State Consumer Disputes Redressal Commission
Nrusingh Charan Dash vs Managing Partner, Biji Automobiles And ... on 23 October, 2006
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK C.D. APPEAL NO.212 OF 2004 From an order dated 13.06.2003 passed by the District Consumer Disputes Redressal Forum, Ganjam in C.D. Case No.360 of 2000 Nrusingh Charan Dash, S/o. Laxmikanta Dash, At- Ramagiri, P.O- Sheragada, Dist- Ganjam. Appellant -Versus- 1. Managing Partner, Biji Automobiles, Aska Road, Near ICE Factory, At/P.O- Berhampur, Dist- Ganjam, At present Gandhinagar, 4th Lane (East), Berhampur, Dist- Ganjam. 2. Regional Sales Manager, Scooter India Limited, 23/N/Block-B, New-Alipore, Calcutta-70053, West Bengal. Respondents For the Appellant : M/s. L. Samantaray & Assoc. For the Respondent no.1: M/s. M. Mishra & Assoc. For the Respondent no.2: M/s. Somanath Ray & Assoc. PRESENT : THE HONBLE SMT. BASANTI DEVI, MEMBER A N D SHRI SUBASH MAHTAB, MEMBER. O R D E R
DATE:- 23TH OCTOBER, 2006.
The complainant in C.D. Case No.360 of 2000 has filed this appeal challenging the orders dated 13.06.2003 of dismissal of the C.D. Case by the District Forum, Berhampur.
2. The appellant has filed the C.D. case with a prayer to direct the opposite parties No.1 and 2, the Managing Partner Biji Automobiles at Aska road, At/P.O- Berhampur, Dist- Ganjam and Sri V.K. Mathur, Regional Sales Manager, Scooter India Ltd., 23/N/Block-B, New Alipore Calcutta-700053 respectively, to replace the required genuine parts of the Auto-Rickshoaw-Vikram-410, to pay interest accrued upon the loan taken by him, to the financing Bank and to pay him rupees 50,000/- towards loss sustained by him and litigation expenses.
3. The brief facts of the case of the complainant are that in view of the P.M.R.Y. scheme of the Government, being an unemployed youth complainant / appellant obtained loan from the Andhra Bank and purchased Diesel Auto-Rickshaw-Vikram 410, Engine No.F.A. 42220 and Chasis No.001459. He purchased the Auto Rickshaw, in short, the auto, from opposite party No.2 through his authorized dealer opposite party No.1, on 01.11.1999. The opposite party No.1 had delivered him all the papers, documents and guarantee card, guaranting to repair manufacturing defect and defective materials except rubber components, bulbs, windshield glass and proprietary parts like battery, tyres etc. while delivering the Auto for a period of six months from 01.11.1999 to 01.05.2000. The Auto was registered vide No.OR-07-D-7895. Complainant experienced trouble relating to the mechanical defect of the Auto in the month of March, 2000 and the Auto became immobile. So, he took the Auto to opposite party No.1 for repair. The opposite party No.1 advised him to come after one month as no spare parts were available with him. Though he went to opposite party No.1 after one month and several times thereafter, he willfully neglected and did not repair the Auto and rather harassed him. Therefore, he sent notice to both parties. On 01.08.2000, opposite party No.1 wrote a letter to the financier Bank that the Auto is off road since about 5 months. Due to the negligence of the opposite parties, he could not run the vehicle and sustained heavy loss of rupees 50,000/- and he could not maintain himself and his family members being the only earning member of the family. Also, he could not pay monthly instalment towards the Bank loan. He sent notice to the opposite parties through advocate calling upon to replace required part of the Auto and to compensate the loss incurred by him. As opposite parties remained silent even after receipt of the notice, he filed the C.D. case for reliefs mentioned above.
4. The opposite parties have filed a joint written version and have contested the claim. Their stand in brief is that the complainant has not produced any documents such as receipts, guarantee book etc. to show that he has purchased the Auto bearing Registration No.OR-07-D-7895 and his allegation that the Auto suffered from manufacturing defects are falsehood. It is also falsehood, according to them that the Auto became off-road since March, 2000 and in spite of his several approach to opposite party No.1, opposite party No.1 did not replace the defective part and made him to run to him several time. They say that complainant has concocted a story to grab money from them. According to them, no parts of the vehicle are defective. The complainant has not disclosed as to which part is defective. They are only responsible to exchange or repair the parts mentioned In the same warranty card in its Page No.10 as per which consequential loss and damage are expressly excluded. Had complainant ever approached opposite party No.1 for exchange / repair of defective parts of the Auto, the opposite parties would have intimated to their higher authority for modification for future purpose in case manufacturing defects were noticed in any such part or parts. The complainant has alleged falsely that the Auto was off-road from March, 2000 and could not earn for his livelihood and cold not pay instalment amount to the financing Bank as he has not stated about the present condition relating to the Auto or whether it has been handed over to the Hypothecating Bank. The Bank accounts of the complainant relating to hypothecation of the Auto reflects clearly that the Auto was roadworthy all the time and he has deposited monthly instalments in the month of November, 1999, and for the months from February, 2000 to June, 2000. In this end of the view, the opposite parties say that the complainant is not a consumer and he has sustained no loss due to deficiency in service by them. Accordingly, they had claimed for the dismissal of the C.D. case.
5. We have heard the learned counsels appearing from both sides and perused the pleadings of the parties and documents filed on their behalf.
6. Going through the aforesaid orders dated 13.06.2003, we find that the District Forum has dismissed the C.D. case on the ground that the complainant is not a Consumer and the case is not maintainable. The reason behind District Forums such finding is that, the complainant has not filed a scrap of paper except a copy of quotation and sale certificate from opposite party No.1 to show that he is the owner of the Auto bearing Registration No.OR-07D-7895. Moreover though this registration number has been mentioned in the complaint and in the advocates notice, of course not signed by the advocate, yet the letter of opposite party No.1 addressed to the financing Bank on 01.08.2000 stating the Auto was off-road since 5 months speak Autos Regd. No.2896. That no papers are produced to prove that the Auto was purchased taking loan from the Bank under P.M.R.Y. scheme and as to whether the Auto was purchased for self employment or for commercial purpose. He has failed to prove hypothecation of the Auto to the financing Bank for the purpose of Bank loan. At the same time, the financing Bank which is the present owner of the Auto has not been made a party. No guaranty card has been produced and photocopies filed shown as guaranty card does not bear signature of the person concerned, for which that cannot be accepted. Moreover, what part was suffering from manufacturing defect and the date on which manufacturing defect in the Auto was noticed and Auto was taken to the opposite party No.1 has not been disclosed by the complainant. In view of this, the District Forum found no merit in the C.D. case. Hence it dismissed the case.
7. Being aggrieved against this orders of the District Forum, the complainant filed this appeal against both the opposite parties.
8. The complainant / appellant had filed the C.D. case for above mentioned relief as a Consumer alleging deficiency in service by the opposite parties / respondents. As the District Forum has totally disbelieved the case and allegation of the complainant as well as held the complainant is not a Consumer under the appellants, the following points emerge for our consideration ;
(a) whether the appellant is a Consumer under the respondents ?
(b) whether respondents have caused deficiency in service ?
and
(c) how far the District Forum is justified in dismissing the complaint ?
9. Coming into the aforesaid point (a), it may be stated that the respondents does not dispute with the complainant that respondent No.2 V.K. Mathur is the Regional Sales Manager, Scooter India Limited, which manufacturers and sales Diesel Auto-Rickshaw-Vikram 410 and respondent No.1 is the authorized agent. Respondents do not dispute that they have sold for price Diesel Auto-Rickshaw-Vikram 410 to the complainant on 01.11.1999. They simply deny to have sold such an Auto bearing registration No.OR-07D-7895. An Auto can be identifiable as per its chasis and engine number. The respondents do not dispute to have sold him an Auto bearing Engine No.F.A.42220 and chasis No.001459. Though in the Satisfaction letter dated 01.11.1999 (xerox copy filed) the appellant has stated to have received the Vikram Three Wheeler Diesel 410 Auto-Rickshaw with all accessories and proper documents through opposite party No.1, thus is not challenged by the opposite parties / respondent. Complainant has also filed the xerox copy of sale certificate dated 01.11.1999 issued and signed by opposite party No.1 in his favour where the aforesaid Engine and Chasis number of the Auto were written. This is also not disputed by the respondents. From certain other letters of respondent No.2 which will be dealt later on would show that the respondents have sold Vikram Three Wheeler Diesel 410 Auto-Rickshaw to the complainant. Thus there cannot be any doubt that the respondents have sold away an Auto of above description to the complainant on 01.01.1999. Therefore, complainant / appellant is a Consumer under the opposite parties / respondents. Confusion in respect to identity of this Auto arose as because the Registration number of the Auto (OR-07/D-7895) mentioned in the complaint and the copy of the notice of the complainant sent through his advocate differs from the aforesaid letter (xerox copy) dated 01.08.2000 written by appellant No.1 to Branch Manager, Andhra Bank, Seragada where the registered number is mentioned as No.OR-07/D-7896. Registration number is only obtained, when the vehicle is registered by the Registering Officer under whose jurisdiction it is registered after purchase. Neither party of the case have explained about this ambiguity, most probably, as the Auto in question is properly identifiable from its engine and chasis number. No where respondents denied to have sold away the Auto bearing aforesaid engine and chasis number.
10. Then coming to the aforesaid point (b), we find no ambiguity when appellant says that due to defects in the Auto, since March, 2000, it was taken to respondent No.1 for necessary repair. There, respondent No.1 advised him to come after one month as no spare parts have been supplied to him by respondent No.2 or the manufacturer to replace the affected part. Thereafter even though he ran to him several time, nothing was done and the Auto was off-road. This finds ample corroboration from the letter dated 01.08.2000 of respondent No.1 (through whom complainant has purchased the Auto) addressed to Bank Manager, Andhra Bank, Seragada. In this letter, respondent No.1 has intimated to said Bank that as the Scooter India Limited has not supplied him required spare parts, he was totally unable to provide spare part to the Auto of the complainant to whom the Bank has financed to purchase Vikram 410 Auto Rickshaw. At the same time, he has also intimated to the Bank that complainants Auto is not running in the road near about 5 months. This means the Auto is not running in the road since March, 2000. Vide letter dated 06.07.2002 (xerox copy) Sri R.K. Sen, the Regional Sales Manager of Scooter India Limited East Region has intimated the appellant after receipt of appellants letter in June, 2002 that they have extended necessary service and spare parts for maintenance of his Vikram Vehicle, even though appellant has not mentioned about the specific spare parts needed. He has also intimated vide said letter that necessary service and spare parts were earlier available with opposite party No.1 whereas this is available now with their new dealer M/s. Kamakhi Automobiles, Subhabati Complex, Gopali Street, Gate Bazar, Berhampur-760001 promising to supply any particular item / part if not available there. This shows that on or about the period when Sri Sen wrote the letter, the appellant was pursuing for replacement of part and necessary repair, which was promised to provide as per the warranty issued in respect to the Auto. Had there was no requirement of replacement of required part of the Auto as admissible as per the warranty card, opposite party No.1 and Sri R.K. Sen vide their letters dated 01.08.2000 and 06.07.2002 respectively would not have assured appellant to remove the defect by replacement of required part and to repair the vehicle. During warranty period, no purchaser is allowed to open the vehicle or Auto in case any major mechanical defect is noticed instead of taking is to the prescribed authorized dealer of the manufacturer or the Regional Sales Manager. In this end of the view appellant would not have personal knowledge about the required part to be substituted. So non-discloser of specific part of the Auto required to be replaced or the nature of repair of the Auto can not disentitle the appellant to claim for replacement of required part and necessary repair of the vehicle. The respondents are aware about the facilities guaranteed to appellant through the guarantee card. All these go to establish without any doubt that the Auto of the appellant suffered from mechanical trouble, for which the Auto became off-road from March, 2000. That though all important part of the Auto was required to be replaced, which indicates about the manufacturing defect of the Auto, by the respondents during the warranty period i.e. by April, 2000 yet the same has not been complied till the aforesaid letters dated 01.08.2000 and 06.07.2002 were written. No explanation is given by the respondents as to why no spare parts or necessary repair of the Auto could not be done. As the appellants have not removed the said defects guaranteed by them within the guarantee period and even thereafter, they have committed deficiency in service thereby putting the appellant into monetary loss, mental agony and torture.
11. A question was raised by the respondents that the Auto was in an using condition, for which appellant was earning and is found to have deposited instalment with the financier Bank in November, 1999 and in the months of February, March, April, May and June, 2001. Dealer of Biji Automobile Sri Susanta Sundar Subudhi has sworn in an affidavit dated 26.08.2002 in this respect. Being asked to confirm this by the District Forum, Berhampur, the Manager, Andhra Bank, Seragada has intimated vide his letter dated 14.01.2003 that appellant has deposited only rupees 10,150/- during February, 2000 to June, 2001 towards the P.M.R.Y. loan account. He does not say that appellant deposited out of his income utilizing the Auto. Therefore, no conclusion would be drawn that as because appellant was earning regularly by plying the Auto from the time of purchase, he would deposit money each month in total the aforesaid amount. A xerox copy of a notice of Loka Adalat issued by the Sherastadar Civil Judge, Sr. Division Court, Aska has been filed by the appellant. This discloses that the appellant had been noticed to appear in the aforesaid court on 12.05.2001 at 7.30 P.M. to settle the claim towards payment of amount outstanding against him towards loan of rupees 90,000/- taken from Andhra Bank in 1999. This shows that Andhra Bank had started Civil Suit against the appellant to realize the outstanding loan dues. Therefore, under what circumstance appellant deposited aforesaid amount of rupees 10,150/- is not known. This deposit cannot give rise to a presumption that as appellant was earning using the Auto, he was capable to pay towards Bank loan during the aforesaid months.
12. In view of the materials discussed in the foregoing paragraphs, it is established beyond doubt that as per the P.M.R.Y. scheme of the Government, the appellant had taken loan of rupees 90,000/- from the Andhra Bank, Seragada Branch and had purchased aforesaid Auto for self employment on 01.11.1999. That he had hypothecated the Auto to his financier Bank. But unfortunately the Auto became off-road from March, 2000 due to mechanical defect which could not be rectified by replacement of required part and necessary repair by the respondents contravening the warrantee condition without sufficient and satisfactory reason. The respondents have failed to prove that removal of the defect during warrantee period and even beyond that was beyond their control. As the Auto was unable to run, the appellant could not earn his livelihood and also could not pay Bank loan dues and was harassed. Therefore, the respondents have seriously neglected to the appellant. In this circumstance, the District Forum has caused serious injustice to the appellant in dismissing the C.D. case without going through the materials and evidence discussed above. Therefore, the said orders dated 13.06.2003 of the District Forum is hereby set-aside by us. Point (c) is decided accordingly.
13. Further, besides claiming rupees 50,000/- compensation and litigation expenses, the appellant has claimed in the C.D. case to direct respondents to replace the required part of his Auto and to bring it into running condition as well as to pay to his financing Bank interest accrued upon his loan account. But the condition relating to the Auto which was there when the C.D. case was filed, has been changed in the meantime during the pendency of the C.D. case. Though the respondents in their written version have pointed out that appellant is silent about the present condition of the same yet till conclusion of the C.D. case they were silent about this. But the xerox copy of the letter dated 06.07.2002 of respondent No.2 addressed to the appellant discloses that still he and his authority are ready to do the needful in respect to the necessary repair of the Auto. On 04.04.2003, the appellant has filed a petition in the C.D. case thereby intimated the District Forum that as he could not earn through the Auto which remained off-road due to aforesaid reason, his financing Bank had informed him to sale the Auto unless he deposits. The instalment dues with the Bank. When appellant informed this to the respondent No.2, respondent No.2 replied vide letter dated 01.01.2002 to him to provide necessary parts through M/s. Biji Auto (xerox copy of this letter has been filed by the appellant). But appellant could not get any such service through respondent No.1 as is revealed from the xerox copy of letter dated 17.01.2002 of the appellant addressed to respondent No.2. Thereafter vide letter dated 10.04.2002 (whose xerox copy is filed), appellant informed respondent No.2 that as he could not clear up the Bank dues, and the Auto was in the damaged condition, the financing Bank has sold away the Auto an auction to Sri Subash Chandra Panda. This letter might have been received by respondent No.2. As per his aforesaid petition dated 04.04.2003, the appellant intimated that said Auto has been put to auction sale in the month of March, 2002 by the Bank. This petition as well as copy of letters dated 01.01.2002, 17.01.2002 and 10.04.2002 have been filed in the District Forum in the presence of the advocate of the respondents. These are relevant for the purpose of knowing about the present condition of the Auto and Bank liability of the appellant. As the Auto in question has already been sold for realization of the Bank dues now question does not arise for replacement of required part or for its repair as well as to give a direction to the respondents to pay for the interest towards loan dues of the appellant as is prayed in the C.D. case. Otherwise it has been proved satisfactorily as to how much mental pain and suffering the appellant has undergone being unsuccessful to earn his livelihood due to the latches of the respondents in not bringing the Auto into working condition.
14. Therefore, we allow the appeal on contest with cost. We direct the respondents jointly and severally to pay compensation of rupees 40,000/- to the appellant with cost of litigation rupees 2,000/- within a period of one month from the date of receipt of the copy of this order and in failing to comply this order within this period, the aforesaid amount will bear interest @ 12% per annum from the period of expiry of said period of one month until actual payment.
Records received from the District Forum may be sent back forthwith.