Orissa

Jajapur

CC/84/2021

Sri Upendra Parida - Complainant(s)

Versus

Vikranta Motors,chandikhole. - Opp.Party(s)

Pratap Kumar Ray

31 Mar 2023

ORDER

                                                          J U D G M E N T.

Mrs.  SUSMITA MISHRA, PRESIDENT  :-

          The Complainant namely Upendra Parida has filed this consumer complaint bearing No. 84/2021, U/s 35 of the C.P. Act, 2019, alleging deficiency in service & unfair trade practice on the part of the O.Ps for manufacturing defects of the “Tractor with Trolley” which caused started destroying the tyres of the vehicle, seeking the following relief :

“ directing the O.Ps to pay compensation of Rs.1,00,000/- (Rupees one lakh) and change the Tractor”.

Brief facts of the case :-

1)              The brief facts of the case as per the complaint petition is that the complainant, an unemployed youth, for his livelihood, purchased a “Tractor with Trolley”, model No- Mahendra 475 DI MDLX brand name as Bhumiputra bearing Regd. No. OD-34-M-8124, Engine No. RLH 2K BA 3200 & Chasis No. MBNABAJAKLRH 07983 from O.P. No.1. It is also stated by the complainant is that O.P. No.2 is the Manufacturer of the aforesaid vehicle & O.P. No.2 is marketing its product through O.P. No.3 for the State of Odisha.The tractor was covered under the warranty policy period upto 9.50 hours for the primary warranty or upto 2000 hours only for add-on-warranty.Tractor developed defect during warranty period.  It is also stated by the complainant is that the above vehicle in question due to the manufacturing defects of the tractor & it started destroying the tyres.  It is also stated that the complainant has issued a legal notice to the O.P. No.4 & O.P. No.1 but no possible response from their sides.  As a result, the complainant is constrained to file this case before the Hon’ble Consumer Court, as the act of O.Ps amount to deficiency in service & illegal trade practice.

2)           Notice of complaint petition was issued to all the O.P. No.1 to 4.  Advocate for O.P. No.2 & 3 had appeared with Vakalatnama on dtd. 16.09.2021. Whereas, none was present on behalf of the O.P. No.1 & 4 when the matter was listed for hearing on 2022.  Hence, they were proceeded ex-parte.

3)   The complainant was contested by the O.P. No.2 & 3 through their advocates, who were filed joint written reply as taking preliminary objections that the complaint is not maintainable, itself be decided as a preliminary issue before going into merits of the case.  In reply, the O.P. No.2 & 3 are neither necessary nor proper parties to the complaint as there were no privity of contact between the complainant & the answering O.Ps.  Therefore, the complainant is not the consumer, the complaint is false, fictitious & baseless and is a malafide attempt on the part of the complaint for unlawful & unjust enrichment, therefore, liable to be dismissed with heavy cost.  It is further stated by the O.P. No.2 & 3 that, in case of manufacturing defects on the vehicles caused allegation about tyre is covered under warranty.  It is submitted by the O.P. No.2 & 3 that the alleged tyres are manufactured by the “Good Year India Limited” and governed in accordance with Good Year India Ltd., Warranty Policy.  It is further submitted by the O.P. No.2 & 3, in case of complaint, Mahindra Dealer will take up the matter with their respective manufacturer or their authorized agents, on which the final decision will be their & binding to all.

4)   In support of his allegations, the complainant tendered in evidence as Annexure-I : Copy of Legal Notice vide Ref. No. 177/dated 15.07.2019; Annexure-II : Two Postal Receipt dt:16.07.2021, Annexure-III : Acknowledgment Receipt to Authorized Officer, The Odisha Agro Industries Corporation Ltd/. dt.19.07.2021 Annexure-IV :  Regd. Certificate Particulars from RTO, Jajpur/Regd. No. OD-34M-8124/dt. 15.12.2020; Annexure-V : Certificate of Registration (Non-Transport Agricultural Tractor/dt.15.12.2020); Annexure-VI : Invoice of Vikrant Motors/dt.02.12.2020; Annexure-VII : Original Challan from the Odisha Agro Insustries Corporation Ltd. vide Book No. OA 7464/ dt 03.12.2020; Annexure-VII :  Tax Invoice of     Rs. 6,32,943/- dt.03.12.2020; Annexure-IX : Money Receipt vide No. 661773/             dt. 03.12.2020 from the Odisha Agro Industries Corporation Ltd.; Annexure-X :  Customer’s Details & Warranty details from Vikrant Motors/dt. 02.12.2020 and closed the evidence.

On the other hand, O.P. No.2 & 3 tendered in evidence copies of claim Inspection Report from Good year India Ltd/vide Complaint No. E1503210250 dt. 15.03.2021 at Vikrant Motors (Pages 7 to 9) and closed the evidence.

 

5)         We have heard learned counsel for the complainant & learned counsels on behalf of the O.P. No.2 & 3, after going through the averments made in the complaint, joint counter affidavit filed by the O.P. No. 2 & 3, written arguments & documents brought on record, whereas O.P. No.1 & 4 has proceeded ex-parte.

 

6)      On perusal of the complaint, version of the contesting O.P. No.2 & 3 and documents filed by the parties, the following issues are framed :

1. Whether the complainant is a “consumer”under the C.P. Act, 2019 ?
2. Whether the O.P. No.2 & 3 are necessary party or proper parties ?
3. Whether this complaint is maintainable or not against the privity of contract between the complainant and the O.Ps ?
4. Whether there is manufacturing defects in the tyres of the tractor within the warranty policy or not ?
5. Whether the O.Ps are liable for deficiency in service & whether the complainant is entitled to any relief ?

Issue No. 1 :-

              It is clear that the complainant had purchased a Non-Transport Agricultural Tractor with Trolley bearing Regd. No.OD-34-M-8124, from O.P. No.1 ‘Vikrant Motors’ through O.P. No.4 namely ‘The Odisha Agro Industries Corporation Ltd., Satya Nagar, Bhubaneswar, for the purpose of protecting and securing his livelihood.  Thus, the complainant will fall within the definition of ‘Consumer’ under section 2 (7) of the C.P. Act, 2019.

              On the other hand, it is admitted by the O.P. No.2 & 3 that, the said vehicle is manufactured by the O.P. No.2 and it is purchased by the O.P. No.1 to release the same to its own customers.  In the instant case, the O.P. No.1 is the ‘Dealer’ of the vehicle, O.P. No.2 & 3 are the “manufacturer” or product manufacturer/serviced by product service provider/Sold by product seller respectively of the tractor and the O.P. No.4 is the promoter/mediator of the vehicle to purchase the said vehicle.  Here, all the O.Ps are the “service provider” to the complainant uder section 2(24)/under section 84 of CP Act 2019. Hence, the issue is answered in favour of the complainant.

Issue No. 2 :-

              Complainant claims to be a unemployed youngman and he had purchased the Tractor with Trolley for his livelihood bearing Regd. No. OD-34-M-8124, Engine No. RLH 2K BA 3200 & Chasis No. MBNABAJAKLRH 07983 from O.P. No.1 namely ‘Vikrant Motors’ a dealer at Chandikhole, Jajpur, now re-named as “Spidmas Industry Pvt. Ltd., through the promoter ‘The Odisha Agro Industries Corporation Ltd., Bhubaneswar.  It is admitted by the complainant that the above said vehicle was purchased on 02.12.2020 (Annexure-VI,VII,VIII,,IX & X). It is also admitted by the complainant is that O.P. No.2 is the manufacturer of the aforesaid vehicle and the O.P. No.2 is the marketing its product through O.P. No.3 for the State of Odisha.

              On the other hand, it is admitted by the O.P. No.2 & 3, that the above said vehicle was manufactured by the O.P. No.2 and it is purchased by the O.P. No.1 to release the same to its own customers.

              From the above facts and circumstances, the O.P. No.2 & 3  are the manufacturer company.  As a result, manufacturer are the necessary party/parties or proper parties, where the complainant had alleged the deficiency in service against the selling dealer, the servicing dealer and the manufacturer/Product service provider etc. of the vehicle.

   

 

 

    Accordingly, the answered of this  issue is against the O.Ps.

Issue No. 3 :-

              The O.P. No.2 & 3 filed a reply against the complainant and the complainant was resisted by them in Para-2, on the ground that;-

“ the answering espondents are neither necessary nor proper parties to the complainant as there were no privity of contract between the complainant and the answering respondents.”

              Under the general principle of the law of contract, such users of goods are not entitled to sue the supplier or trader of the such goods on the ground of ‘privity of contract’.  The “rule of ‘privity of contract” provides that only parties to the contract can sue and not a stranger.  Thus, a third person who is not a party to the contract cannot sue.  But now under the Consumer Protection Act, 2019, a complaint may be made by any user of goods even though he is not a party to the contract for purchase of those goods.

              On the issue of this point, it is relevant to note that this issue has been settled by the Hon’ble National Commission, New Delhi (Page-71, Consumer Protection Reporter) as follows :    

“Privity of contract: Absence of privity of contract is not a bar for maintaining a complaint against a service provider”.

              We would like to rely upon another recent judgment of the Hon’ble National Commission, New Delhi, in case of  M/s AIPL MBUJA Housing & Urban Infrastructure Ltd. Vrs. Paramjit Kaur Tiwana & Ors, 2023 (I) CPR 133 (N.C.) as follows :

“Absence of Privity of Contract- It cannot be construed by any stretch of imagination that the project was not a joint venture/partnership and as such both the Opposite Parties cannot be absolved from their liabilities to compensate the complainant on the lame excuse of absence of privity of contract with the complainant.”

              Accordingly, the issue is against the O.Ps.

Issue No. 4 :-

              It is argued by the learned counsel for the complainant is that due to manufacturing defect of the tractor it started destroying the tyres for which the complainant raised the matter to O.P. No.1  but in vain.  It is also submitted by the counsel for the complainant is that one legal notice was issued to the address of the O.P. No.1 & 4 but the O.Ps not responded of the said notice.  It is also submitted by the complainant is that due to defects of the tractor, the vehicle had become unable to ply on the road caused monetary loss and mental agony to the complainant, which amounts to deficiency in service as well as unfair trade practice by the O.Ps.

             

              On the other hand, the learned counsel for the O.P. No.2 & 3 submitted that tyres are proprietary items and on the proprietary aggregates, are covered up the respective manufacturer’s warranty policy.  It is also admitted by the O.P. No.2 & 3 that if any complaint arised, Mahindra Dealer will take up the matter with respective manufacturer or their authorized agents on which the final decision will be theirs and binding to all.  It is further admitted by the O.P. No.2 & 3 that the complainant having warranty manual of vehicle with him, therefore, he could have made a party to the manufacturing company of Tyres i.e. Good Year India Ltd.[Xerox copy of Good Year India Ltd, pages 7 to 9 – claim inspection report dt: 15.03.2021 submitted by the O.P’s no; 2 & 3]. 

The above claim inspection report is not a physical verification of tyre,in which it is seen that the tyre of the tractor are covered near about 370 hours only.

              When the complainant is not alleging about a particular thing but the O.Ps have narrated a separate story in their written version stating therein that the defect occurred due to defect of Tyre but not due to defect of Tractor.

              In absence of any expert’s opinion regarding the said defect how this Commission will ascertain that the O.Ps version is true.

              In this connection we are of the opinion that the O.Ps are solely responsible for the allegations made by the complainant.

              Accordingly, the issue No: 04 is answered

Issue No. 5 :-

              As per the record and documents, the O.P No: 01
(Vikrant Motors) now renamed as “ Spid Mas Industry Pvt Ltd, is the dealer, O.P No: 02 i.e. (Mahindra & Mahindra Ltd) is manufacture of the tractor along with marketing agency I.e. (O.P No:03). The complainant had purchase Tractor with  Trolley through O.P No: 04 (The Odisha Agro Industries Corp. Ltd. by pay Rs. 6,32,943/- ( Rupees Six Lakh thirty two thousand Nine Hundred forty three) only vide money receipt NO: 661773/ dt: 03.12.2020. All the O.Ps No: 01 to 04 were Dealer, Manufacture & service provider to the Complainant respectively. Due to manufacturing defects in the above vehicle(tractor) was not removed or rectified after received the legal notice vide reference No.177 /dtd15.07.2021 and therefore the compliant has to face hardships, harassed and mental agony. Which amounts to gross negligence,deficiency in sevice and unfair trade practice[Annexure-I pages 1- 2, Annexure-II, Annexure-III submitted by the complainant].

 From Supra discussion, conclusion is drawn that, O.P No:01 to 04 were jointly and severally liable for negligence,deficiency in service and unfair trade practice the relive can be claim by way of Compensation for the harm caused to a consumer by a defective product or deficiency in service relating there to on the provision of Chapter 6 of C.P Act 2019..

              As the opposite parties were deficient in their service to the complainant, accordingly the complainant is entitled for relief.    

Hence, the order.

                                                O R D E R.

           In the light of the above facts and circumstances, the complaint petition is hereby partly allowed. Hence O.P. No.2 & 3 are hereby jointly and severally directed to remove and to repair the manufacturing defect of the Vehicle Tractor-Trolley purchased by the complainant with free of charges and fresh warranty period to be issued after the defect removed.Whereas , O.P. No.1 & 4 also jointly and severally directed to pay compensation of Rs.30,000/-(Rupees thirty thousand) only towards mental, physical & financial harassment undergone by the complainant and to pay Rs.5,000/- (Rupees Five thousand) only as cost of this litigation to the complainant, within a period of one month from the date of receipt of this order, failing which the O.Ps shall be liable for execution proceeding under the C.P. Act, 2019.

Issue extract of the order to the parties for compliance.

Order Pronounced in the Open Commission on this the 31^st day of March 2023.