This appeal is preferred against the Final Order dated 19.03.2021delievered by Ld. D.C.D.R.C Malda in C.C. No 89 of 2015.
The appellant Alok Agarwala registered the consumer complainant against OP/ Respondents the Lexican Motor and others.
The consumer complaint in nut shell is that the complainant purchased TATA INDIGO MANZA Q JETE90 AURA from the counter of O.P. No.1 who is an authorized dealer of TATA Motors in the year 2011 and the cost of the vehicle was Rs. 6,67,614/- (Rupees six lakh Sixty-Seven Thousand Six Hundred Fourteen only) and the amount was duly paid by the complainant to the dealer by proper receipt. As per terms and condition of sell of the vehicle TATA INDIGO the vehicle was registered bearing No. WB66K/0541 and also enroll for 24X7 on road accident programmer continuing up to 08/05/2015 and proper receipt in this regard was also issued to the complainant by the LEXICON motors with a facility that all the authorized Workshop of the TATA motors will continue and provide Breakdown Assistance within 60 minutes to 90 minutes which can be varied on the location. A toll-free number also provided in this regard.
The further case of the complainant is that at the time of going to Nepal the vehicle was in breakdown at Ganpatganj at about 6-00 – 6-30 P.M. due to mechanical fault. He then informed to the given toll-free help number to the Authorized person of TATA Motors to repair the same breakdown who received the massage but remained indifferent to help the complainant by repairing of the vehicle from the place of breakdown and also not pay heed to his request. Luckily, on the date of accident one engineer come from the Saharsa District town of Bihar and inspected the damage at his place and demanded Rs. 6,550/- for towing the vehicle to Purina TATA Motors showroom from Ganpathganj. Due to the negligence caused by the 24X7 Road Assistant program the vehicle of the vehicle was kept in stationary condition at Ganpathganj in non-operating condition and getting damaged day-to-day due to the deficiency of service on the part of the O.Ps. The complainant also provided another policy being No.100017536 proving facility of 48 months extended warranty which was valid till the date of registration i.e., 17/05/2011. The complainant requested the O.P. several times to repair the damage but the O.P. remained indifferent though the vehicle was under valid Warrenty of 4years. The cause of action also arose in the specified Warrenty period i.e., on 29/09/2014. At last, the petitioner issues advocates notice on 02/01/2015 but the O.P. did not respond to it. So, the complainant has come to the Ld. Forum for relief as prayed for.
The petition has been contested by the O. Ps by filing written version denying all the material allegations as levelled against them contending inter alia that the instant case was not maintainable in its present from. The petition is vague baseless and it has been filed with mala fide intention.
The further defense case is that no expert report from a recognized laboratory has been filed so the nature of deficiency in service without any documentary evidence the complaint is not maintainable.
The further defense case is that before filing the case the complainant did not serve any demand notice to the O. Ps before filing the present complaint.
The further defense case is that it is the mandatory requirement under the Consumer Protection Act, 1986 and rules before filing any complaint a prior demand notice is necessary to be served upon the O. Ps by the complainant. As such the present complaint is to be dismissed.
The further defense case is that the onus lies on the complainant to show that the relief contemplated u/s. 13 can be given on the defect in goods supplied or the deficiency in service provided to the complainant. For the instant case there was no manufacturing defect of the said purchased vehicle and there was no deficiency of service as such the petition of complaint is liable to be dismissed.
The further defense case is that the complainant suffered due to his own negligence and not any fault on the part of the O. Ps.
The further defense case is that the complainant could afford and allow his car to get damages as the complainant failed to pay the towing charge of the vehicle for transportation of the said vehicle to the nearest service center. So, considering such facts and circumstances the instant case is liable to be dismissed with heavy cost.
In order to prove the case, the complainant was himself examined as P.W.-1 and cross-examined. No other witness was examined on behalf of the O.Ps.
Ld. Forum/Commission after hearing the case came to a conclusion that the towing charge demanded by the technical hand of the company was genuine one and as the complainant was not agreed to pay the same, there was no deficiency of service on the part of the OP/Company and for that reason, the consumer complaint was dismissed on merit.
Being aggrieved with the Final order this appeal follows on the ground that The Ld. Forum has failed to appreciate the Jennine cause and grievances of a consumer.
The appeal was contested by the OP/Respondents by furnishing WNA.
Both sides exchanged the WNA and conducted the hearing of appeal through their Ld. Advocates.
Decision with Reason
Ld. Advocate Mr. Joy Choudhary and Dipsikha Chakraborty at the time of Argument mentioned that the deficiency in service of the respondents is vivid in this case. The vehicle in question was not in proper function while the appellant was traveling with his family from Balurghat to Nepal. At Ganpathganj, Dist: Supal(Bihar) on 29th September 2014 at about 6:30 PM the vehicle completely stopped for disfunction. The appellant rung up to 24x7 service of the company but they did not turn up. Next date they demanded money from the appellant for towing the vehicle to Purnia when nearest service station was Mahakali Motors nearest to the spot of incident. As per available data the Respondent are dutybound to provide free towing and service at nearest service station and within no time. But in this case, they did not turn up in time and respond within sixty minutes which was provided as per stipulations. They tried to take appellant for a ride by way of towing car to Purnia and demanded money for towing the vehicle transportation cost in question when the appellant eligible to get free service from the respondent. The respondent left the car unattended at Ganpathganj, Bihar and the same is rotting there due to deficiency in service and unfair trade practice on the part of appellant. The poor consumer is suffering from colossal financial loss beside acute mental agony. The Commission below did not consider the agreement printed in manual and the distance of the nearest service station resulting which the appellant suffering from irreparable loss.
Ld. Advocate of respondent No 1 Mr. M. Pal at his turn canvassed the argument to the points that The Opposite party No. 1/ Respondent No. 1 has only collected the premium from the Proposer/Complainant/Appellant and remitted the same Opposite Party No.2; The Manager, 24*7 on Road Assistance program of Tata Motors apart from this there is no liability to be borne by the Opposite Party No.1/Respondent No.1. The Opposite Party No.1 /Respondent No. 1 merely acted as intermediary between the Complainant/Appellant and the Opposite Party No.2/ Respondent No.2.
He further argued the complainant/ Appellant has purchased a policy from the Opposite Party No. 2/ Respondent No.2 and it is well known fact each policy comes with a terms and conditions. One very vital condition of this agreement was that towing charges were free maximum up to 15kms in Non accident cases to the nearest TATA Motors Authorized workshop. The same has also been brought on record before the Ld. D.C.D.R.F, Malda and clearly mentioned in the Final Order and Judgement dated 19.03.2021.
Ld. Advocate Mr. J. Gangaly on behalf of Respondent No.2 and 3 (OP No. 2& 3) mentioned that the Ld. forum observed that on perusal of the Brochure under the 24x7 ROAD ASSISTANCE PROGRAM is car to car winching and towing in non-accident case to a maximum of 15kms to the nearest Tata Authorized workshop. Towing of change at actual beyond the same to be paid to Asp in cash. (Any Ferry Charge levied in relation to the vehicle being towed paid by the Customer in actual in cash). In the petition of complaint, it has been mentioned that Rs. 6550/-was demanded for towing the vehicle to Purnia Tata Motors showroom. But it has not been mentioned in the petition the road distance between Ganjpatganj and Purnia. On searching the net, the road distance in between Ganjpatganj to Purnia was found to be 130km. So, the Engineer rightfully claimed Rs.6550/- for towing the vehicle. The complainant did not pay the amount for which the Ops cannot be held responsible if the Complainant paid the amount for which the Ops cannot be held responsible if the Complainant paid the amount to the Engineer for towing the vehicle, then the question of availing scheme 24x7 will come into play. The Complainant submitted at that time the Complainant was Nepal, that is why the amount was not paid. It is a fact that at the relevant time the Complainant was at Nepal but after return back from Nepal, The Complainant did not pay the amount. So, the Complainant is not entitled to get any compensation as prayed for. Moreover, the Complainant has not come with a clean hand.
After hearing both sides and on perusal of relevant documents like brochures and the documents relating to 24*7 service scheme introduced by the Tata Motors Ltd., The 24*7 Road Assistance Service was available to the customers of Tata Motors and free towing charge was available to a maximum 15kms from Spot where non-accidental breakdown taken place subject to exitance of Tata Motors authorized workshop or service center was located within 15 K.M.
But in this case, the authorized workshop was located at Purnia which was at a distance of 130 KM from the spot and for that reason, Rs.6500/- was rightly demanded for towing charge and not performing the obligatory part on the part of the complainant, he cannot Seek any equitable relief against the other parties of such agreement.
In the Particular dispute Ld. Forum has rightly adjudicated the dispute and in appeal case, the Commission could not detect any merit at all.
Hence It is ordered
That the instant appeal be and the same is dismissed on contest without any cost.
Let the order be Communicated to the Ld. DCDRC, Malda.
