1. The brief history of the case of the complainant is that in order to earn his livelihood he purchased one LTP 1613 Truck of Tata make from OP.1 on 04.01.2016 vide Engine No.697TC69N0Y113734, Chassis No.MAT373352FZN19943 and Sale Certificate N.Einmtr-R-1516-00100-SC dt.04.01.2016 for Rs.15, 83,035/- with the financial assistance of IndusInd Bank Ltd., Jeypore and vehicle was registered as OD-10D-8464. The vehicle is leased out under an agreement to BPCL for transport of petrol and diesel. It is submitted that from the date of purchase the vehicle was having inherent problem in its Steering box which became acute since March, 2017 for which the complainant referred the vehicle to M/s. Kalinga Auto Syndicate, Jeypore which is the Authorised Service Centre of Ops 2 & 3 but the said ASC expressed its inability to rectify the Steering Box defects. It is further submitted that the complainant referred the vehicle to OP No.2 thrice but the Steering Box problem remained as same in spite of repairs but the OP.2 received a total sum of Rs.21, 000/- towards repair and replacement charges. The complainant submitted that he intimated the fact to Ops 2 & 3 vide email dt.24.06.2017 and handed over the vehicle to OP.2 for rectification of Steering Box problem in the month of June, 2017. The OP.2 assured to rectify the defect and further assured that if the defect is not rectified, the vehicle will be replaced with a new one. It is further submitted that the OP.2 intimated the complainant through his letter dt.03.08.2017 that the vehicle is ready for delivery on 22.07.2017 whereas during his several visits to OP.2 they had only opined that they are unable to diagnose the defect in the vehicle. The complainant again wrote to Ops 2 & 3 and registered complaint through customer care centre on 15.08.2017 and the Ops replied on 16.08.2017 stating that the vehicle is perfect. The complainant submitted that at this stage it is risky to transport petroleum products through that vehicle still the problem persists and due to non functional of the vehicle he is facing problems from different angles. Thus alleging defect in goods and deficiency in service on the part of the Ops, he filed this case praying the Forum to direct the Ops to pay the cost of the vehicle at Rs.15, 83,035/- along with Rs.4, 10,000/- towards compensation and cost to the complainant.
2. The OP No.1 though entered its appearance through A/R, neither filed counter nor participated in this case in any manner. The OP No.2 & 3 filed counter with preliminary objection stating that the complainant is not a consumer within the meaning of term “Consumer” as defined u/s.2 (1) (d) as the vehicle in question is being used for commercial purpose by leasing out to BPCL. Admitting the sale of vehicle bearing No.OD-10D-8464, the Ops contended that the vehicle has been given requisite service as and when brought to the service centre, however, it appears that the vehicle was brought to the service centre on 07.11.2017 after covering a distance of 1, 40,004 Kms within a period of eighteen and half months i.e. from 30.12.2015 to 11.07.2017. It is further contended that the vehicle was lying at the service centre of OP.2 since 06.07.2017 for delivery and the complainant was not taking back the vehicle for the reasons best known to him in spite of due intimation from time to time. It is also further contended that the OP.2 through a letter dt.05.09.2017 communicated to the complainant that the rectification of Steering Box was done and the same was tested by the driver of the workshop in presence of the complainant. The vehicle was also tested by another driver on 22.08.2017 and the same was found to be in order. The Ops also contended that there is no complaint concerning manufacturing defect in the said vehicle and the complainant has made false allegations against the Ops. With these and other contentions denying any fault on their part and denying any manufacturing defect in the vehicle, they prayed to dismiss the case of the complainant.
3. The complainant as well as Ops 2 & 3 has filed certain documents along with affidavits in support of their respective cases. Heard from the parties through their respective A/Rs and perused the materials available on record.
4. In this case purchase of LTP 1613 Truck of Tata Make vide Engine No.697TC69N0Y113734, Chassis No.MAT373352FZN19943 and Sale Certificate N.Einmtr-R-1516-00100-SC dt.04.01.2016 for Rs.15, 83,035/- from OP.1 by the complainant are all admitted facts. The vehicle was leased out to BPCL for transportation of petrol and diesel. The Ops 2 & 3 have raised preliminary objection through their counter stating that as the vehicle was using for commercial purpose, the complainant is not a consumer of the Ops as referred u/s.2 (1) (d) of C. P. Act. Before going to other merits of this case, we are inclined to decide the preliminary issue at the first instance. It is seen from the record that the vehicle was purchased on 04.01.2016. The complainant alleges that from the date of purchase, the vehicle was having inherent Steering Box problem and it became acute from 03/2017. It is also seen that the vehicle is under warranty for 4 years in respect of the vehicle. In a cantina of judgment, Hon’ble Commissions under C. P. Act have clearly held that even though the vehicle purchased was used for commercial purpose, if the defects arose in the said vehicle within warranty period, there should not be any bar for the purchaser of the vehicle to approach the Forums under C. P. Act with complaint of defects in vehicle against the manufacturer. In view of the above fact, we can safely hold that the complainant in this case is a consumer of the Ops and can approach this Forum for Redressal of his grievance. The preliminary issue is decided accordingly.
5. The case of the complainant is that he purchased the vehicle on 04.01.2016 and from the date of purchase he found some defects in the Steering Box of the vehicle and towards 03/2017; the Steering Box problems became acute. The complainant has referred his vehicle to M.s, Kalinga Auto Syndicate, Jeypore, an Authorised Service Centre (ASC) of Ops 2 & 3 but the ASC expressed its inability to rectify the Steering Box defects since attended many a times. It is seen from the service job sheet filed by the Ops 2 & 3 that besides scheduled service, the complainant has approached the said ASC on several dates for problems in Steering Box of the vehicle. The said ASC stated in his job sheets that the complaint is Steering Hard and Jam and they have carried out the repairs. Is spite of repairs the problems remained as it is.
6. It is seen that the complainant has sent email letter to CEO, Customer Assistance Care, Tata Motors, Mumbai on 24.06.2017 stating that the Steering Box problem persists since last 3 months and he has sent the vehicle thrice to Tata Motors Service Centre at Baramunda, Bhubaneswar to sort out the problem but they could not find the main problem. They have changed the King Pin etc. and taken Rs.21, 000/- on demand from the complainant but the problem still persists. As the Service centre did not take any interest to rectify the defect, the complainant requested the CEO for necessary instructions to their service centre. The vehicle has been handed over to OP.2 for rectification of Steering Box in the month of June, 2017. It is also seen from the job sheets that several repairs and change in components/parts have been undertaken by different ASCs during such period. The Ops on the other hand at para-16 of counter stated that “it appears that lastly the vehicle was brought to service centre as on 07.11.2017 after covering a distance of 1, 40,004 Kms from 30.12.2015 to 11.07.2017”. This averment OP the Ops in their counter is sarcastical on the face of record. However, the Ops have admitted in their letter dt.03.08.2017 addressed to the complainant that they have received the vehicle for repair on 13.06.2017.
7. The Ops 2 & 3 in their counter stated that necessary service to the vehicle has been extended as and when required but the complainant is making false allegations regarding Steering Box problem and in spite of repairs, the complainant is not taking back his vehicle. It is seen from the record that on 03.08.2017 the complainant has sent an email letter to the Ops 2 & 3 with reference to his email dt.24.06.2017. In that letter the complainant has intimated the Ops that since two and half months the vehicle is lying in their garage without rectifying the defects and requested the Ops to replace the vehicle with a new one. Since the vehicle is under finance, non running of the vehicle creates financial hardship to the complainant. The Ops on the same day i.e. 03.08.2017 wrote a letter to the complainant stating that the vehicle is ready for delivery from 22.07.2017. The Ops also reminded the complainant on 10.08.2017. From the above facts, we do not understand, if at all the vehicle was ready for delivery, why should not the Ops intimated the complainant regarding that matter soon after repair is over? After getting letter dt.03.08.2017 only from the complainant with regard to replacement of the vehicle the Ops woke up and pronounced that the vehicle is ready for delivery. This is unfair on the part of Ops 2 & 3 what we ascertained from the above instant actions of the Ops. No service job sheet from their ASC at Bhubaneswar or any certificate of competent authority is filed by the Ops in this case.
8. After receipt of letter from the Ops, the complainant has sent another email letter dt.15.08.2017 which is self explanatory in nature and reproduced below:
“With reference to your email on 02.08.2017 and Regd. Letter from Mr. Mavneet Sir on dt.10.08.2017 received by me. I am shocked after going through the letters I know that my vehicle which is in your workshop for repair since two months as my vehicle is under warranty period. I so surprise to read your email and letter wherein you have mentioned that my vehicle is ready since 22.07.2017 and asking me to receive the vehicle. As you are very much aware that I have visited your workshop since last two months. But regarding as per your letter let me clarify you. I have visited your workshop on 30.07.2017 with my two drivers and my vehicle was st5ill not rectified. But very next moment, I have visited your Head Office, Bhubaneswar in the afternoon, I met with Mr. Ankur Sharma and discussed about the matter. He assured me to look into the matter and asked me to give him one day time and I meet him the next day i.e. 21st July, 2017 evening. As per his promise I visited him and he was not present in his office. When I contacted him in his mobile number, he again assured me that I had been to Berhampur for my official work and assured me that he will look to rectify within few days. On 25.07.2017 my two drivers visited your workshop. There was a test ride done in present of your experts and staff at around 11.30 a.m. The test ride done in presence of your experts and my drivers till 27.07.2017. Mr. Debasis and Mr. Navneet is very much aware of this matter. As the problem was not rectified then we had a discussion with you and your TSS head Mr. Navneet and one gentleman from your Company at his chamber. After discussion you three persons assured me to look into the matter and you told me to take my vehicle to TATA Sale Ok and talk to M/s. L. N. Motors and they assured to replace a new vehicle shortly. But let me clarify that what is the meaning of TATA Sale Ok till now and do not want to know that. Then on 28.07.2017 morning, there was a call from your office that my vehicle has taken to Cuttack to a private workshop to rectify the problems. Again on 29.07.2017, my driver and your staff went for a test drive but still it is not rectified. You are trying to get away with the problems saying me that there is a slight problem and it will remain forever.........”.
9. From the above facts it was ascertained that the Ops without finding the fault and without rectifying the problem are only pressing hard to take delivery of the vehicle by the complainant. The complainant has intimated the Ops that he has employed many drivers of Koraput district to ply his vehicle but due to steering box problem they are not willing to ply the vehicle. According to the complainant the Steering Box problem in his vehicle is viral news in the Koraput district for which the competent drivers are not agreed to ply the vehicle in question. As we feel, the complainant is serious about the steering box problem in the vehicle as nobody is willing to ply his vehicle apprehending unsafe but the Ops do not feel the seriousness of the complainant in this matter. The complainant has invested such a huge amount for purchase of the vehicle by availing loan and hence he cannot stop his earning by keeping the vehicle with the Ops garage for such a longer period. Steering Box problem is a strong reason behind the entire episode for which the complainant as well as different driver is not interested to ply the vehicle with highly inflammable objects. The Ops must understand the gravity of the situation.
10. During pendency of this case, the Ld. A/R for the complainant on 04.06.2018 filed a petition u/s.13 (1) (c) CPA stating that the vehicle is still having Steering Box problem and Gear Box problem and it is quite risky to ply the vehicle on the road as the steering is not coming back to normal position after it being used to left or right. Hence he prudently prayed the Forum to refer the matter to an expert to examine the vehicle which is lying with OP No.2. Thereafter, he supplied the address of RTO, Bhubaneswar-II and prayed the Forum to direct the said authority to examine the vehicle. The Forum in its order dt.12.12.2018 appointed the RTO, BBSR-II as Commission who on 10.01.2019 inspected the vehicle with test driving and opined that the Steering System of the vehicle is in order and the Clutch System, Gear Box System needs repair. From the above facts it became clear that the vehicle was not repaired by the Ops till inspection of the vehicle by the RTO. On getting email letter dt.03.08.2017, the Ops hurriedly intimated the complainant that the vehicle was ready from 22.07.2017 for safe delivery which is a gross unfair trade practice on the part of the Ops.
11. The expert opined that the Steering system is in order after driving the vehicle for only 23 Kms besides other defects in the vehicle. The complainant has filed affidavit dt.28.08.2017 of one K. A. Acchen, who is the driver of the said vehicle. In his affidavit he stated that the Tanker had Steering Box problem which is a great threat for a fatal accident for driver, general public and to the petroleum product. He had taken the vehicle to M/s. Kalinga Auto Syndicate, Jeypore who could not rectify the problem and thereafter he left the vehicle with OP.2 as per direction of the owner. Being called upon by the owner of the vehicle, he had been to the service centre of OP.2 for test drive but found the Steering Box problem was as it was.
12. It is a settled principle of law that the expert opinion cannot be ignored and it has considerable evidential value, unless it is discredited by producing evidence to the contrary. The entire discussions supra, email dt.15.08.2017 and affidavit of driver Mr. Achhen show that the Steering Box problem still persists even though it was attempted to repair as claimed by the Ops 2 & 3. The driver of the vehicle is also an expert in that line. So the expert report is not a last and final word. It is not that sacrosanct that it cannot be departed from. Further the report is not binding upon both the parties. In view of the facts and circumstances of the case and the evidence adduced before us, the expert opinion has been discredited in this case. Thus we clearly found manufacturing defect in the vehicle since in spite of repairs it could not be brought in to order. We also find deficiency in service on the part of the Ops as discussed supra. As it is held that the vehicle had inherent manufacturing defect, the complainant is entitled to get refund of the cost of the vehicle with interest in lieu of the defective vehicle. However, the vehicle is with OP No.2 service centre. Further due to above facts, the complainant must have suffered some mental agony and physical harassments and due to such inaction of the Ops, the complainant has come up with this case incurring some expenditure for which he is entitled for some compensation and costs. Considering the sufferings, we feel a sum of Rs.40, 000/- towards compensation besides Rs.10, 000/- towards cost of litigation in favour of the complainant will meet the ends of justice.
13. Hence ordered that the complaint petition is allowed in part and the OP Nos.1, 2 & 3 being jointly and severally liable are directed to refund Rs.15, 83,035/- towards cost of the vehicle with interest @ 9% p.a. in lieu of the vehicle in question from the date of filing of this case i.e. 28.08.2017 (vehicle is with OP.2) and to pay Rs.40, 000/- towards compensation besides Rs.10, 000/- towards cost of litigation to the complainant within 30 days from the date of communication of this order.
(to dict.)
