Date of filing:- 11/09/2017.
Date of Order:-20/04/2018.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (COURT)
B A R G A R H.
Consumer Complaint No. 43 of 2017.
Abhisek Agrawal S/o-Rabi Shankar Agrwal, aged about 25(twenty five) years, Occupation- Bussiness, resident of At-3C Gokuldham Ward No.6(six), P.O/P.S/dist-Bargarh. ..... ..... ..... Complainant.
-:V e r s u s:-
The Manager, Odessey Motors Bargarh having its place of business situated near Zeera Bridge, N.H 6(six) P.o/P.s/Dist. Bargarh. ..... ..... ..... Opposite Parties.
Counsel for the Parties:-
For the Complainant :- Sri S.P.Mishra, Advocate with other Advocates.
For the Opposite Party No.1(one):- Sri S.K.Samal, Advocate with other Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.20/04/2018. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief Facts of the case ;-
In pursuance of the provision U/s 12 of the Consumer Protection Act 1986 the Complainant has filed the case pertaining to the deficiencies of service caused on the part of the Opposite Party as envisaged hereunder.
The Complainant has purchased a vehicle namely Marurti Swift VXI, BSTV Model Car from the Opposite Party being financed by one I.D.B.I Bank, Bargarh Branch and got it registered with the R.T.A. Bargarh bearing Registration No. OD-17-H-5999 and was plying the same for his personal use, but during the subsistence of the warranty period of the same the said vehicle started giving trouble in it’s Air Condition System and also started giving less Mileage against the assured warranty condition giving much trouble to the Complainant to which he made complain before the Opposite Party on Dt.20.03.2017 & 27.03.2017 in writting stating therein that the same is having inherent manufacturing defects but the Opposite Party did not respond him which amounts to deficiencies of service as per him. Subsequently there after the Opposite Party attended to his complain and tried to sort out the said problem from his end by issuing Job card No-JC17002394 on Dt. 25.05.2017 but just after some days again the same problem occurred with the vehicle causing mental agony to the Complainant to which he reported before him again but the Opposite Party did not take any steps to rectify the problem putting him with irreparable loss with mental and financial & physical harassment .
Finding no way out the Complainant served him with a pleader notice through his Advocate on Dt.05.07.2017 by Regd. Post reminding him to do needful to rectify the same trouble with the vehicle but the Opposite Party did not respond to him as such has committed deficiencies of service thus has filed the case before the Forum with a prayer to replace the same car with a new one and for Compensation against his suffering from all counts to the tune of Rs. 5,00,000/-(Rupees five lakh)only. And in support of his case has filed some below mentioned documents.
Xerox Copy of the documents relating to the finance of the vehicle by the I.D.B.I. Bank.
Xerox Copy of the Tax Invoice.
Customer's complain regarding the defects.
Xerox Copy of Pleader Notice .
Perused the Complaint, the documents filed in it’s support and on hearing the counsel for the Complainant the case was admitted and notice was served on the Opposite Party, in response to the same the Opposite Party appeared before the Forum and submitted his version through his Advocate, which is a total denial to the case of the Complainant.
As per the rival contention of the Opposite Party is that it is an admitted fact that the Complainant has purchased the said car on Dt.13.12.2016 and also it has been admitted by him that the Complainant has complained before him regarding the trouble with the Air-condition of the car, and on his complain the Opposite Party had kept the car in his showroom vide Job Card No.7C17000032 for two days and examined the same and found the system OK as such returned the same too the Complainant with his satisfaction without any charge .
Again he has contended in his version that on the complain of the Complainant their staffs tested the vehicle on Dt.12.04.2017 vide Job card No.7C17000039, the cooling system, the and all other necessary testing by the help of the required machinery also conducted testing on the road by driving the same for 50(fifty) kilometer along with the Complainant and found everything O.K hence returned to the Complainant.
Further on Dt.27.04.2017 the Opposite Party attended the Complain of the Complainant regarding the Mileage vide the Job Card No-JC17000317 and conducted the required test over the same and requested the Complainant to come for test drive but he did not turn of. Again the Opposite Party has contended in his version that on Dt.27.05.2017 he attended the house of the Complainant through his technical staff namely Bhopal Shekhar Bhoi vide another Job Card No-JC17002394 and found that the Tyre pressure was low so he put required pressure and tested on the road by using special testing by Echono tested machine and found that the Mileage was OK and as such intimated the same to the Complainant over his Mobile Phone vide No-9437485533, subsequently thereafter has also conducted normal periodical ckeck up vide job card No-7C1700770 on Dt.30.05.2017 and hence has denied to have committed any unfair trade practice or deficiencies in rendering service to the Complainant and that has prayed to dismiss the case as a vexatious claim U/s 26 of the Act. And in support of their case has filed some documents as mentioned below .
1.Job card retail cash Memo Dtd.30.05.2017,(2) Dtd 27.05.2017 (3) Dtd 29.05.2017(4) Dtd. 13.04.2017 (5) Dtd.04.04.2017 (6) Dtd.03.03.2017.(7) Dtd.15.02.2017 (8) Dtd. 26.01.2017 (9) 18.12.2016 alongwith Xerox Copy of demanded repairs & Job Instruction capturing sheet, Job slip Dtd.12.06.2017 & Job slip Dtd.07.07.2017.
Having gone through the Complaint, the documents filed in it’s support and the version and it’s related documents and on hearing the counsels for their respective counsels feel it necessary to examine the following points for proper adjudication of the case.
Whether there has been commission of unfair trade practice or deficiencies of service on the Part of the Opposite Party ?
Whether the Complainant is entitled to the relief sought for by him ?
Firstly while dealing with the point of adjudication it reveals from the materials available in the record that the Complainant has made complain with regard to the problem of the Air Condition system, and the Mileage problem of the vehicle in question before the Opposite Party for several time, but it is also found from the record that all the time the Opposite Party have attended him and has claimed to have settled the same under different Job card issued in relation to those complain and further more he has tested all the defects as complained by the Complainant by his expert personal and with the help of the machinery required for the purpose and have also have delivered the same to the Complainant, but on the contrary the Complainant has not tried to collect any test report from any technical expert to authenticate his complain with regard to his allegation of inherent manufacturing defects lies with the said vehicle nor have drew the attention of the manufacturer of the said vehicle to establish his case, nor made him a party in the case who is a necessary party against whom his claim of replacement could be made, if at all it would be found to be true, so in this particular case, it has been argued that the Opposite Party has done his part of Job as entrusted by the manufacturer of the same vehicle by giving his best effort to rectify the alleged problem with the same time to time, And in the absence of the manufacturer beyond the service provided by the present Opposite Party cannot be expected.
But the advocate for the Complainant has filed his written arguments and also vehemently argued before the Forum with a plea that all the averments made by the Opposite party are manufactured and concocted story and that he has not taken proper care in giving proper service to the Complainant as it is also seen from the repeated complain of the Complainant regarding recurring defects with the same vehicle, here it can be deduced that if had it been properly taken care up then why he would run after the Opposite Party and also it is seen as argued by the advocate for the Complainant that the documents which are filed by the Opposite Party does not bear any endorsements of the Complainant, in view of such circumstances we are of the view that the Opposite Party is deficient in giving proper service to the Complainant and causing mental, physical and financial harassment to him, but so far as the prayer portion of the Complainant with regard to the replacement of the same the Complainant has failed to prove his case of manufacturing defects with the vehicle in the absence of any expert opinion coupled with the cause of not making party to the manufacturer of the vehicle concerned hence in view of the above circumstances of the case and because of non joinder of the necessary party, the manufacturer, we are of the view that the Complainant has failed to prove his case against the present Opposite Party so far as the manufacturing defects of the same and for replacement of the same is concerned accordingly it is answered in favor of the Opposite Party.
Secondly with regard to the claim as sought for by the Complainant with regard to deficiencies of service and also facts of his suffering due to the same, as we have already discussed in details of the case in our foregoing paragraph and have already opined partly in favor of the Complainant with regard to the allegation of deficiencies of service and have taken a negative view to the claim of the replacement of the same, hence our order follows.
O R D E R.
In view of the above facts and circumstances of the case, the Opposite Party is directed to take proper measures in repairing the reccuring defects with the Vehicle to the satisfaction of the Complainant and deliver him with the same with fully rectified condition within one month from the date of receipt of the order with free service charge and also directed to pay an amount of Rs. 10,000/-(Rupees ten thousand)only in terms of compensation for the sufferings of the Complainant, in default of which suitable legal action would be taken and awarded amount shall carry an interest @9%(nine percent) per annum till the actual realization of amount, hence the case of the Complainant is partly allowed against the Opposite Party. And as such is pronounced in the open forum today i.e. on Dt.20.04.2018 and the same is disposed off.
Typed to my dictation
and corrected by me.
(Sri Krishna Prasad Mishra)
P r e s i d e n t I agree
(Ajanta Subhadarsinee)
M e m b e r (w)
