Orissa

Jajapur

CC/4/2021

kulamani Ojha. - Complainant(s)

Versus

The Manager,Axis Bank Ltd. - Opp.Party(s)

Pitambar Mishra.

13 Dec 2021

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JAJPUR.

                                                        Present:    1.Sri Pitabas Mohanty, Member,

                                                                          2.Miss Smita Ray,  Member (w).                       

                                                      Dated the 13th day of December ,2021.

                                                      C.C.Case No.04 of 2021

Kulamani Ojha, S/O Batakrushna Ojha

 Vill- Madhusudan Nagar back side of Sishu

Mandir,P.O.Dhabalgiri,P.S.Jajpur Road

                                                    …..Petitioner                                                                                                                                      

 

 

1. The Manager AXIs Bank Ltd, Plot No.501, Center point,Third floor,At/P.O. Kharvel Nagar,Bhubaneswar,

 Dist.- Khurda.

2. Axis Bank Ltd. Regd.office ,At.Trisul,3^rd floor,OPPosite ,

Samartheswar Temple,Law Garden, Ellis Bride,Ahamadabad

  Gujurat.

3. Krishna Vaahan Pvt.Ltd ,Tata Motors commercial Dealer

At.SH-10-Mandiakudar,Sundargarh,Dist. Sundargarh

4. Vandana Trailors & Body MFG Pvt.Ltd,Thakurdiyapara Main Road,

Sakti,Dist.Janjgiri champa,state- Chhatisgarh.

5. TATA Motors Ltd, Regional office

Commercial & Passanger Vehicle, 2^nd and 3^rd floor,

Reene Tower,East-1,1842 Rajdanga,main Road,Kasba

West Bengal.

6. Principal Nodal Office, Axis Bank Ltd, NPCL,& 5^th floor,Gigaplex

Plot No.1,T.5,Mids,Navi Mumbai, State.Moharastra.

                                                                                                                             ……………O.Ps.

                                                                                                                                                                                                                                     For the Complainant:                      Sri  P.K.Dash,  Pitamber Mishra, Advocates.

For the Opp.Party: No.1,2 and 6     Sri A.K.Pahil, Sri B.Kar,   Advocates.

For the Opp.Party No.3                     Sri S.C.Behuria,Advocate

For the Opp.Party : No.4                 Sri S.Panda, Advocate

For the Opp.party No.5                   Sri B.C.Rout, S.K.Samal, Advpcates                                                                                                             

                                                                                                    Date of order:  13.12.2021

MISS  SMITA  RAY, LADY MEMBER .                                                  

The petitioner has filed the present dispute alleging deficiency in service as well as unfair trade practice as the O.Ps specially O.P.no.3 and 4 have sold a defective Tata LPS 4018 CRBSIV & FLST BED TRAI LOR) 40 FEET-SEMI.

            The facts as stated by the petitioner in the complaint petition shortly are that the petitioner being an unemployed youth to maintain his livelihood by means of self employment came in contact with O.P.no.1 with the approach to sanction a vehicle loan in favour of his petitioner . Accordingly the O.P.no.1 sanctioned Rs.30,79,751/- in favour of the petitioner and remitted the sanctioned amount to O.p.no.3 who is the authorized dealer of Tata Motors (O.P.no.5) for selling the TaTa LPS 4018 ( RBSIV) vehicle. After receipt of amount the O.p.no.3 hand over the above vehicle to O>P.no.4  who is the Tailors and body builders. The O.P.no.4 after completion of the body fitting hand over the vehicle on 23.03.2021 to the petitioner at Jajpur Road. Thereafter it is observed that 40 feet flat bed Tailor is not matching with Tata LPs 4018 ( RBSIV vehicle.  Thereafter it is observed that 40 feet flat Bed tailor is not machining  with Tata LPs 4018 ( RBSIV) model Engine since it is irregular size Tailor of the vehicle. When the vehicle starts it creates heavy vibration for which caused with collide with the Trailer and for the said reason the vehicle could not be played till yet. The O.p.no.4 has  received Rs.8,90,000/- from O.P.no.1,2 and 3 to prepare 40 feet semi flat Bed Tailor and after verification it is observed that the same is not Tata Company product. In the mean time the petitioner has paid Rs.1,61,150/-  to O.p.no.1 and 2  towards the Emi against the loan. The O.P.no.1 and 2 have forced to purchase the aforesaid vehicle from O.P.no.3  on 13.10.20 the petitioner has lodged complaint to O.P.no.1 and 2 as well as intimated by mail and over telephone to the O.Ps regarding defective tailor. The petitioner also has sent notice to O.p.no.1 ,2 and 3 on 26.11.2020 regarding non compliance of supplying defective and irregular size of 40 feet semi flat Bed Tailor. The O.P.no.1 and 2 on 13.10.20 though have given assurance to give best service but till yet they have not resolved the matter rather on 05.01.21 the O.Ps have threatened  the petitioner to take legal action in case the petitioner fail to pay the EMIs .Accordingly finding no other way the petitioner has filed the present dispute for redressal his grievance with the prayer to direct the O.ps.

1.to deduct Rs.8,90,000/- from the loan amount of Rs.30,79,751/-.

Direct the O.P.no.3 and 4 to supply DLT SEMI FLAT BED TAILOR in place of 40 feet semi flat bed tailor chasis no.VIBM/606/03/2019/2020

To pay Rs.15,000/ towards loss and Rs.500,000/( five lakh) as compensation for mental agony and harassment may be awarded in favour of the petitioner.

            After receipt of the notice the O.ps appeared as well as filed the written version in respect of their defence.

            The  O.p.no.1,2 and 6 have filed the written version denying the allegation of the petitioner as well as taken the stand that the O.p.no.1 ,2 and 6 have never pressurized the petitioner to avail the loan for the alleged vehicle rather the petitioner for his own interest has availed the loan of Rs.30,79,751/- vide agreement No.CVR002405132996 dt.05.03.20 which was disbursed on 07.03.20  for purchasing a Tata LPS 4018 CRBSIV & FLAT Bed  Tailor vehicle bearing No.,OD-04-p-5875 as well as has agreed upon to clear up the loan amount along with interest in 47 installments having each installment amounting to Rs.80,575/- starting from 05.04.20 to 05.08.24. As per term and condition of hypothecation agreement in case of default of payment the O.P.no.1,2 and 6 as financer are empowered to seize and sale the vehicle as per law since O.p.no.1,.2 and 6 are the owner of the financed vehicle till the loan amount has not been recovered from the petitioner. At present the petitioner is a defaulter  and in order to avoid the payment of EMIs the petitioner  has filed the frivolous dispute against the O.p.no.1,2 and 6  only to avoid the payment of loan installment since in respect of the petitioner’s grievance the O.p.no.1,2 and 6 are not the necessary party to resolve the issue .Hence the present dispute is liable to be dismissed against O.p.no.1,2 and 6 .

            The O.p.no.3 also has filed the written version denying the allegation of the petitioner .In the written version the O.p.no.3 has taken the stand that as per request of the petitioner the O.p.no.1,2 and 6 have sanctioned the loan to purchase TATA LPS 4018 CRBSIV & FLAT BED TRAILOR ) . At the time of  manufacturing the Trailer by O.P.no.4 the petitioner was                            suppressed the same and after completion the vehicle was delivered by the staff / driver  to the petitioner. In this context it is submitted that in case there is some defect that must be drawn to the knowledge of the O.P.no.3 earlier but in the present case the petitioner  has made his allegation after lapse of six months  i.e from 16.03.20 to 13.10.20. In addition to it as per “ warranty clause of Tata Motors the O.P.no.3 is ready to provide the duty to the petitioner but “ guarantee” i.e replacement which can not be possible on the part of O.P.no.3 as per term and condition signed by both the parties. In view of the above factual aspects the present dispute is liable to be dismissed against O.P.no.3 having no merit.

            In the written version filed by O.P.no.4 it is stated that the present dispute is not  maintainable in this commission due to want to territorial jurisdiction on the ground the Trailor has been prepared at Sakti in the Dist of Janjgir –champa, where the cause of action arises. As such this commission has no territorial jurisdiction to entertain the present dispute. Further the O.p.no.4  has stated that the petitioner has not clarified under which provision of law he has filed the present dispute against O.P.no.4. In addition to it in case there is some defects in the Trailer the same should be brought to the workshop for due setting. Accordingly the dispute is liable to be dismissed as there is no cause of action against O.p.no.4.

            Like wise OP.No.5 (Tata Motors) has filed the written version taking the stand that the O.p.no.5 being the manufacturer of commercial and private vehicles provided the same to the authorized dealer on “ principal to principal basis” so far as the allegation of the petitioner is concerned the O.p.no.5 is not the manufacturer of the trailer and  the same has been manufactured by O.P.no.4 i.e Vandana & Body MPG Pvt Ltd and sold to the petitioner. The O.p.no.5 has manufactured the TaTa LPS 4018 CRBSIV vehicle and same was sold by O.P.no.3 Krishna Vahan Ltd and there is no defect. As O.P.no.5 has not manufactured the Trailor the petitioner has no locus standi to implead O.P.no.5 as necessary party for which the dispute is liable to be dismissed against O.P no.5.

            After perusal of the record  in details we have gone through the documents and pleading of both the parties in details as well as inclined to decide the dispute as per our observations below:

            1.Admittedly the petitioner has purchased the vehicle bearing No.OD-04-P-5875 taking loan of Rs.30,79,751/- from O.P.no.1 and 2 and as per complaint petition due to defect in the Trailor the petitioner  was not in the position to ply the vehicle for which because defaulter. Accordingly  the petitioner has filed the present dispute along with interim  petition   for redressal of his grievance. This commission in considering the fact and circumstances of the present dispute  directed the O.p.no.1 and 2 not to take coercive action against the financed vehicle since the petitioner has 2 installment. In addition to it the petitioner was also directed to pay the future installment to the O.p.no.1 and 2 regularly.

            The O.p.no.1 and 2 in their written version have stated that after sanction of the loan of Rs.30,79,751/-  the said amount has been remitted to O.P.no.3 for delivery of the vehicle to the petitioner. At present the petitioner is not paying the monthly installment as well as has became defaulter,  Similarly the O.p.no.3 in the written version has stated that after receipt of the loan amount the O.p.no.3 has paid Rs.8,90,000/- to O.p.no.4 for manufacturing the 40 feet SEMI Bed Trailor  the same was fixed with the vehicle  at the time the petitioner was supervising  the same . According to O.P.no.3 in case there was some defect the same can be rectified as per term and condition of warranty of Tata Motors but guarantee i.e replacement of Trailer is not possible on the part of O.p.no.3.

            The O.p.no.4 in the written version has stated to clarify under which provision of law the petitioner has filed the dispute as well as since all the O.ps are residing in several places for which this commission has no territorial jurisdiction to decide the present dispute . In addition to it is stated by O.P.no.4  that manufacturing and delivery of the Trailor were held at Sakti in the Dist of Janjiri-Champa  in Chhatisgrh. As such cause of action if arises that is at Sakti in the Dist Janjgir-Champa,Chhatisgarh but not in this commission .

            The O.P.no.5 Tata Motors has stated that the alleged Trailer has not been manufacturered  by O.P.no.5 rather the same has been manufactured by O.P.no.4. Further the vehicles manufactured by the O.p.no.5  provides the same to the authorized dealer “ Principal to Principal basis “            

            In view of the above assertions and counter assertions we are inclined to clarify the stand taken by O.P.no.3 that in case of any defect of Trailor the same can be rectified as per term and condition of warranty of Tata Motors but it has to be remembered that the allegation of the petitioner relates to defect of Trailor which has not been manufactured by  O.P.no.5( Tata Motors). As such we are inclined to hold that the term and condition of warranty of Tata Motors is not applicable to defect in Trailor. More over the stand taken by O.P.no.4 is also not sustainable in the eye of law on the ground the petitioner has filed the present dispute as per section 34(d) of C.P.Act,2019 i.e “ the complainant resides or personally works for gain” .In addition to it as per observation of Hon’ble Supreme Court reported in 1954-SC-340 the jurisdiction both ( pecuniary & Territorial) can be overlooked  treating the same as technical in case it is not effect the merit of the case. In the present case as the grievance of the petitioner relates to defect of Trailor hence it will not effect the merit of the case for which the objection regarding territorial jurisdiction as raised by O.P.no.4 is hereby rejected.

            Owing to the above clarification from our side it is cristal clear that there is patent deficiency in service as well as unfair trade practice on the part of the O.P.no.3 and 4 for which the present dispute deserve to be allowed. Hence this order .

                                                            O R D E R

The dispute is allowed against O.p.no.3 and 4 and dismissed against O.p.no.1,2 ,5 and 6. The O.Pno.3 and 4 are directed to replace a new 40 feet SEMI FLAT BED Trailor in place of mismatching Trailor at their own cost to the best satisfaction of the petitioner or refund Rs.8,90,000/- with 12% interest from the date of filing of the dispute till its realization  . In addition to as the O.P.no.3 and 4 are jointly and severally liable for the alleged grievance of the petitioner as such the O.p.no.3 and 4  are directed to pay Rs.1,00,000/ (One lakh)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         as compensation and cost of Rs.20,000/- .The above direction shall be complied within 45 days after receipt of this order, failing which the petitioner is at liberty to take action as per law.

                    This order is pronounced in the open Commission  on this the 13th day of  December,2021. under my hand and seal of the Commission .