Vrs. Universal Exports  the Hon’ble Supreme Court  where in observed  “ The protection provided under the C.P. Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy”.

Again  this District Commission  relied  citation It is held and reported in Current Consumer Case 2004 page No.27 where in  the Hon’ble  Supreme Court  observed  the redressal mechanism  established  under the Act is “not supposed to supplant but to supplement the existing judicial system”. It is well settled  principle of law that the statutory authority   should act under the provisions of the relevant statue and if they do  not   act accordingly, the Consumer Forum  have the jurisdiction because  not acting under the provisions of the statute/Act it amounts to deficiency   of service.

By virtue of Article-300, if a competent legislation  enacts a law for compensation  or damage  for  an act done by it  or its officers in discharge of their statutory  duties.  Thus  a suit for it  would be maintainable.  No civilized  system  can  prorate    on executives  to play  with people  of  its country  and claim that it is entitled to act  in any manner   as it  is sovereign needs  of the state, duty of  officials  and right  of the citizens are to be reconciled.  So that  the role of law   in a welfare state  is not shaken  (N.Nagendra Rao & Co.  Vrs. State of Andhra Pradesh ( 1994) 6 SCC-205 /AIR 1994 SC  2663.     

The  complainant  is a  young  28   years  old  educated  unemployed  youth  and he belongs S.C. & S.T.  category.  The complainant  is a cultivator  and the  contract work  is his side business in order to  keep the  above  financed   vehicle    into   action  and to earn some money   so that economically   he can  improve.  The  intention of the legislature  is also clear.  In  order to mobilize  and improve the  economic  condition  of S.C.& S.T. of the  remote   areas the scheme  is opened . For the economic  development  the above vehicle   is highly  necessary  for the  complainant  who  resides   in a remote  area .

This District  Commission  observed  the complainant was not able to use the  above vehicle some days   because of the O.Ps failure to deliver the  required papers in time. Further the complainant has taken loan to earn livelihood by  running  business hence not hit by bar of commercial purpose. Complainant  is a consumer within meaning of Section 2(1)(d)(ii) of the C.P. Act.

       Again this District commission  observed the complainant was perfectly justified in approaching  the O.Ps for those documents and they were duly bound to deliver those documents.  In the present case, this District  Commission clearly  demonstrates that the O.Ps had not been deligent, had not done their duty and there was deficiency in service on the part of the O.Ps.

       For better appreciation  this  District Commission relied citations  which are mentioned here under:-

It is held and reported in C.P.R 2006(2) page No.397 where in the Hon’ble State Commission, Chennnai  observed “C.P.Act, 1986- Deficiency in after sale  service- Vehicle sold- Relevent papers  not handed over intime- whether a deficiency  in  service? (Yes)- Compensation  of Rs. 20,000/- allowed  for mental agony”.

Again it is held and reported in  CPJ 1996(3) page No. 188 the Hon’ble  State Commission, Andhrapradesh in the case of  Leafin India Ltd.   Vrs. B. Venkateswara Rao  where in observed “The complainant purchased  the motor cycle  from the O.Ps and the relevant papers were not handed over, has held that there was deficiency in service on the part of the O.Ps”.

In view of the discussion above, we hold that the complainant is a consumer and in case where the  relevant documents  of the vehicle was not  handed over in time for which the entire consideration had been paid, there is deficiency in service and the  C.P. Act,  is attracted and the District  Consumer Commission  have  jurisdiction to entertain such type  case.

Further  complainant had suffered on account of the deficiency in service on the part of the  O.Ps.  The complainant  is entitled compensation to be paid  by the O.Ps towards probable hire charges during the period he could not use the above  JCB for non handed over  the relevant papers of  the above vehicle to the complainant by the O.Ps  for which  the police authorities  are  imposed penalties.

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps    to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed.

O R D E R

            In resultant the complaint stands allowed in part against  O.Ps

The O.Ps 1,2,3  are directed to issue  R.C. in favour of the complainant  towards  Registration  of the vehicle  JCB  3DX-2 WD  by contacting  with the O.P. No. 4 & 5 (RTO authority) .  All the charges shall be borne by the O.P. No. 1 & 2,3 (JCB Dealer,  Manufacturer, and finance company )  for the above purpose.

The O.P. No.3( Finance company) is directed  to stop collection  of EMI and interest  from the complainant  till R.C. received by the complainant  from the O.P. No.1 & 2.

The O.P. No. 4 & 5( R.T.O., Rayagada and Bhawanipatna) are directed  to provide the registration  documents immediately to the complainant by rectifying the defect.

Parties  are left to bear their own cost.

            The entire directions shall be carried out with in 45 days   from the  date of receipt   of this order.   Copies be served to the parties.

Dictated and  corrected by me.  

 Pronounced in the open forum on            9^th. .     day of    April, 2021.

 

                                                                                MEMBER                                                                               PRESIDENT