BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR
C.C NO-53/2014
Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy, Member (W).
Md. Aslam, aged about 55 years,
S/O-Basir Ahmed,
R/O-Near VSS Stadium, P.O/P.s-Dhanupali,
Dist-Sambalpur. …..Complainant
Vrs.
- VIJAY EICHER,
VE Commercial Vehicles Ltd,
N.H-6 Near Madanabati School,
- VE Commercial Vehicles Ltd,
102,Industrial Area Pithampur,
-
- The Branch Manager,
UCo Bank,Budharaja Branch, Sambalpur.……….O.Ps.
Counsels:-
- For the Complainant:- Sri Sachikanta Mishra, Advocate & Associates.
- For the O.P-1 :- None.
- For the O.P- 2 :- Sri K.C.Jena, Advocate & Associates.
- For the O.P-3 :- Sri S.K.Panda, Advocate & Associates.
DATE OF HEARING : 08.03.2021, DATE OF ORDER : 12.04.2021
PAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that the Complainant being motivated by the sales staff of the O.P-1, the Complainant has opted to purchase a truck through finance by the O.P-3 vide engine No- E683CDBA503804 and Chassis No- MC243KRFOBA00826 . The Truck was got registered through the RTO, Sambalpur vide Regd. No- OR-15-R-1286. At the time of agreement the Complainant was not supplied of Agreement Copy of Hire Purchase for which he could not able to ascertain the conditions of agreement. After some months of purchase the Truck gave rise to problems like leakage of engine oil and mileage which was rectified by the service centre of the O.P-1 but the same was observed again within a short time and the complainant had visited to the service centre several times in a year. The Complainant has carried out required servicing as per the Company norms. The O.P-1 has not carried the services as mentioned in the service book and took advantage of the fact that he was not properly educated. The Complainant moves throughout the India to deliver goods and every time he visits the service station and reports the engine and mileage problems. The O.P-1 & 2 changed the fuel pump of the vehicle but the problems existed. The O.P-1 was asked to replace the engine under warranty as the presumption of manufacturing defect but the dealer refused to the same. It is the obligation of the Company (O.P-1 & 2) to repair or replace the defective parts free of cost during warranty period. The Complainant has submitted some cheques to the O.P-3 against the instalments but the O.P-3 presents the cheques with huge amounts for realisation. Again the O.p-3 is not supplying account statements to the Complainant and not receiving the EMIs rather trying to seize the vehicle. The earning of the Complainant will be hampered it the O.P-3 will seize the vehicle as the Complainant extracts the income and maintain his family from this truck.
As per the O.P-2 he has 50:50 joint ventures with the Volvo Group and primarily deals with the manufacturing of buses and trucks across all segments using top line manufacturing process. The Complainant has availed all free services from the O.P-1. He has availed first free service at 3000kms at M/S Apex Automobiles but failed to avail rest of the free services provided for next 50,000 kms hence the problem. The complainant though reported many defects to the O.P-1 for four times but he has never complained of engine problem but had a complaint regarding poor pick up. The replacement of fuel pump carried out after 99845 kms run. Thereafter he complained of poor mileage after running of 120000 kms and clutch disc was replace after another 30,000 kms run when the kilometre reading was 1,65,215. The O.P-2 denied the allegation of inherent manufacturing problems as the Complainant has neither provided any cogent evidence to prove his case nor submitted any expert opinion report on the same.
The O.P-3 has provided the loan details to the Complainant but replies that there is no provision for supplying copy of Hire-Purchase agreement to the Complainant. Again he added that the Complainant has made several approaches for finance of a heavy goods vehicle and after having a thorough understanding about the terms & conditions rate of interest, repayment of loan etc. the Complainant became agree to make the purchase. Again the O.P-3 has filed a case U/s-138 NI act before the SDJM Sambalpur and it is within the knowledge of the Complainant and to save his skin he has filed a case before this Forum to avoid the payment of outstanding dues. As per the O.P-3 this commission lacks the jurisdiction to pass any order against the O.P-3 towards recovery of loan from the Complainant including the prayer not to seize the vehicle during the pendency of this case.
The O.P-1 despite of service of notice he did not bother to appear before this Commission thus challenging the allegations made by the Complainant. So taking it in to consideration as “IT IS A YEAR OLD CASE”, this Commission has rightly decided to dispose the case as well setting the O.P-1 as ex-parte. Hence hearing conducted exparte under Rule-6 of Order-9 of Civil Procedure Code. Considering the case on the Complaint petition, written statements filed by the O.P-2 & 3 in this case.
POINTS OF DETERMINATION:-
- Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
- Whether O.Ps has committed any Unfair Trade Practice as well as Restrictive Trade Practice to the Complainant?
From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has purchase a Truck from the O.P-1 & 2 financed from the O.P-3. Though the Complainant has complained of leakage of engine oil and mileage problem in the truck which was rectified by the service centre of the O.P-1 but not permanently. The O.P-1 & 2 changed the fuel pump of the vehicle but the problems existed. The Complainant requested the O.P-1 & 2 to replace the engine within the warranty period as it presumed to be a manufacturing defect but te O.P-1 & 2 did not turned up. The Complainant has not submitted any job card or any other evidence to support his claim. However as the Truck was in warranty period and the warranty condition relied upon by the O.P-1 & 2 did not warrant interpretation that only the defective part was to be replaced and not the Vehicle itself. It was held that the booklet containing warranty clearly indicates promise of service and replacement with certain conditions. The complainant could not prove by means of automobile expert engineer that the tractor suffered inherent manufacturing defects of the Truck. We find that certain inadequacies existed in Truck, which cannot be said to be manufacturing defect therein. Consequently, OP-1 & 2 are bound to replace the defective parts of the Truck being within warranty, as held by Apex Court in “” and another, 2006(2)CLT-150, when the warranty conditions clearly referred to the replacement of defective parts, hence only defective parts of the vehicle should be ordered to be replaced with new ones and not the entire vehicle. Further he claims that the O.P-1 has considering the allegation made by the Complainant that the O.P-3 took the signature of the complainant, it is observed that the Complainant on dtd. 06.06.2011 submitted a singed acknowledgement to the O.P-3, that he understood the contents in English in the loan agreement documents and after full satisfaction put his signature in regional language in presence of witnesses. Also from the bank statement of the O.P-3 it is ascertain that the Complainant was not paying the EMI regularly because the seizure information letter issued by the O.P-3 on dtd. 11.02.2015 there was an outstanding of Rs.8,80,219 as on the above date. Hence the seizure was genuine as per the agreement Para-5. But the present payment/ account status of the Complainant and the where about of the seized Truck is not available with this Commission. Hence we order as under :-
ORDER
The Complainant petition is partly allowed. The O.P-3 is directed to settle the claim with the Complainant and release the seized truck in favour of the Complainant. It is ordered that the Complainant after getting the Truck released from the O.P-3, shall produce the same in the service station of OP-1 & 2 whereupon OP-1 & 2 shall replace the defective parts of the defective Truck and make it roadworthy to the entire satisfaction of the Complainant within a period of 15 days there from. We further order the O.P-1, 2 & 3 to intimate the developments to this same to this Commission within 30 days of receiving this order failing which the Commission will pass appropriate orders according to the prevailing circumstances.
Order pronounced in the open Court today i.e, on 120th day of April 2021 under my hand and seal of this Commission.
Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.
I agree,
-Sd/- -Sd/-
MEMBER(W) PRESIDENT
Dictated and Corrected
by me.
-Sd/-
PRESIDENT
