Orissa

Debagarh

CC/1/2018

Priyadarsini Soumya Mahapatra, W/O-Kalyan Kishor Kar - Complainant(s)

Versus

The Proprietor, Orbit Motors, Rourkela - Opp.Party(s)

12 Oct 2018

ORDER

IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,DEOGARH

C. C No- 01 /2018

Present-       Sri Dipak Kumar Mahapatra, President, Smt. Jayanti Pradhan,

Member (W) and Smt. Arati Das, Member.

 

Priyadarsini Soumya Mahapatra

W/O-Kalyan Kishore Kar

R/O-Kacherisahi,P/.O/P.S/Dist- Deogarh.

Vrs.

1. The Proprietor,

          Orbit Motors, Rourkela,

         Dist-Sundargarh, Odisha

 

2. The Manager,

         Odyssey Motors, Near CPP Chowk,

          At-Kulad, P.O/P.S/Dist-Angul.

 

3. The General Manager,

         Royal Sundaram General Insurance,

         2^nd Floor, Plot No.309/P, Udit Nagar

        Opp To Ambedkar Chowk,

          Dist-Sundargarh.

 

            For the Complainant        : -         Nemo.

            For the Opp.Party-1           :-         Sri. R.M Behera, Advocate,

            For the Opp.Party-2          :-          Sri. P.K .Dash, Advocate.  

            For the Opp.Party-3          :-          Sri. B.K.Purohit &  Sri R.L.Pradhan, Advocates.

 

 

DATE OF HEARING: 21.08.2018, DATE OF ORDER: 12.10.2018.

Smt. Jayanti Pradhan,Member (W) -Brief facts of the case is that on dtd.27.07.2016 the Complainant has purchased a brand new Maruti Swift Dezire Car from the O.P-1 having warranty on it for 2(Two) years  or 40,000 k.m. whichever is earlier. As the said car of the Complainant met an accident on dtd.09.10.2016 near village Kosala Under Angul Police Station, the Complainant has informed the matter to the police as well as to the O.P-3 and shifted the car to the garage of the O.P-2.The car was dismantled at the garage of the O.P-2 and a claim was lodged with the O.P-3 and was settled by the O.P-3 accordingly. At the time of taking delivery of the car from the O.P-2, on the job card the O.P-2 gave a remark regarding the defect of the Turbo Charger which needs to be replacing immediately. Then the Complainant on dtd. 12.10.2017 shifted the car to the showroom of the O.P-1 and claimed to replace the turbo charger as it was within warranty period as the car was showing a reading of 36,594 kms. in 15 months accruing on the day. But theO.P-1 denied to replace the same as not authorized to replace any parts under warranty scheme which got damaged by accident as per the guidelines of the company which is reflected in the customer manual provided at the time of sale of each vehicle. But the Complainant informed that the Turbo Charger was not damaged in accident for which no replacement was done by the O.P-3 after proper survey at the garage of the O.P-2.So the Complainant claims that the said items was damaged during normal course of running. The O.P-1 stated that if the turbo charger was defective than the O.P-2 should have repair or replace the same while the said car was at their garage after accident and the Complainant has never complained about the Turbo Charger before the O.P-1 prior to accident and the was defective due to improper care and maintenance by the Complainant. The O.P-2 in this case cleared that as the said part was not damaged in the accident which is evident from the photographs of the car in question for the reason it was not enlisted in the list of damaged parts by the surveyor of the O.P-3 and the complainant has reported the same was defective before the accident. Again he reported that as the said part was not presently available with him, he (O.P-2) being authorized agent, could not be able to replace the same. The O.P-3 answering to the charges replied that they

have settled the claim as soon as after survey and estimate report obtained. They have nothing to do with the replacement of turbo charger as it was not found damaged during survey. So the O.P-1, 2 & 3 placed their defence  as above and prayed to discharge them from the allegations made against them by the Complainant.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act.1986?
2. Whether the O.P has committed any Deficiency in Service to the Complainant?      

From the above discussion and materials available on record we inferred that the Complainant is a consumer of the O.Ps as the Complainant has purchased the Car from the O.P-1, O.P-2 is the Authorized service station who has repaired the accident car and from the O.P-3 he got the Car insured. Apart from the written statements submitted by the O.P-1, there is a major difference observed from the entries made by the O.P-1 relating to the service dates in 2^nd and 3^rd free servicing. Here it is mentioned that the 2^nd free service was done on dtd. 29.09.2016 and the 3^rd free service were done on dtd. 08.01.2016 which seems quite impossible, unnatural and unbelievable. Again the O.P-1 simply denied and avoid the complain regarding the fault in the turbo charger saying that the same has been occurred after the accident.   But no supportive evidence such as expert evidence of a mechanic or a mechanical engineer or report from service engineer or technical expert’s opinion is filed by the O.P-1.In addition to that if the Turbo Charger was damaged during accident, firstly the Insurance surveyor must have observed it at the time of taking photographs and dismantling of the damaged parts at the garage of the O.P-2. Again after completion of repairing and handing over the car to the Complainant, the car was in good running condition but only defect was in the turbo charger as it was producing noise and giving less mileage due to that defect arose during normal course of use. If the Turbo Charger would have got damaged in the accident the car could not have even start and till now it is in running condition

with reduced mileage. So it is presumed that the Turbo Charger was not defective due to accident. The O.P-1 has taken the place of improper maintenance of the car by the Complainant just to shift as well as get rid of burden of covering warranty of the defective Turbo Charger for the Complainant. This matter has been well settled in the case of M/S Tata Motors Ltd., vs Sharad & Anr. decided by National Consumer Disputes Redressal Commission,  New Delhi on 19^th  May, 2016. Hence the O.P-1 has committed “Deficiency in Service” U/S- 2(1) (g) of Consumer Protection Act-1986 as he has not handled the complain and claim of the Complainant properly and neglected him to harass him and is liable to pay compensation as per the order as follows:-

                                                            ORDER

Petition is allowed. The Opp. Parties No-2 & 3 are discharged from the liability as they have no role in the settlement of claim of under warranty. The O.P-1 is directed to replace the aforesaid defective Turbo Charger in the Car in this case. Further the O.P is directed to pay Rs 10,000/- (Rupees Ten Thousand) only as compensation, Rs.5,000/- (Rupees Five Thousand) only towards mental pain & agony and Rs.5,000/- (Rupees Five Thousand) only as the cost of litigation to the Complainant within 30 (Thirty) days of receiving of this order, failing which, the complainant is at liberty to proceed in due process of law.        

            Order pronounced in the open court today i.e, on 12^th day of October,2018 under my hand and seal of this Forum.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement   of the delivery thereof.

  I  agree,                                            I agree,

PRESIDENT.                                    MEMBER.                                         MEMBER.(W)

                                                Dictated and Corrected

                                                                By me

                                                         MEMBER.(W)