IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.
Present: 1.Shri Biraja Prasad Kar, President,
2.Sri Pitabas Mohanty, Member,
3.Miss Smita Ray, Lady Member.
Dated the 24th day of September,2014.
C.C.Case No.111 of 2013
Bhaskar Nayak, S/O Batakrushna Nayak
Vill./P.O. Sunguda,
P.S. Barchana , Chandikhole,
Dist.Jajpur. …… ……....Complainant . .
(Versus)
1.The Managing director,Aditya Auto Care (p) Ltd,NH-5,plot-209,Mirzapur
At/P.O/Panikoili, Dist.jajpur.
2. The Manager,Cholamandalam Investment and Finance Co.Ltd,Devkunj
2nd floor,Above ICICI Bank(Main)Jajpur Road,Dist.Jajpur.
3. The M.D,Mahindra Navistar Automatives Ltd,marketing Department ,3rd floor
Mahindra tower,Worli….. Mumbai. …………………..Opp.Parties.
For the Complainant: Sri N. Parida, M. Balsamanta, Advocates.
For the Opp.Party No.1: Sri A.K.Kannungo, P.P.Mohanty, G.D.Senapati
Sri B.K.Tripathy, Advocates.
For the Opp.Party No.2: Sri P.K.Ray, Sri A.R.Sethy, Sri S.N.Rana, Advocates.
For the Opp.Party No.3: Sri Jagajit Panda, P.K. Mohapatra, Advocates.
Date of order: 24. 09. 2014.
SHRI PITABAS MOHANTY, MEMBER .
The petitioner has come with this complaint petition alleging deficiency in service as well as unfair trade practice on the part of the O.Ps. due to selling a defective bus to the petitioner.
The grievance as stated by the petitioner in the complaint petition in short is that being an unemployed and poor person the petitioner purchased a LCV Mahindra Navy star Bus bearing Regd. No.0D-04-3227 from O.P no.1 on 05.11.2012 by availing loan from O.P no.2. It is alleged by the petitioner that after six month from the date of purchase at the time of plying the vehicle there was abnormal engine problem due to manufacturing defects for which the
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petitioner approached the O.P no.1 to replace / exchange the defective vehicle since the defects occurred during the warranty period of 1and 1/2 years . As the O.P no.1 did not take any action ,the petitioner finding no other way after approaching higher Branch of O.P no.1 through served Advocate notice but the O.P no.1 did not take any steps to replace the defective vehicle. According to petitioner due to non replacement of the defective vehicle at present the petitioner is not in a position to pay the installment of the financer. Accordingly the petitioner finding no other way has filed the present dispute with the prayer to direct the O.P no.1 to replace the defective vehicle as well as to pay the installment of the financer amounting to Rs.2,00,000/- towards EMIs.
There are three O.Ps. who after appearance have filed their counter in support of their defence denying the allegation of the petitioner.
As per written version of O.P no.1 after purchasing the alleged vehicle on 05.11.2012 as per warranty condition the petitioner availed the free service on 04.12.2012,09.02.2013,09.05.2013,28.05.2013,24.06.2013,13.07.2013,22.08.2013,27.08.2013, 11.09.2013,17.10.2013,05.11.2013 and 25.11.2013 to the best satisfaction. At the time of free service the O.P no.1has thoroughly checked and repaired vehicle by the experts on free of cost. The petitioner was also instructed not to repair the vehicle by any inexperienced experts as well as has been adviced to take proper maintenance of the vehicle since it was detected at the time of free service that the vehicle has been repaired by unauthorized and inexperienced exparts so also the petitioner is not taking proper care to maintain the vehicle properly. Subsequently on 25.11.2013 as the vehicle suffered breakdown at Nisamani Cinema Hall ,Cuttack , the O.P no.1 after receipt of the information attended the vehicle and repaired the vehicle with the technical persons and the vehicle was repaired successfully. During repairment it is also noticed by the O.P no.1 that the fatal health of the alleged vehicle which is only due to changing of the driver from time to time . Though owing to the above factual aspects the petitioner has filed a complaint on 04.12.2013 against the O.P alleging manufacturing defects of the vehicle. But during pendency of the present dispute the alleged vehicle again suffered break down at Chandikhole and after receipt of the information the O.P no.1 successfully repaired the vehicle by their mechanics and Engineers. Similarly during the pendency of the present dispute the petitioner again come to the workshop with the vehicle on 06.01.2014 which is after the period of warranty since the warranty period of the alleged vehicle is one year instead of one and half year. The O.P no.1 as a good will gesture and to maintain the business peace and harmony replaced the gear box of the vehicle without charging the cost of the gear box which cost comes
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to Rs.90,000/- and only charged Rs.7,307/- towards Gasket oil. Further as there is no evidence regarding manufacturing defect the dispute is liable to be dismissed against the O.P no.1 and owing to above narrated situation the O.P no.1 is no way liable to pay the compensation as claimed by the petitioner in the complaint petition.
Like wise as per written version of O.P no.2 it is stated that though there is no allegation against O.P no.2 .On the other hand this dispute is not maintainable since the alleged vehicle is for commercial purpose. The petitioner also has not intimate the defects of the alleged vehicle to the O.P party. As per term and condition of agreement the present dispute should be decided by the Arbitrator. More over the plea of the petitioner regarding non payment of EMI is not sustainable in the eye of law. As per prayer of the petitioner this O.P no.2 is no way liable to replace the vehicle. Accordingly this dispute is liable to be dismissed since there is no deficiency in service on the part of O.P no.2.
Lastly as per written version of O.P no.3 it is submitted that the O.P no.1 is not the agent of O.P no.3 rather the O.P no.1 is purchasing the vehicles like the present vehicle to re-sale the same . The O.P no.3 is working with O.P no.1 principal to principal basis. Apart from due to want of any communication regarding the alleged grievance of the petitioner with O.P no.3, it is crystal clear that there is no privity of contact of the petitioner with O.P no.3.
Besides this the present dispute is also not maintainable since it has been purchased by the petitioner for commercial purpose for which the petitioner is not a consumer.
In addition to it so far as the prayer of the petitioner to replace the vehicle the same is also not tenable in the eye of law in absence of any evidence / opinion from the expart that the alleged vehicle suffered from manufacturing defects rather as observed the O.P no.1 has taken proper steps during warranty and after warranty in respect of the alleged vehicle.
In view of the above narrated situation the dispute is liable to be dismissed.
After hearing we have perused the record in details. On verification of the record we are inclined to dispose of the present dispute as per our observation stated below.
- Admittedly as per para-7 of the complain petition the petitioner being an unemployed and poor person though has purchased the alleged Bus but there is neither any evidence nor any averment in the complaint petition that such purchasing of alleged Bus is the only source of income as well as such which has been purchased for self employment to earn bread and butter of the petitioner . In absence of such aspect in the complaint petition we are constrained to hold as per observation of Hon’ble National Commission reported in 2012 (4)CPR-37(NC) that the petitioner has purchased the
Alleged Bus with primary aim to earn profit for which the present dispute is not maintainable since it is for commercial purpose
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Further it is alleged by the petitioner that the alleged vehicle suffered from manufacturing defects for which he has filed the present dispute for a direction to the O.Ps. to replace the defective vehicle by replacing a new vehicle . As against such grievance from the side of the petitioner we have verified the job cards of free service of the alleged vehicle from 05.11.2012 to 05.11.2013. As per complain of the petitioner the O.P no.1 has repaired the vehicle to the satisfaction of the petitioner. After warranty the O.P no.1 also changed the gear box of the alleged vehicle on 06.01.2014 without charging the cost of gear box as conformed as per letter of O.P no.1 vide Annexture-4 with reference to the plea vide para-h of the written statement. In such aspect we are constrained to hold as per observation of Hon’ble National Commission reported in 2014(3)CLT-p-507,(Santnam Singh Vrs. Mahindra & Mahindra Ltd & Others) wherein it is held that:
“ that only the defective parts can be replaced, but not the whole vehicle “.
In this context we are inclined to hold that :
- during the period of warranty as well as prior to filing the dispute the petitioner has never alleged that the alleged vehicle suffers from manufacturing defects. If so the petitioner has not produced any evidence / opinion from the independent expart indicating that the
alleged vehicle suffers from manufacturing defects as per observation
of Appellant Forums indicated below :
1.2009(1)CPR-128-Odisha
2.2010(1)CPR-19-NC
3.2010(1)CPR-118-NC
4.2011(1)CPR-68-NC
5.2006(1)CPR-227-NC
6.2004-CTJ-1088-NC
Accordingly in absence of any opinion from the independent approved expart regarding manufacturing defects we are in the opinion that such defects of the alleged vehicle can not be treated as manufacturing defects rather it is mechanical defects which is different from manufacturing defect as per observation of Hon’ble National Commission reported in
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2013(2)CPR-504-NC . Similarly due to want of any privity of contact the manufacturer is also not liable for the alleged grievance of the petitioner as per observation of Hon’ble National Commission reported in 2005-CTJ-484-NC.
In view of the above clarification / observation we are in the opinion that the present dispute is not maintainable and liable to be dismissed.
O R D E R
In the result the dispute is dismissed . No cost.
This order is pronounced in the open Forum on this the 24th day of September ,2014. under my hand and seal of the Forum.
(Shri Pitabas Mohanty)
(Shri Biraja Prasad Kar ) Member.
President. Typed to my dictation & corrected by me
(Miss Smita Ray) (Shri Pitabas Mohanty)
Member. Member.
