C.C.No: 234/2008

BETWEEN:
Kolla Nagababu,
S/o Ramaiah, aged 41 years,
Bodawada Mandagunta Post,
Parchur Mandal, Prakasam Dist. ... Complainant.

Vs.

1. The Managing Director,
TATA Motors, 2nd Floor,
Surya Towers, ‘C’ Block,
104, S.P. Road, Secunderabad.

2. The Manager,
Jasper Industries Private Limited,
TATA Motors, Benz Circle, Vijayawada.

3. The Manager,
TATA Motors,
Kurnool Road, Ongole. …Opposite parties.

COUNSEL FOR COMPLAINANT: SRI B. LAKSHMI NARAYANA RAO,
ADVOCATE, ONGOLE.

COUNSEL FOR OPPOSITE PARTY NO.1&2: SRI A. RADHA KRISHNA MURTHY,
ADVOCATE, ONGOLE.

COUNSEL FOR OPPOSITE PARTY NO.3: NONE.

This complaint is coming on 25.02.2009 for final hearing before us and having stood over this day for consideration this Forum delivered the following:
ORDER:
1. This is a complaint filed by the complainant under Section 12 of Consumer Protection Act, 1986 directing the opposite parties to replace the vehicle bearing No.AP 27/R 2255 Tata Indigo CS.LS with new vehicle and to pay Rs.50,000/- towards insurance, registration expenses and Rs.1,500/- per each day of stoppage and Rs.1,00,000/- towards mental agony and costs of the litigation.

2. The averments in the complaint are as follows: The complainant is a Class-III Contractor, having his business office at Main Road, Addanki in Prakasam District. The first opposite party is the manufacturer of TATA Motors i.e., Tata Indigo CS.LS. and the 2nd opposite party is the authorized dealer. The complainant with a view to purchase Tata Indigo CS.LS car placed an order with the 2nd opposite party on 30th May, 2008 by paying an advance of Rs.5,000/- @ Rs.4,35,240/-. The opposite parties informed that car was ready for delivery and demanded excess amount of Rs.5,000/- as price variation. Accordingly on 18.06.2008 the complainant paid cash of Rs.69,799/- and the remaining balance of Rs.3,70,000/- was financed by Mahindra & Mahindra Finance, Ongole. On 19.06.2008 the 2nd opposite party delivered the vehicle at the business place of the complainant. Since from the date of the first service itself, the complainant is complaining unusual noise from the bottom of the vehicle. For the first two or three times, 2nd opposite party did not note down the complaint and the simply stated they will rectify it as the noise is coming from the seat.

Though the seats are adjusted, the noise is not rectified. Subsequently the noise become unbearable and the vehicle was handed over to the 2nd opposite party at their Guntur show room on 23.08.2008. At Guntur they noticed that the noise is coming from the bottom side as the joint between the rear floor and front floor got disturbed and the noise is coming from this joint. Since the 2nd opposite party did not choose to answer the grievances of the complainant and kept the vehicle with them. For each day, the complainant is constrained to take a rented vehicle at Rs.1,500/- per day. At the first instance, the 2nd opposite party addressed a letter to the 1st opposite party requesting to replace the vehicle. Thereafter inspite of many reminders, the opposite parties fail to solve the problem and so the complainant is constrained to issue legal notice to the opposite parties on 11.09.2008. The 2nd opposite party gave a reply with false allegations on 22.09.2008 stating that as per the warranty, the parts which are beyond repairs can be only be replaced and if it can be repaired, it shall have to be repaired. Such warranty condition is not there. As per the warranty conditions, their obligation is to repair or replace free of charge such parts of the car which in their opinion are defective and the parts so replaced by the company under warranty shall be their property.

The problem in this case is a manufacturing defect and cannot be repaired except by replacing with a new car. At the initial stage, the 2nd opposite party had promised to replace it with a new car, but started bad litigation as if the complainant is not co-operating with the opposite parties. The complainant had incurred around Rs.50,000/- insurance, registration, taxation etc. The complainant is also constrained to pay the loan installments without enjoying the car. There is negligence and deficiency in service on the part of the opposite parties. Hence, the complaint.

3. The petition against the 3rd party was dismissed on 01.12.2008 as not pressed by the complainant.

4. The opposite parties 1 & 2 filed their counter contending as fallows: The present complaint before the Consumer Forum at Ongole is not maintainable as the transaction of purchasing of vehicle took place at Vijayawada and delivered at Guntur. As per condition No.14 of the purchase order “Court at Vijayawada only will have jurisdiction on any dispute that may arise”. As such this Forum has no jurisdiction to entertain the present complaint as no part of cause of action arose with in the jurisdiction of this Forum and the complaint is liable to be dismissed on this ground. Alleged defect in the vehicle is absolutely repairable and the opposite party is always ready to repair the said defect. The defect is not a manufacturing one, and therefore the question of replacing with new vehicle does not arise. The complainant with evil intention and ulterior motive left the vehicle at the opposite parties auto garage. Inspite of letters addressed to the complainant on 10.09.2008 requesting him to attend and rectify the defect in the vehicle as per company norms, he has not responded. The complainant fail to attend the 1st service of the vehicle which is mandatory as per norms, at Guntur or Vijayawada work shop. The complainant came to Guntur work shop for the 1st instance with a complaint of A.C. water leaking at 2548 K.Ms.

The complainant brought the vehicle to the work shop at Guntur at 5112 K.Ms. with complaint on tyres and the same was rectified. The Assistant General Manager of service addressed to a letter stating that the alleged defects in the vehicle is only minor and minute and it will be repaired as per the company policy. But the complainant suppressing the same and issued a lawyer notice through his counsel. The opposite parties sent suitable reply to the said notice stating that the defect is repairable and will be attended to the highest standards. The allegation that the problem in the vehicle is a manufacturing defect and it cannot be repaired, except replacing with a new car is false. The 2nd opposite party never promised to replace the vehicle with a new vehicle. The complainant is not entitled for replacement with new vehicle since the alleged defect is from minor and it is not a manufacturing defect. For the foregoing reasons the opposite parties prays the forum to dismiss the complaint with costs.

5. On behalf of the complainant Exs.A1 to Ex.A8 were marked. The Ex.A1 is the Copy of Terms and Conditions. Ex.A2 is the Tax Receipt. Ex.A3 is the Reply notice of O.P.2. Ex.A4 is the Office copy of lawyer notice. Ex.A5 is the Postal Acknowledgements of O.Ps.1&2. Ex.A6 is the Photo showing the defects in body of car issued by OP2. Ex.A7 is the Letter addressed by O.P.2 to O.P.1. Ex.A8 is the Sales Invoice dated 18.06.2008 issued by O.P.2.

6. On behalf of the opposite parties Exs.B1 to Ex.B10 were marked. Ex.B1 is the Purchase order form. Ex.B2 is the Sales Invoice. Ex.B3 is the photo taken at the time of delivery of the vehicle to the complainant. Ex.B4 is the Security Book. Ex.B5 is the Job Card dated 01.07.2008. Ex.B6 is the Job Card dated 25.07.2008. Ex.B7 is the Job Card dated 23.08.2008. Ex.B8 is the Job Card dated 28.08.2008. Ex.B9 is the Letter dated 10.09.2008 to the Kolla Naga Babu, Biodavad Manda Gunta, Parchuru Mandal, Prakasam District. Ex.B10 is the Debit Note dated 18.06.2008.

7. The point for consideration is whether the complainant is entitled for the reliefs in the complaint.

8. The issue relating to jurisdiction raised by the opposite parties was already answered in the order dated 19.01.2009.

9. It is an admitted case that the complainant purchased Tata Indigo CS.LS model vehicle from the 2nd opposite party who is the authorized dealer of Tata Motors after availing finance from Mahindra & Mahindra Finance, Ongole for Rs.4,35,240/-. The vehicle was delivered to the complainant on 19.06.2008. Ex.B1 is the purchase order form and Ex.B2 is the sales invoice and Ex.B3 is the photo taken at the time of delivery of the vehicle to the complainant.

10. The grievance of the complainant is that since day one there was unusual noise from the bottom of the vehicle and subsequently the said noise became unbearable. According to the complainant it is due to the manufacturing defects in the vehicle and therefore he handed over the vehicle to the work shop at Guntur on 23.08.2008 and ever since the vehicle is in the work shop. The complainant is not willing to take back the defective vehicle and his is insisting to replace the vehicle with new vehicle.

11. The learned counsel for the opposite parties argued that manufacturing defect is not defined anywhere and only an auto mobile expert can say whether such defect is manufacturing defect. If any expert says that it is a manufacturing defect manufacturer has no other go except the replace the vehicle. He further argued that the burden is upon the complainant to prove that there is manufacturing defect in the vehicle, but the complainant fail to prove the same. He further argued that if the vehicle is not repairable then only the question of replacement of the vehicle arise. In the present case the defect is minor and the same is repairable and the opposite parties are ready to repair the vehicle. Since, the defect pointed out by the complainant is not a manufacturing defect and when it is repairable opposite parties are not liable to replace the vehicle with new vehicle and the complaint is liable to be dismissed.

12. It is not in dispute that the vehicle was delivered to the complainant on 19.06.2008. As per the Job Card Ex.B5 dated 01.07.2008 within two weeks the vehicle was taken to the work shop complaining water leakage from A.C. As per Ex.B6 Job Card dated 25.07.2008 the vehicle was taken to the work shop for plastic component Welding/Repairs/Painting – Tube joint air leak. As per Ex.B7 Job Card the vehicle was again taken to the work shop on 23.08.2008 complaining body sound it means within two months after the vehicle covered 7906 K.Ms. the complainant notice sound from the body of the vehicle. As per Ex.B8 Job Card dated 28.08.2008 the vehicle was again taken to the work shop with same complaint i.e., Under Carriage Noise + Bottom Noise and the vehicle was left at the work shop and not taken back by the complainant.

13. 2nd opposite party contended that there was no manufacturing defect at all. According to the 2nd opposite party the noise and the sound is due to non welding of bottom plates at the place of joint and it can be welded. The defect is minor and it can be rectified by welding the joints and they are ready to do it. But the complainant is not cooperating and has not given his concerned to attend to the repair work.

14. The learned counsel for the complainant argued that it is not the case of the opposite parties that the vehicle was used roughly or negligently by the complainant. It is a clear case of manufacturing defects in the vehicle. He further argued that total body of the vehicle is defective and it is not that a part of the vehicle is defective. So, that it cannot be replaced with a new part. Since, there is manufacturing defect in the vehicle 1st opposite party being the manufacturer and the 2nd opposite party is being the dealer are liable to replace the vehicle with new one.

15. The dealer is saying that the defect can be rectified by welding the joint. The grievance of the complainant is that if a new vehicle is subjected to welding and repairs it may loose resale value and the prospective buyers may suspect about the quality of the vehicle.

16. The complainant is relying on the letter Ex.A7 written by the dealer to the Senior Mechanic in Tata Motors. The learned counsel for the opposite parties argued that as a dealer the 2nd opposite party informed the manufacturer about the un happiness expressed by the customer and it is only internal correspondence between the dealer and the manufacturer and it is not binding on the manufacturer. What ever it may be the dealer admitted that they wrote the letter to Mr. Sunil Reddy, Senior Mechanic in Tata Motors. In their letter the dealer informed Mr. Sunil Reddy, that un usual noise is coming from the bottom side of the vehicle and on investigation they found that the joint between the rear floor and front got disturbed and noise is coming from this joint and sought for his advise. Ex.A6 is the photo showing from where noise is coming. Ex.A7 is the letter. We do not know what advise the Senior Mechanic has given to the dealer to rectify the defect. Certainly he might have given some reply. it is not before the forum and it is suppressed if it is produced it would be helpful to know whether the defect is repairable or not.

17. No one can deny that the very purpose of purchasing a new car is to have a safe and comfortable journey. The main grievance of the complainant is that there is unusual noise/sound is coming from the floor of the car. No person while traveling in a car would like to hear unusual sound. Unless there is a defect in the new car no person would come forward to surrender the vehicle within a short period of two months. The complainant having fed up with the unbearable noise in the car surrendered the vehicle. I agree with the dealer that manufacturing defects are such would cannot be repaired and removed easily and in the present case the defect can be rectified by welding the joint. But we should not forget that if a new car is subjected to welding and if any patch work is done it may loose resale value and the complainant may not wholly satisfy with it. For these advanced type of vehicles there won’t be any chasis on which floor could be resting.

The body is a moulded one. So, unless bottom floor of the vehicle is strong enough to with stand the weight of the body owner cannot feel safe to travel in the vehicle. Even if joint is welded as suggested by the dealer there is no guarantee that it may not come out again and with stand weight as there is defect in the bottom body of the vehicle. I agree with the dealer that there are no defects in the engine of the vehicle. The defect was in the bottom body of the vehicle. So, defective body can be replaced and not the vehicle.

18. Considering the evidence on record and on hearing both sides I am of the opinion that instead of ordering for the replacement of the vehicle O.Ps. 1 & 2 can be directed to replace the body of the vehicle with new one.

19. The complainant further contended that since the dealer did not choose to answer his grievance and kept the vehicle with it for each day he is constrained to take a rented vehicle @ Rs.1,500/- per day and claiming the same from the dealer. But the complainant is fail to produced any evidence to show that he was used a rental car. Therefore, I am of the opinion that he is not entitled to claim any amount under this head.

20. In the result, petition is allowed and the opposite parties 1 and 2 are directed to replace the body of the vehicle with new one and hand over defect less vehicle to the complainant within One month from the date of order and also to pay Rs.20,000/- as compensation towards mental agony and Rs.2,000/- towards costs of the litigation.

C.C. No. 95 /2008


Between


Smt. P. Sarojamma W/o P.Subramanyam,
Aged about 73 years, Land-lady, residing at
Dr.No. 10-299, D.I.Road, Chittoor Town & Dist.,
… Complainant.


And

1.The TATA Motors Limited, rep., by its
Manager, Branch Office situate at
Dr.No. 20-543/2, Sri Balaji Complex,
Opp: Raghava Theater, Chittoor Town.

2.The TATA Motors Limited, rep., by its
Authorized person, Office situate at
Badri Nagar, Opp: Honda Show Room,
Renigunta Road, Tirupathi Town,
Chittoor District.

3.The TATA Financial Services Limited,
C/o TATA Motors Limited, rep., by its
Authorized person, office situated at
1st Floor, Akhil Plaza, Opp.Current Office,
Postal Colony, Nellore Town & District.

4.The TATA Motors Limited, TATA Motors Finance
rep.,by its Authorized person, Regd., Office at
Bezzola Complex, 1st Floor, V.N.Purev Marg,
Chembur, Mumbai – 400 071.

… Opposite Parties.

This complaint coming on before us for final hearing on 12.02.2008 and upon perusing the complaint, written versions, affidavits, material documents and on hearing Sri D. Reddeppa Reddy, counsel for the complainant, and Sri P.Purushottama Rao counsel for 1st opposite party and Sri G.S.Moorthy, counsel for the opposite parties 2 to 4 and having stood over till this day for consideration, the Forum made the following:-
ORDER

DELIVERED BY SRI. V. PARTHASARADHI RAO, B.A., L.L.B., President
ON BEHALF OF THE BENCH



This is a complaint filed by the complainant U/Sec. 12 of Consumer Protection Act to direct the opposite parties 1 to 4 to receive the actual amount due to them towards loan for purchase of the car and Rs. 50,000/- towards compensation for deficiency in service.

The complainant submits that she purchased a TATA Indica car bearing Registration No. AP 03 AA-5675 under hire purchase agreement for Rs. 3,90,787/- and paid an amount of Rs. 8,800/- cash and Rs. 1,90,787/- by way of Demand Draft to the 4th opposite party and took delivery of the said vehicle.

The complainant submits that she got registered the said car in her name. She agreed to pay the balance amount of Rs. 2,30,000/- in 29 installments at Rs. 7,900/- per month, commencing from 11.08.2006 to 11.08.2008. The complainant submits that she gave post dated cheques to the opposite parties she paid a total sum of Rs. 1,76,400/- and due an amount of Rs. 53,600/- to the opposite parties. The total cost of the car is Rs. 3,90,787/- which includes loan amount of Rs. 2,30,000/- with interest. She is ready and willing to pay the balance amount of Rs. 53,600/- to the opposite parties and obtain No Objection Certificate from them. The opposite parties are demanding more than Rs. 1,00,000/- to issue No Objection Certificate and causing mental stress to her. Apart from that the opposite parties 1 & 2 are threatening the complainant stating that they will seize the vehicle and initiate criminal case against them. She gave legal notice to the opposite parties on 07.08.2008. After receiving legal notice the opposite parties are threatening the complainant by Telephone that they are going to seize the car at the earliest date. Due to the acts of the opposite parties the complainant suffered both mentally and physically. Therefore the complainant filed this complaint to direct the opposite parties to receive actual amount payable to them and the complaint may be allowed.

The 1st opposite party filed Written Version alleging that this opposite party is only a service provider of the 4th opposite party. Its duties are very limited as per the agreement entered with the 4th opposite party. The 1st opposite party was appointed by the 3rd opposite party as per the terms and conditions of the agreement dt. 15.03.2006. As per condition No. 7 of the agreement there is no relationship of master and servant in between 4th opposite party and 1st opposite party. The functions of service provider are to issue proposal forms and after it is filled up by the hirer with requisite documents as mentioned in the proposal form it would be forwarded to the 3rd opposite party, who will issue loan agreement to the hirer, who intends to get loan from 4th opposite party through 1st opposite party. The 1st opposite party will collect the filled up agreement along with post dated cheques as mentioned in the agreement from the hirer and forward the same to the 3rd opposite party. The 3rd opposite party will issue releasing order of the vehicle to the nearer dealer of the 4th opposite party. Then the hirer can approach the dealer as mentioned in the releasing order and get the vehicle. Thus the duty of the 1st opposite party will be ceased. There is no question of threatening the complainant. The 1st opposite party is not necessary party to the present complaint. The complaint may be dismissed.

The Opposite Parties 2 to 4 filed Written Version alleging that the complainant does not qualify the ingredients of a valid complaint as envisaged under Sec. 2(c) of C.P.Act. The complaint transaction is a commercial in nature and it does not fall within the scope of the C.P. Act and the same may be rejected.

The opposite parties 2 to 4 submit that the complainant have availed a loan of Rs. 2,00,000/- for the purpose of purchasing TATA Indica car under hire purchase agreement dt. 11.08.2006. The loan is repayable in 25 equal installments at Rs. 7,900/- per month. The complainant has not complied with the terms as to the repayment of the loan obtained by her. She is habitual defaulter. As on 02.12.2008 the complainant is liable to pay Rs. 92,865.57/- towards the foreclosure of loan account in question. All though a sum of Rs. 2,30,000/- including finance charges of Rs. 30,000/- is agreed to be repaid, in case of default of regular monthly installments on the part of the complainant, she is liable to pay over due interest as well as other charges. When the complainant is due Rs. 92,865.57/- the opposite parties can not accept for a sum of Rs. 53,600/- from the complainant towards foreclosure of the said loan transaction. There is no question of issuing No Objection Certificate to the complainant, unless she pays full and final settlement of the loan account in question. It is denied that they behaved high handedly with the complainant and threatened her with dire consequences. The complainant is not entitled to seek any relief or compensation from the opposite parties. The complaint may be dismissed.

On the basis of averments, the following points arise for consideration:
1)Whether this complaint is not maintainable in this District Forum ?

2)Whether the opposite parties 1 to 4 are demanding an excess amount of Rs. 92,865.57/- and excess interest and other charges illegally ?

3)Whether the complainant is due only a sum of Rs. 53,600/- to the opposite parties?

4)Whether the opposite parties committed deficiency of service?

5)To what relief?



The complainant filed Chief Affidavit of PW-1 and marked Ex.A1 to A4. The opposite party filed Chief Affidavit of RW-1 & 2 and marked Ex.B1 to Ex.B3.

Point No. 1 :-


The learned counsel for the opposite party contends that the complainant is not a consumer as defined in Sec. 2(1)(d) of C.P.Act and this complaint is not maintainable and the same may be dismissed. He further contends that the opposite parties 2 to 4 have no Branch at Chittoor and it has no jurisdiction.

The learned counsel for the 1st opposite party contends that it is only a service provider of 4th opposite party. There is no relationship of master and servant between 1st opposite party and 4th opposite party. The function of the 1st opposite party is to issue proposal forms to the hirer and after it was filled up, the same will be forwarded to the 3rd opposite party, who will issue loan agreement to the hirer and issue releasing order of the vehicle to the nearer dealer of the 4th opposite party. Then the hirer can approach the dealer and get the vehicle. Therefore the 1st opposite party is nothing to do with the business of the opposite parties 2 to 4 and he is not liable for any compensation to the complainant.

The Written Version filed by the 1st opposite party clearly discloses that the 1st opposite party has opened an office in Chittoor and getting business for Opposite parties 2 to 4. It is 1st opposite party that is processing everything to the hirer. The 1st opposite party is supplying proposal forms. It is obtaining all necessary documents and also post dated cheques from the hirer and forwarding them to 3rd opposite party. The major work for obtaining loan and releasing the vehicle to the complainant is processed by 1st opposite party only. Therefore the 1st opposite party is playing an important role for selling cars on behalf of opposite parties 2 to 4 and it is doing business in Chittoor. Further the 1st opposite party itself declared that it is service provider of opposite parties 2 to 4. Therefore this Forum has jurisdiction to entertain the complaint.

The learned counsel for the opposite parties contends that the opposite parties 1 to 4 do not render any services within the meaning of Sec. 2(1)(g) and Sec. 2(1)(d) of C.P.Act, 1986 under hire purchase agreement and the complainant is not a consumer and this Forum has no jurisdiction.

In this regard he relied on the decision reported in S.C – National Commission Consumer Law Cases (2005-2008 – at Page No. 744 - in Between Cholamandalam DBS Finance Ltd., Vs Kishore Jain - wherein their lordships held as follows :-
……The first plea taken by the petitioner is that in view of the provision for ‘arbitration in the hire – purchase agreement’, this Consumer For a has no jurisdiction. It is made clear that in view of the settled position of law, that Section 3 of the CPA, 1986 clearly stipulates that this is an ‘additional remedy’ hence this is consistently held by this Commission that it is for the party to decide as to which option to exercise ? The reliance of the learned Counsel of the petitioner on the order of this Commission in the case of Arihant Converters Vs United India Insurance Co.Ltd., II (1991) CPJ 246, is misplaced for the simple reason that in this case both the parties agreed for arbitration, which is not the case before us. Reliance placed on the judgment of the Hon’ble Supreme Courtin the case of “MD, Orix Auto Finance (India) Ltd., Vs. Jagmander Singh & Anr.,II(2006) SLT 166, Appeal (Civil) No. 1070 of 2006” again does not help the petitioner, as the Hon’ble Supreme Court has not ousted the jurisdiction of the Consumer For a for the simple reason as that was not the issue before them”.

And also he relied on the decision reported in S.C – National Commission Consumer Law Cases (2005-2008 – at Page No. 137 in Between Ram Deshlahara Vs Magma Leasing Ltd., - wherein their lordships held as follows
……More over, under a hire –purchase transaction the financier does not render any service within the meaning of Consumer Protection Act, 1986 (for short the ‘Act’) and the petitioner is, thus, not a consumer. We do not find any illegality of jurisdictional error in the orders passed by For a below warranting interference in revisional jurisdiction in Section 21(b) of the Act.

In view of ruling laid down by the National Commission, New Delhi in Cholamandalam DBS Finance Ltd., Vs Kishore Jain this Forum has jurisdiction to entertain the complaint. In the said case their lordships held that the Hon’ble Supreme Court has not ousted the jurisdiction of this Consumer Fora.

According to me the rule enunciated in Cholamandalam DBS Finance Ltd., Vs Kishore Jain by National Commission, New Delhi is more applicable to the present case and I rely in 2007 –CTJ -557 (Supreme Court) (CP) in Kishore Lal Vs. Chairman, Employees State Insurance Corporation - where in their lordships held as follows :-
It has been held in numerous cases of this Court that the jurisdiction of a consumer Forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In the case of M/s Spring Meadows Hospital and Another Vs. Harjot Ahluwalia and Another, 1998 CTJ 81 (SC) (CP) = AIR 1998 SC 1801, it was held that the Consumer Protection Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction. In State of Karnataka Vs Vishwabarathi House Building Co-op.Society and Others, 2003 CTJ 85 (SC) (CP) = AIR 2003 SC 1043, the Court speaking on the jurisdiction of the consumer for a held that the provisions of the said Act are required to be interpreted as broadly as possible and the for a under the Consumer Protection Act have jurisdiction to entertain a complaint despite the fact that other for all courts would also have jurisdiction to adjudicate upon the lis. Therese judgments have been cited with approval in paras 16 and 17 of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society V. M.Lalitha (deceased) through L.Rs and Others 2004 CTJ I(SC) (CP) =(2004) I SCC 3005. The trend of the decisions of this Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which fralls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different for a have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated”.

There is no special Act having express provision under hire purchase agreement prohibiting the jurisdiction of the consumer Forum. Further Financial Institutions are also providing services to the hirers for providing loans to them. The said fact was spoken by 1st opposite party in its Written Version in clear words. The 1st opposite party stated that it supplies proposal form to the hirers. It also collects required documents along with filled up form. It also collects finance charges and post dated cheques, opposite parties 2 to 4 charges interest, penal interest and other services charges. All these acts are called rendering services with in the meaning of Sec. 2(1)(o) of C.P.Act.

In view of the ruling laid down by the lordships in National Commission, New Delhi as well as Hon’ble Supreme Court, I am of the view that this Forum has jurisdiction to entertain this complaint. Further it is the 1st opposite party himself in its Written Version stated that it is a service provider to the hirer on behalf of Opposite parties 2 to 4. Therefore the complainant is called Consumer U/Sec. 2(1)(o) and Sec. 3 of C.P.Act.

In the case reported in S.C. National Commission Law Cases (2005-2008 at Page No. 744 it was held that arbitration clause in the hire purchase agreement is an additional remedy and not in derogation with any other law. Therefore I am of the view that the complainant is a consumer and this Forum can entertain this complaint.
This point is answered accordingly.

Points No. 2 to 4 :-
The learned counsel for the complainant contends that the complainant purchased TATA Indica Car for a sum of Rs. 3,90,787/- under hire purchase agreement, she paid Rs. 1,90,787/- and obtained loan of Rs. 2,00,000/- and financial charges of Rs. 30,000/-. The complainant agreed to pay the loan amount of Rs. 2,30,000/- including interest in 29 equal monthly installments at Rs. 7,900/- per month. The 1st installment commences on 11.08.2006 and ends by 11.08.2008. He further contends that the complainant paid Rs. 1,76,400/- and due only Rs. 53,600/-, but the opposite parties are demanding more than Rs. 1,00,000/- for issuing No Objection Certificate and threatening to seize the car from her. The collection of excess interest and threatening to seize car for non-payment of excess interest contrary to the terms and conditions is unfair trade practices. Therefore the complainant filed this complaint before this Forum that she is willing to pay the actual loan amount of Rs. 53,600/- and direct the opposite parties to receive the same and issue No Objection Certificate.

PW-1 is the complainant himself, he stated that he obtained loan of Rs. 2,30,000/- and agreed to pay the same in 29 equal equal monthly installments of Rs. 7,900/- per month, she gave post dated cheques to the opposite parties and paid a total sum of Rs. 1,76,400/- on 15 occasions and now she is due a sum of Rs. 53,600/- till this date.

PW-1 stated that the opposite parties are demanding to pay more than Rs. 1,00,000/-, which they are not entitled and they are harassing her.

RW-2 is a Manager, working with opposite parties 2 to 4. He stated that the complainant availed a loan under hire purchase agreement from the opposite parties for a sum of Rs. 2,00,000/- and purchased TATA Indica car. He stated that the complainant has not complied as to repayment of the loan amount and she is a defaulter. RW-2 stated that as per the Statement of accounts as on 02.12.2008 the complainant is liable to pay Rs. 92,865-57/- for foreclosure of the loan amount.

RW-1 stated that unless the complainant pays all the installments due to the opposite parties she is not entitled for No Objection Certificate. Therefore there is no deficiency on their part and the complainant is not entitled for any relief in this case. RW-2 furnished the details of payments made by the complainant and the over due charges and cheque bouncing charges collected by the opposite parties. The opposite parties 1 to 4 admitted that the complainant paid an amount of Rs. 1,75,700/- till the date of filing of affidavit on 25.02.2009. The complainant also admitted in her Written Arguments that she paid Rs. 1,75,700/- and she is due only Rs. 54,500/-. The dispute between the complainant and opposite parties is only with regard to over due charges 29,492.21/- and cheque bouncing charges Rs. 8,400/- and total sum of Rs. 37,892.21/-. According to the complainant demanding these amounts is unfair trade practice. I agree with the learned counsel for the complainant. Demanding excess penal interest not provided by agreement is unfair trade practice. In the case the agreement Ex.A2 does not speak of collecting penal interest. The complainant admits that she did not pay the 29 installments regularly as agreed by her and she paid them with a little days less than one month and the opposite parties calculated the delays in their statement accompanied to the affidavit of RW-2 and arrived at Rs. 29,492.21/-. The complainant is not willing to pay over due charges of Rs. 29,492.21/-. The hire purchase agreement Ex.B2 does not disclose the rate of interest on delayed payments. But the opposite parties collected interest at 36% p.a on delayed payments. Most of the delayed payments are less than a month. The agreed interest at the time of sanctioning loan is 6% p.a only. In such a case the opposite parties collecting penal interest at 36% p.a is too excess and it is unfair trade practice. When hypothecation agreement Ex.B2 does not speak of charging penal interest on delayed payments. I feel it proper awarding reasonable penal interest at 12% on delayed payments, because the opposite parties charged interest at 6% p.a on principal loan amount at the time of sanctioning loan. Considering these aspects and allowing 12% p.a penal interest on delayed payments, this Forum grants an amount of Rs. 9,830/- towards penal interest as against Rs, 29,492/-.

The opposite parties collected Rs. 8,400/- towards cheque bouncing charges. They have not filed any evidence that all the cheques are bounced. It is admitted by the opposite parties that the complainant is paying Demand Drafts when ever the cheques are bounced. The opposite parties have not filed any evidence that they incurred Rs. 8,400/- towards cheque bouncing charges. Therefore the same are disallowed.

The opposite parties are entitled to Rs. 2,30,000/- and penal interest at Rs.9,830/-. The complainant is due an amount of Rs. 2,39,830/- (Rupees two lakhs, thirty nine thousand, eight hundred and thirty only) as on the date of filing of this complaint, she paid already Rs. 1,75,700/- and she is due an amount of Rs. 64,130/-. The complainant stated that she paid Rs. 15,800/- under receipt Ex.A5, after filing this complaint. Then the complainant is due only Rs. 48,330/- and she is directed to pay the same to the opposite parties within 6 weeks from the date of this order, failing which it carries interest at 9% p.a.
Points 2 to 4 are answered accordingly.

Point No. 5:-
In the result the complainant is due only Rs. 48,330/- (Rupees forty eight thousand, three hundred and thirty only) and she is directed to pay the same to the opposite parties within 6 weeks from the date of this order, failing which it carries interest at 9% p.a. After the amount is received within one week thereafter the opposite parties are directed to issue No objection Certificate to the complainant. Thus the complaint is allowed in the circumstances no costs.

Smt. Keshav Mani W/O of Shri Hari Dass, Resident of Village Naini, P.O. Jeori, Tehsil Rampur, District Shimla.

… Complainant
Versus



1. Tata Mtoors Ltd., Jamshedpur, Jharkhand through its General Manager.

2. Dinesh Automobiles, Khaneri, Rampur through its Proprietor.

3. Goel Automobiles, Authorised dealer for Tata Commercial Vehicle, Kholi, P.O. Dugha, Hamirpur, H.P.

4. Tata Motors Finance, a division of Tata Motors Limited
Bombay House 24, Homimodi Street, Mumbai-400001
Through its Manager.

…Opposite Parties

Coram

Shri Pritam Singh (District Judge) President.
Ms. Karuna Machhan, Member (Female)
Mr. Charanjit Singh, Member (Male)
………………………………………………………………………..

For the complainant: Mr. Sanjeev Bhushan, Advocate.

For the Opposite Parties: Mr. Shashi Bhushan, Advocate
for OP No.1.
Mr. Pradeeh Chauhan, Advocate
for OP No.2.
Mr. Dheeraj Kanwar, Advocate
vice Ms. Shilpa Sood, Advocate
for OPs No.3 & 4.


O R D E R:
Pritam Singh (District Judge) President:-This order shall dispose of complaint filed under section 12 of the Consumer Protection Act, 1986. The facts in brief as set out in the complaint are that she is registered owner of truck bearing registration No.HP-63-1334 which was purchased by her from the OP No.3 through OP No.2 in August, 2005 for a total consideration of Rs.6,96,092.99. It is her case that after 2-3 months of the purchase of the aforesaid truck, it started giving problem and as such it could not be plied by her. That she brought this fact to the notice of the OP No.2 and asked him to rectify the defect/problem developed in the truck. But, the OPs on one pretext or other dilly-dallied its rectification and she was made to suffer financial huge loss. That at the advice of the OP No.2, the truck in question was taken to Vasco Motors, Chandigarh, whereas she was told that it was a manufacturing defect in the vehicle as sub-standard material was used by manufacturer. That this manufacturing defect in truck developed during the warranty period and truck is lying parked and cannot be plied. It is further alleged that the OPs by selling a defective truck have indulged in an unfair trade practice. Hence, feeling dissatisfied and aggrieved by the act of the OPs, the complainant perforce filed this complaint against the OPs.

2. The complaint is resisted by OPs who took several preliminary objections regarding maintainability of complaint, jurisdiction of the Forum to try complaint and status of the complainant as consumer etc. On merits, the OP No.1 alleged that the truck was purchased by the complainant No.2 and neither the complainant nor the OPs No.2 & 3 brought the defect to their notice regarding any manufacturing defect in the truck. Hence, they are not liable for any loss. The OP No.2 in its separate reply alleged that after careful examination of the truck, it was found that the body channel and chassis brackets have developed cracks and request was made to the OP No.3 to replace or give the permission to weld the same bracket and channel from authorized repairer and the OP No.2 wrote various letter to the OP No.3, but to no avail. The OPs No.3 & 4 have filed reply and denied the allegations levelled against them by the complainant. That there being no deficiency in service, the complaint is sought to be dismissed. Thereafter, the parties led evidence in support of their claim/counter claim.

3. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the complaint.

4. It may be stated that undisputedly the truck bearing registration No. No.HP-63-1334 financed by the OP No.4 was purchased by the complainant from the OP No.3 through the OP No.2 in August, 2005 for consideration of Rs.6,96,092/-. The complainant alleged that after 2-3 months of the purchase of the aforesaid truck, i.e. October, 2005, it started giving problem and it could not be plied by her. That this fact was also brought to the notice of the OP No.2 who was asked to rectify the defect/problem developed in the truck, but the defect could not be rectified by the OP No.2 and the problem aggravated. Therefore, at the advice of the OP No.2, the truck in question was taken to Vasco Motors, Chandigarh, where, the complainant was told that it being major defect was a manufacturing defect developed during the warranty period. That, she could not ply the truck and it is lying parked and she thus sustained huge financial losses.

5. The complainant in support of her case has also placed on record the copy of the invoice Annexure C-1 and copy of sale certificate Annexure C-2. Both these documents have been issued by the OP No.3, Goyal Automobiles, Authorized dealer for Tata Commercial Vehicle, Hamirpur. The complainant further relied upon the letter Annexure C-3 written by OP No.2 to OP No.3 wherein it was pointed out that major cracks have appeared in body channel and chassis bracket of vehicle in question within last three months and the vehicle is off the road and, hence request was made either to replace the aforesaid parts of the vehicle or to give permission to weld the chassis brackets and body channel of vehicle from the authorized service provider.

6. The complainant has also relied another letter Annexure C-4 issued by the OP No.2 to OP No.3 whereas similar request was made to OP No.3 to look into the matter it being urgent. The OP No.3 then wrote letter dated 20.01.2006 to the OP No.2 and it was informed that the photographs and all the required details of the vehicle in question has been received by them and the case was being referred to ASO Chandigarh. The complainant also relied upon other letter dated 28.01.2006 issued by the OP No.2 addressed to Shri Venugopal Bhardwaj, Works Manager, of OP No.3, Goyal Motors, Hamirpur and request was made to do the needful and to carry out the repair of the defective parts i.e. body channel & chassis brackets of the truck. The complainant further relied upon letter dated30.01.2006 addressed by the OP No.2 to Gobind Motors, Barnala Road, Bhadaur, District Sangrur vide which request was made to carry out the necessary repairs in the vehicle to the satisfaction of the customer as the vehicle was being sent to them for repairs.


7. Thus, from the aforesaid correspondence exchanged between the OPs No.2 & 3, it is manifest and clear that the body channel and chassis brackets of the vehicle in question developed major cracks within three months from its purchase, i.e. within the warranty period and this fact was brought to the notice of the OPs No.2 & 3 by the complainant. But, the vehicle in question could not be repaired to make it road worthy by the OPs No.2 & 3 thereby complainant was made to suffer huge financial losses as she had taken loan from the OP No.4 for purchasing the aforesaid truck and she was not in a position to repay EMI to her financier.

8. It may be pertinent to state that during the pendency of this complaint, the complainant moved application for appointment of the Local Commissioner and sought permission to get the vehicle mechanically examined from the mechanical expert which was allowed consequently, the vehicle was got mechanically examined by the complainant from Works Manager, HRTC Rampur Bsr., who after mechanically examining the truck in question, i.e. HP-63-1334, submitted report dated 14.05.2007 which is placed on record. As per this report, the truck body channel found cracked and there was leakage of the engine oil resulting high consumption. The automizer pipes broken frequently as per the statement of the owner resulting consumption of HSD higher side. It is also reported that the truck is not in a position to ply on road and it is parked near Badhal after covering distance of 21,000 Kms. Therefore, from the aforesaid mechanical report issued by independent mechanical expert, it is clear that there is manufacturing defect in the vehicle which could not be rectified by the by the OPs No.2 & 3 that is why it has gone out of order and now lying parked.

9. No doubt, the aforesaid truck has been manufactured by the OP No.1-Tata Motors Ltd., but nothing has been brought on record either by the complainant or by OPs No.2 & 3 whether they at any time brought this fact to the notice of the OP No.1-manufaturing company that the vehicle in question has developed manufacturing defect in its chassis and body channel and these parts are required to be replaced by the OP No.1. The complainant also failed to prove that there was any deficiency in service on the part of the OP No.1. However, it has been proved by the complainant by the aforesaid documentary evidence and by the admission of the OPs No.2 that the vehicle in question developed defect during the warranty period which is manufacturing defect that is why vehicle in question is still off the road. Therefore, the OPs No.2 & 3 are certainly guilty of rendering deficient service who indulged in an unfair trade practice by selling defective truck made of sub-standard material and complainant was made to suffer huge losses for no fault on her part. .

10. For foregoing reasons/discussion we allow this complaint. Consequently, the OPs No.2 & 3 are jointly and severally directed to replace truck 1109 bearing registration No.HP-63-1334 bearing chassis No.416301 GUZ 122748 & Engine No.497 TC 85GUZ 120131 with the new one of the same make and model, duly functional and operational within a period of one months after the date of receipt of copy of this order, failing which they both shall be liable to refund the sale consideration of the truck amounting to Rs.6,96,092.99 to the complainant alongwith interest at the rate of 9% per annum with effect from the date of filing of the complaint, i.e. 20.03.2006 till making full payment of the aforesaid amount.
The complainant is also held entitled to reasonable damages for the mental agony and harassment meted out by her at the hands of these OPs to the tune of Rs.50,000/- payable by OP No.2 & 3. The litigation cost is quantified at Rs.3,000/-. The complainant is however directed to hand over the defective truck in question to the OPs on receipt of the amount as ordered supra. The complaint against OP No.1 & 4 is dismissed being not maintainable.

Chander Shekhar son of Sh. Kewal Krishan resident of House No. B, V.651, Guru Angad Nagar, Gali No.3, Chandigarh Road, Nawanshahar.
(Complainant)
Vs.

1. M/s Tata Motors Limited, branch Office at Ferozepur Road, Ludhiana, through Branch Manager (Hire-Purchase)

2. M/s Tata Motors Finance Limited, Bureau of Hire-Purchase, Credits Operating Division, Bezzola Complex, 1st Floor, V.N. Purav Marg, Chambur, Mumbai-400071 through M.D.

3. M/s Dada motors Limited, Savitri Complex, G.T. Road, Ludhiana through its Manager.
(Opposite parities)

Complaint under section 12 of the Consumer Protection Act, 1986.
….

Quorum:
Sh. T.N. Vaidya, President.
Sh. Rajesh Kumar, Member.

Present:
Sh. Subash Sharma Advocate for the complainant.
Opposite parties no.1 & 2 ex-parte.
Sh. Ashok Mittal Advocate for OP No.3.


O R D E R
T.N. VAIDYA, PRESIDENT:
1. Complainant purchased a truck (registration no. PB.32E-9202) from opposite party no.3 and the same was financed by opposite party no.1 & 2, in June 2005. Price of the truck was Rs.7,30,000/- and totally financed by opposite party no.1 & 2. Opposite parties no.1 & 2 charged Rs.45,000/- as insurance amount for three years from the complainant. Loan was repayable in 46 monthly instalments of Rs. 18,930/- each. Till 20.8.2007, many instalments had been paid by the complainant to the financer. After purchased of the truck, complainant spent Rs.1,10,000/- i.e. Rs.55000/- for preparing cabin, Rs.13,000/- for preparing R.C. , Rs. 15,000/- were paid as calliberation charges, Rs.15,000/- for obtaining explosive permit, Rs.20,000/- for grant of route permit and Rs.30,000/- for safety fitments. In addition, a sum of Rs.59,616/- is lying with the opposite party no.3, which was paid immediately after taking delivery of the truck on 10.6.2005 and 13.6.2005. It was orally settled at that time that the amount will remain with them and in case of any default committed in payment of E.M.I, that amount will be adjusted against the said E.M.I.. Opposite party no.3 is still retaining this amount. On 24.8.2007, all instalments were paid, when opposite parties took illegal possession of the truck by force using musclemen and threatened to kill the complainant. Possessing of the truck is illegal, unlawful, without equity and natural justice. Therefore, they indulged in malafide trade practice, as 60% of EMI had been paid. No notice of default of monthly instalments was ever given nor any notice was served before taking illegal possession of the truck. In these circumstances, complainant filed this complaint under section 12 of the Consumer Protection Act, 1986, claiming that he has suffered loss of Rs. 10,00,000/- due to deficiency in service on the part of opposite party and sought direction for release of the truck and that he be permitted to sell the truck in open market and to deposit the outstanding amount in one go.


2. Opposite parties no.1 & 2 in reply pleaded that complainant had been using the vehicle for commercial purpose to earn profit, so, not entitled to maintain the complaint. He does not fall within the definition of ‘consumer’. Further claimed that this Fora has no jurisdiction to try this complaint. They have admitted taking possession of the truck but claimed that it was taken in terms of agreement, due to default committed by the complainant after its surrender. Truck was under Hire Purchase Agreement with them as it was got financed by the complainant from them. They had right to repossess the vehicle in case of committing default in repayment of E.M.I.. Further averred that loan matters are not covered under the Consumer Protection Act. They had disbursed the loan of Rs.7,30,000/-@3,93% per annum repayable in 47 instalments of Rs.18,930/- each, except first instalment of Rs.18,976, starting from 11.7.2005 till 11.5.2009, qua which an agreement dated 10.6.2005 was executed between the parties. On 25.8.2007, complainant was in default of three instalments amounting to Rs. 54,418/-, apart from overdue compensation for belated payment. As they had charge over the vehicle under Hire Purchase Agreement, so, it was handed over by the complainant through his driver peacefully. No forcible possession was taken.


3. Opposite party no.3 vide separate reply claimed that the complaint is false, frivolous, not maintainable against them and they have been unnecessarily dragged to litigation as the complainant has no cause of action against them. However, they admitted sale of the truck to the complainant. They denied having charged Rs.45,000/- as insurance amount for three years from the complainant. Averred that Rs.59,616/- was paid to them by the complainant as margin money of the vehicle. But denied any oral settlement with the complainant that amount shall remain with them and in case of default of payment, would be adjusted against the E.M.I.. No such amount is lying with them. Allegations are false. They never took possession of the vehicle. They simply sold the vehicle to the complainant and allegations that they took possession of the vehicle on 25.8.2007 are false and incorrect.


4. In order to prove their contentions, complainant and opposite party no.3 led their evidence by way of affidavits and documents. Inspite of several opportunities having been granted, opposite parties no.1 & 2 failed to lead any evidence and as such their evidence was closed by this Fora vide order dated 24.3.2009.


5. We have heard the arguments addressed by the ld. counsel for the complainant and opposite party no.3, gone through the file and scanned the documents and other material on record.
6. First grouse of the complainant is against act of the opposite parties no.1 & 2 of taking forcible possession f the vehicle on 24.8.2007, upto which date had paid all the E.M.Is. regularly. In order to understand this aspect and allegations of the complainant, we have to look into agreement in the shape of ‘particulars of vehicle loan’ of the complainant given by the opposite parties no.1 & 2. Ex.C.2 is the copy of the particulars accompanied by Ex.C.1 invoice of opposite party no.3, showing that total price of the vehicle sold to the complainant was Rs.7,34,200/-. As per loan particulars Ex.C.2, Rs.4,200/- was made down payment by the complainant. Hence, loan of Rs.7,30,000/- was granted by opposite parties no.1 & 2 to the complainant. Insurance premium for the 2nd year Rs.18,000/- for third year Rs.15,000/- for fourth year 12,000/- was also added therein while calculating interest amount and E.M.I, all payable in 47 instalments. This document also contains details of all E.M.Is. payable on 11th of each month, commencing from date of loan i.e. on 11.7.2005.


7. Now question is whether in conformity with Hire Purchase Agreement, complainant had paid all instalments upto August 2007, when the truck was repossessed by opposite parties no.1 & 2. This truck under loan hypothecation agreement Ex.C.4 was under lien with the opposite parties no.1 & 2 and they had a charge over the truck. Statement of account Ex.C.3 of opposite parties no.1 & 2 pertaining to account of the complainant clearly reflect that he had not paid all the instalments regularly. As instalments of April 2007 and July 2007 were not at all paid and few instalments prior and subsequent to those months were not paid in time and of the agreed amount of E.M.I.


8. In these circumstances, we feel that opposite parties no.1 & 2 were entitled under the agreement of hypothecation, having lien on the truck, to repossess the same. But complainant claimed that it was forcibly taken by opposite parties no.1 & 2 with the help of musclemen by using force. Such allegations are denied by opposite parties no.1 & 2. They claimed that the truck was surrendered by the complainant through his driver. However, we can not believe this part that truck was surrendered by the complainant through his driver. No doubt, opposite parties no.1 & 2 were empowered under the hypothecation agreement to repossess the truck in case of committing default in payment of EMI by the complainant But before doing so, principles of natural justice, equity and fair conscience require them to issue a notice to the complainant that he had defaulted in payment of EMIs and consequently requiring him to put the truck in their possession or otherwise they will repossess it in accordance with law. But opposite parties had not adhered to such principles of natural justice or fair play by giving warning to the complainant. Repossessing the truck without such notice, in our view, certainly would amount to resorting to unfair trade practice by opposite parties no.1 & 2, despite the fact that they had lien over the vehicle. They infringed the principles of natural justice and fair play by repossessing the truck without any notice. Such act of the opposite parties no.1 & 2, in our view, amounts to mal practice for which they deserve to be penalized and compensation awarded to the complainant. But we can not order return of the truck to the complainant as opposite parties no.1 & 2 had lien thereon and complainant had defaulted in paying EMIs as per agreement.


9. Though complainant has alleged that opposite party no.3 has retained Rs. 59,616/-. But qua this amount, no relief is sought by him. Defence of opposite party no.3 is that the amount was given as margin money. It is contended that such margin money consisted of payment of first insurance premium , temporary registration charges and documentation preparing charges and it is not refundable, nor qua this amount relief is claimed by the complainant. So, we can not conclude and affirm allegations of the complainant that the amount was paid to opposite party no.3 by way of security to pay EMIs in case of any default.


10. Sequel to above discussions, we allow the complaint only against opposite parties no.1 & 2 and for deficiency in service committed by them order to pay compensation of Rs.50,000/- (Rs. Fifty Thousands only) to the complainant for repossessing the vehicle without issuing any notice to the complainant and also to pay litigation cost of Rs.2000/-(Rs. Two Thousands only). Compliance of the order be made within 45 days of the receipt of copy of the order

C.C.No.92/2008

Between

Kalathuru Armugam,
S/o. K. Narayanaswamy,
Hindu, aged 34 years,
9-751, NPR Complex,
Gandla Street, Bhadurpet,
Srikalahasthi – 517 644. …. Complainant

And

1. Autofin Limited,
Rep. by its Authorized Signatory,
140, Prender, Ghast Road,
Secunderabad – 500 003.

2. M.G. Brothers Auto Mobiles Pvt. Ltd.,
Authorized dealer of Tata Motors,
Dharga Mitta, Nellore.

3. The Divisional Manager,
TATA Motors Ltd.,
Bombay House, 24, HOMI Modist,
Mumbai – 400 001. …. Opposite parties

This complaint coming on before us for final hearing on 15.04.2009 and upon perusing the complaint, written version, written arguments and other relevant material papers on record and on hearing Sri G. Ramaiah Pillai, counsel for the complainant and Sri. B. Narahari Reddy, counsel for the opposite parties and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY Sri. M. SUBBARAYUDU NAIDU, MEMBER

ON BEHALF OF THE BENCH

This complaint is filed under Sections 12 and 14 of Consumer Protection Act, 1986 to pass an order in favour of the complainant directing the opposite parties 1 to 3 to refund the repair charges which was levied during the warranty period on Rs.62,434/-; to pay Rs.27,000/- by second opposite party at Rs.1,000/- per day towards taxi charges engaged by the complainant; to replace the vehicle with a new one or to refund the cost of the vehicle which was purchased at price of Rs.3,77,480/- which is having a manufacturing defect by the opposite parties 1 and 3; to pay costs of Rs.2,000/- towards litigation expenses by the opposite parties and to pass such other order or orders as the as the Hon’ble Forum may deem fit and proper in the circumstances of the case.

2. The factual matrix leading to filing of this complaint is set out as here under:
(a) The case of the complainant is that he is a businessman dealing in wholesale groundnuts at Kalahasthi. For his business, he needed a vehicle for purpose of touring, preferably a diesel car. While so, during January, 2007 he came to know through catching advertisement that TATA Motors Indica V-2 Diesel Turbo, a technologically Indica which is specifically designed to ensure environmental compatibility economical particularly trouble free performance, the complainant preferred to go for purchase of the said model and purchased from the first opposite party who is the dealer of opposite party No.2 company for Rs.4,20,000/- including all taxes and taken delivery on 25.01.2007 at Secunderabad (first opposite party). The warranty of 18 months from the date of purchase of vehicle irrespective of distance covered was issued.

The complainant also paid an extra cost of Rs.4,000/- and obtained for further period of 18 months extended warranty in addition to the company warranty from opposite party No.1. After the purchase of the vehicle, it was duly registered with the registering authority at Tirupati bearing No. AP 03 AB 7299. As per the warranty, it permits four free services. The vehicle was given from time to time for check it up purpose. While so, on 31.05.2008 the engine of the said car was seized, it was given for its repairs with job card to the second opposite party who is the authorized dealer of opposite party No.3. Thereafter, it was kept for 27 days in garage and delivered the vehicle on payment of Rs.62,434/- towards replacement of 47 items of spare parts in the vehicle. Though, there is an obligation under the warranty to repair or replace free of charge such parts of the car which are defective, the opposite party No.2 deliberately charged the amount and recovered from the complainant much against the terms of the warranty and delivered the vehicle on 27.06.2008.


(b) In view of the delay in delivering the vehicle after its repairs, the complainant has suffered for traveling without conveyance for 27 days and he was forced to engage a taxi at Rs.1,000/- per day including driver’s batha for purpose of touring, from the vehicle contractor 9/448, Gandla Street, Srikalahasthi by name one Uma on rental basis. Further, the allegation of the complainant in para 7 of the complaint is that defective car was supplied by the first opposite party on 25.01.2007 which failed to give performance which one would expect from a new car. Admittedly the said car developed several problems which necessitated the opposite party No.2 to change several parts in the said car within the warranty period.


It goes undoubtedly that the car must be a old one or the car with manufacturing defect otherwise there is no necessity to replace several parts, i.e., 47 items which costs Rs.62,434/- according to the job card issued by the second opposite party. In this connection, the complainant wanted to test the vehicle by competent authority through the Hon’ble Forum whether the vehicle is having manufacturing defect for which separate petition is filed. It is settled law that the said car which was purchased from the first opposite party must be worthy of its price and serve the purpose for which it is intended. It is further alleged that the car which purchased as a new car, if found subsequently as not motorable with persistent defect, the consumer / (complainant) is entitled for refund of the cost of the price or replacement of the car. Hence, the complainant got issued a legal notice on 11.07.2008 demanding the opposite parties 1 to 3 to refund the costs of the material worth Rs.62,434/- under the job card which were replaced by opposite party No.2 on 31.05.2008 and to pay Rs.27,000/- towards conveyance charges for 27 days which he took on hire basis during the period the vehicle was kept in garage.
There was no response from any of the opposite parties 1 to 3 in this regard nor sent any reply to the above said legal notice and remained unmindful without discharging their liability within the warranty period. There are causes of action to file this complaint before this Forum. This Forum has jurisdiction to entertain this complaint. Hence, the complaint.

3. In response, the third opposite party resisted the complaint by filing written version / objections and the same was adopted by attaching a memo along with written version before this Forum by the first and second opposite parties. The third opposite party while denying the material allegations contained in the complaint in paras 1to 8 of its written version and narrated further in paras 9 to 14 of the written version. In para 9 of the written version filed by the third opposite party that the warranty given to any vehicle is limited to replacing or repairing, free of charge, such parts of the car which in the opinion of the manufacturer company are defective and are brought to the dealers within the warranty period.

The further condition is that the warranty shall not apply if the car or any part thereof is repaired or altered otherwise than in accordance with the company’s standard repair procedure or by any person other than the company sales or service establishment authorized dealers, service centre or service points in anyway. It is further submitted that the complainant has availed all the free services. After the free services, the complaint has come for some service but the complainant did not come for regular services after the vehicle reaches 42,124 kms, as required. Later on, the complainant has got serviced the vehicle twice when the meter recorded 60,611 kms and 64,380 kms respectively, however the complainant did not give the vehicle for any servicing at any time thereafter. As the vehicle was not serviced within time, necessary lubricants such as coolant, engine oil etc., were not replaced within time and as a result the vehicle was run without adequate or required lubricants resulting in the seizure of the engine.

The complainant even by observing the defect and in not bringing the vehicle for service within the time as was required, had indeed given the vehicle for major repairs. The coolant was also not changed within time and at the time of giving the vehicle for repairing work, the complainant had agreed for payment of the estimated bill amount and the same was written and signed by the complainant in the job card. It is stated that after repairing works being done on the vehicle, the complainant got satisfied with the vehicle and took delivery of the vehicle by signing in the job card. It is submitted that after using the vehicle for considerable time, the complainant has issued the above notice which is an afterthought and has been issued to get wrongful gain.

It is further submitted that there is neither any prima facie case being made out by the complainant against the opposite parties as to ‘deficiency of service’ nor any case of ‘consumer dispute’, therefore the complainant is not entitled for any relief much less the relief for refund of cost of repairing charges or conveyance charges and / or cost of the vehicle etc. It is further submitted that the complainant is aware of that he is not entitled for any refund of the repair charges or conveyance charges as allegedly incurred, indeed he has filed the above complaint with an ulterior motive to harass the opposite parties including this answering opposite party by making some frivolous allegations of the vehicle being an old one and with manufacturing defects etc., which are nothing but vexatious, concocted and an abuse of process of law.

It is again further submitted that there is no cause of action for the complainant to file the instant complaint. The alleged cause of action is invented by the complainant for the purpose of harassing the opposite parties. This Hon’ble Forum has no jurisdiction to entertain the above complaint as there are no merits made there in the complaint. It is prayed that the complainant is not entitled for any relief much less the reliefs prayed for and the instant complaint is required to be dismissed with costs.


4. In support of the averments made in the complaint the complainant filed his affidavit and also filed 7 documents which are marked as Exs.A1 to A7. Ex.A1 is the leaflet containing particulars of Indica V2 Diesel car, its main features and information; Ex.A2 is the extended warranty of the said Diesel Indica V2 car; Ex.A3 is the tax invoice dated 29.01.2007 and its terms and conditions; Ex.A4 is the original traveler receipt dated 27.06.08 issued by K. Uma, Kalahasthi; Ex.A5 is the tax invoice dated 27.06.2008 issued by the second opposite party relating to the repairs of the car of 47 items of spares and its cost totaling to Rs.62,434/-; Ex.A6 is the office copy of legal notice dated 11.07.2008 issued by the complainant’s advocate to the second opposite party and copies marked to the remaining opposite parties; Ex.A7 is the Photostat copy of telegram issued by the complainant’s advocate to the second opposite party.


5. In support of the averments made in the written version / objections, the opposite parties filed four documents which are marked as Ex.B1 to Ex.B4. Ex.B1 is the office copy of reply notice dated 25.08.2008 issued by the learned counsel for the opposite parties to the complainant’s advocate; Ex.B2 is the acknowledgement from the counsel for the complainant with regard to the above said reply notice; Ex.B3 is the service history calls of the vehicle bearing No. AP 03 AB 7299 commencing from 21.02.2007; Ex.B4 is the job card issued by the second opposite party dated 31.05.2008 and an undertaking given by the complainant for payment of about Rs.60,000/- towards major repairs done in the said car in the garage.


6. Both the learned counsels have filed their respective written arguments in support of their case. The complainant filed his affidavit as evidence. No affidavit is found in the record on behalf of the opposite parties.


7. Basing on the pleadings and the documentary evidence, the points that arise for determination are:-
1 Whether there is any deficiency in service on the part of the opposite parties
towards the complainant?
3. Whether the complainant is entitled for the reliefs as prayed, if so to what
extent?
3. To what result?


8. Point No.1:- (a) There is no dispute about the purchase of Tata Indica V2, Diesel Turbo car and subsequent developments raised in the complaint as far as payment of Rs.62,434/- on spare parts of 47 items are concerned as alleged in it. The point for determination in this consumer case is that whether the complainant has clearly made out his case and proved about the allegations contained in the complaint. The learned counsel for the complainant Sri G. Ramaiah Pillai has vehemently argued that the facts which are contained in the complaint are again reiterated in the written arguments referring the documents filed by him in support of his case.

He further argued that the second opposite party deliberately charged amount of Rs.62,434/- and recovered from the complainant much against the warranty conditions and the said car was delivered on 27.06.2008 on payment of amount under compelling circumstances as he needed the vehicle. He also further argued that as the above said car was kept for 27 days in workshop, one can imagine to what extent the vehicle was damaged and the complainant was also put to much inconvenience for the want of car for those 27 days for which he was forced to engage a private vehicle on hire basis. This fact is supported by Ex.A4. The above said learned counsel further contended that the above said car should be an old one or with manufacturing defect which developed several problems and necessitated the opposite party No.2 to replace 47 items within warranty period. So, the opposite parties are liable to pay Rs.62,434/- to the complainant towards replacement of 47 spare parts in new vehicle which is within the warranty period and to award costs and compensation. The complaint may be allowed with costs.

(b) The learned counsel for the opposite parties Sri B. Narahari Reddy has also vehemently argued that the complaint is not maintainable as the prayer is for refund of repair charges for the which the civil court alone has got the jurisdiction to entertain the petition and on this ground alone the above complaint is liable to be dismissed. He further argued that he has clearly mentioned all the points in para 3 of written arguments that the warranty given any vehicle is a limited to replace or repairing free of charges which parts of the vehicle which in the opinion the company or defective brought to the dealer or authorized agent with in the warranty period. The averments contained in the written version are again repeated in para 3 of written arguments with regard to the availing service for the car from time to time. He also further argued that after repair, the complainant was satisfied with the service of the second opposite party and took delivery of the car by signing in the job card.

The complainant did not raise any objection or pleaded before issuing notice to the opposite parties about entitlement of repair charges as it can be treated as free in view of additional warranty. With his own accord and satisfaction, after undertaking to pay (as paid service), it is mentioned in the job card because major and valuable parts are replace with the consent of the complainant. There is no deficiency in service on the part of the opposite parties. The learned counsel further contended that it cannot be found that there any manufacturing defects after the car ran for more than 1 lakh kms. It is clearly mentioned in Ex.B3 i.e., service history details of the car that the complainant accepted to pay the repair charges of his car. It is clearly supported by Ex.B4. Finally the learned counsel for the opposite parties prayed for dismissal of the complaint with costs.

(c ) On perusal of the entire record, it clearly goes to show that the above said Tata Indica V2 ran more than 1 lakh kms within a short period (25.01.2007 to 11.08.2008) approximately, as it is evident from Ex.B3 document, service history details. It contains details of free services as well as paid services. The complainant has not filed the warranty – terms and conditions applicability to the vehicle for the reasons best known to him. But he filed extended warranty slip, i.e., Ex.A2. It does not contain any terms and conditions as such. Ex.A2 is related to the policy. It is true that there is an exchange of legal notices between the parties before filing of this complaint. In fact, the complainant has availed the service of second opposite party after filing of this complaint before this Hon’ble Forum on 06.10.2008. To determine this consumer case, it more appropriate and relevant to look into the contents of Ex.B3, ie., service history details of the car whether it is manufacturing defect or rough use of the vehicle by the complainant. Moreover Ex.B4 is the vital document which clearly signifies that it is a paid service and the complainant has clearly accepted for payment of repairs because the car is seized for want of repairs and complainant personally estimated approximate bill amount to about Rs.60,000/- and signed in Ex.B4. When such is the state of affairs relating to the said car, how the complainant raised the fact of manufacturing defect in the car after running of more than 1 lakh kms. He availed all the free services for his car within 5 months after purchase and noting down the kms 21451 and further paid service commences from 24.08.2007 to 11.08.2008. The complainant did not turn up for service of his car from 27.12.2007 and on that date the speedometer shown 64383 kms until 27.06.2008- 95981 kms. The details which are contained in Ex.B3 clearly goes to show that the complainant has not got proper service at appropriate time and thereby the vehicle was seized for want of repairs and thereby the complainant himself acknowledged the liability to pay around Rs.60,000/- towards repairs of the same was noted in Ex.B4. It established the fact that the said car was extensively used and that caused damage to the vital parts of the vehicle and that necessitated the change of more valuable spare parts for making repairs of the vehicle. Subsequently, the complainant cannot raise the plea of manufacturing defect at this stage. It is clearly evident that the complainant has clearly mentioned in Ex.B4 for payment of cost of repair of the vehicle. One cannot blow hot and cold in the same breath. While accepting for the payment of repair amount according to Ex.B4 to the second opposite party, the complainant cannot further allege that claiming of refund of the amount once again from the opposite parties. The term ‘deficiency’ is defined in Section 2(1)(g) as follows: ‘deficiency’ means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

In its decision in Lucknow Development Authority Vs. M.K. Gupta (1994) I SCC 243, the Supreme Court examined the scope of the term ‘service’ in the context of a consumer protection legislation. The Supreme Court in its decision in Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines (2000) I SCC 66 had the opportunity to explain the nature of the test for ascertaining deficiency in service. According to Webster’s New Collegiate Dictionary defect means deficiency. Though both the words defect and deficiency mean almost the same, the Consumer Protection Act gives two distinct definitions and the words must be used and interpreted as per the definitions given in the said Act of 1986. Further the word ‘defect’ under Consumer law is used in relation to goods and the word ‘deficiency’ in relation to services.


In our opinion, after scrutinizing the facts, circumstances of the case and material documents filed before us, it is crystal clear that the complainant has not proved his case and miserably failed in his attempt. Man may lie but documents will not lie. He did not approach this Forum with all clear fairness on his part. The complainant did not file the warranty or additional warranty covering 18 months + 18 months, in total 3 years before this Hon’ble Forum to read the contents of it (terms and conditions are applying) and verify them to assess the liability of the opposite parties for the reasons best known to the complainant. If at all there is another four services are free in view of the additional warranty, what is the necessity for the complainant to agree for payment of the charges for repair as per Ex.B4,i.e., job card issued by the 2nd opposite party. The complainant voluntarily agreed to pay approximate expenses of Rs.60,000/- as per Ex.B4. Further he cannot raise for refund of it and he is stopped from claiming anything in view of major repair and most valuable parts are replaced as consented by him to pay for it. There are no merits in this consumer case. There is no deficiency in service on the part of the opposite parties towards the complainant. This point is answered accordingly.


9. Point No.2:- In view of the above discussion in Point No.1, it is crystal clear that the complainant has not established and proved his case to claim any reliefs sought for in the complaint. A complaint can be filed under Consumer Protection Act in respect of unsatisfactory service. If the Forum is convinced that any of the allegations contained in the complaint about service are proved, it can provide any of the applicable types of remedy specified in Section 14. The

consumer / complainant has to prove deficiency of service. Here, there is absolutely no deficiency in service on the part of the opposite parties. So, the complainant is not entitled to get any reliefs prayed for in the complaint. This point is answered accordingly.
9. Point No.3:- In the result, the complaint of the complainant is dismissed without costs.

Ch.S.Jithender,

413/A, Budha Nagar,

Uppal Depot,

R.R.District. …Complainant/Petitioner



And

1. The Malik Cars,

3-6-422 & 422/A,

Street No.3, Himayatnagar,

Hyderabad.

2. The TATA Motors

Pune, Maharastra. ….. Defendants/Opposite Parties


O R D E R



1. This is a Complaint filed by the Complainant under section 12 of C.P. Act, 1986, seeking a direction against the opposite parties to pay back the cost of the vehicle of Rs.9,07,653/- +D.D. charges of Rs.300/-, to pay back the interest charged by the State Bank of Hyderabad, to return back the extra fittings of the Car, to pay him the compensation and for costs.



2. The case of the complainant as set out in the complaint in brief is that he purchased a TATA Safari on 26-07-2007 from opposite parties by paying Rs.3,00,000/- on 21-07-2007, Rs.6,00,000/- on 26-07-2007 through a D.D. and Rs.7,653/- on 26-07-2007.



3. The sales men told him in the beginning that the above price includes the extended warranty charges but, after paying the Rs.3,00,000/- + D.D. charges on 21-07-2007, the sales men told him that the price was exclusive of extended warranty charges.



4. On 26-07-2007 he received the vehicle as he paid the balance amount. On the same day he found the head lights of the vehicle not functioning. As per the advice of the sales men, he contacted the help line of TATA, who came to the spot two hours later to Rasoolpura Cross roads, and from there to the shop, where he had done extra fittings to the car. The help line people struggled for one hour and decided to take the vehicle to the workshop at Towlichowki and produced the vehicle on the next day at Himayatnagar Show Room. While, checking the fuse box under the bonnet of the Car, the Technicians climbed on to the car over the crash guard and caused damage to the front bumper.



5. While so, on 02-08-2007, the front left door could not be locked as it was opening while in motion. He called for the Mechanic from the opposite party No.1, who took the vehicle to the workshop and delivered back on the next day.



6. On 07-08-2007 while he was returning from Srisailam in the said car, the A.C stopped functioning and he was forced to travel without AC by opening the window glasses. On the next day he issued a notice to opposite parties demanding a new vehicle or in the alternative the cost of the vehicle. On 11-08-2007 the opposite parties inspected his car and noted non functioning of AC, rubbing of back door to the back bumper, damages on the body of the car, faulted AC winds, faulted speakers, non fixture of the floor carpet in a proper manner, missing of some nobs, clip opening, un even shape of the middle seat, gear nob not in a correct position and hard working of the clutch. They took the vehicle to the workshop along with the decorative items. However, there is no response from the opposite parties even after his notice. Hence the complaint.



7. Opposite party No.1 in the counter denied various allegations made in the complaint specifically. He denied that the cost of the vehicle included the extended warranty charges. There was no misleading information from their sales men. It is denied that the head lights of the vehicle were not functioning. It was due to the mishandling of the operating system of the vehicle that the head lights did not come for some time. However, the same was explained and was rectified. The vehicle could not be attended on the road and as such the same was taken to the workshop. It is denied that the crash guard of car was damaged during the checking of the fuse box. It is also denied that the front door refused to lock in motion. It could be due to the negligence or handling of the vehicle by a person. However, to satisfy the complainant they replaced a new lock without collecting any charges. The AC was also rectified.



8. It is denied that the sales executives of opposite party No.2 inspected the car and found the defects as alleged in the complaint. A reply was issued to the notice of the complainant. The complainant was informed over phone about the rectification of the defects, but he himself did not take away the vehicle.



9. There is no deficiency in service or defect in the vehicle. The complainant himself has avoided taking of the vehicle from the workshop, for which, he is liable to pay charges at Rs.200/- per day. Finally, the opposite party No.1 prayed for dismissal of the complaint.



10. Opposite party No.2 filed a separate counter. It is pleaded that the complainant failed to furnish any proof to show that the vehicle was having any manufacturing defects. It did not suffer from any such defects. If there were to be any such manufacturing defects, it would not have run for 1233 Kms. There cannot be any order for replacement of the vehicle or refund of the price except in a case where there is the manufacturing defect.



11. It is further pleaded that opposite party No.1 through his letters dated 23-08-2007 and 13-11-2007 informed the complainant that the problems pointed out by him were attended and the repairs were carried out. The vehicle was made road worthy and complainant was requested to take delivery of the vehicle. But he refused to do so. There was no deficiency in service. There is no pending problem with vehicle and as such there can not be any complaint.



12. Opposite party No.2 also advanced a case similar to the one as done by opposite party No.1 with regard to the facts of the case. Finally, opposite party No.2 also prayed for dismissal of the complaint with exemplary costs.


13. The points that arise for consideration are:-

1. Whether there is any deficiency in service on the part of the opposite parties? and if so, whether the complainant is entitled for refund of the cost of the vehicle along with compensation etc.,

2. To what relief?


14. Point No.1:- To substantiate his case, the complainant has chosen to file his evidence affidavit and relied on Exs.A1 and A6. On the other hand, the opposite parties also filed the evidence affidavits and relied on Exs.B1 and B2. Both sides filed written arguments and also advanced oral arguments.


15. As seen from the allegations raised in the complaint itself, it is clear that there were some short comings in the vehicle initially, such as head lights not functioning, left door refused to lock and non functioning of AC. Admittedly, the helpline people of opposite party attended to all the repairs free of cost.

The contention of the complainant is that he suffered a lot both mentally and physically due to the failure of AC functioning on his way back to Hyderabad from Srisailam. It is unfortunate that the AC failed on the way. It is only a mechanical failure and cannot be termed as manufacturing defect. With regard to the non functioning of the head lights, the opposite parties contended that the complainant had no knowledge of operation of the head light switches. It is the case of the opposite parties that the operating system of the vehicle was mishandled, which resulted in the failure of the head lights. As already noted, the same was already rectified.


16. The complainant also complained that the crash guard of the car was damaged and also the front bumper during the period of repair but there is no evidence to substantiate the same.


17. The next contention of the complainant is that the front door refused to lock in motion. According to the opposite parties, the driver of the vehicle might have opened the lock by pulling the hand break. According to them, in such a condition, the door would refuse to lock. Any way, admittedly, the opposite parties replaced the lock free of cost.


18. With regard to the failure of the AC on the way also has been rectified by the opposite party in their workshop. Thus all the defects have been rectified by the opposite parties free of cost.


19. During the pendency of the complaint this Forum was pleased to direct the Road Transport authority for testing the vehicle by an Automobile Engineer. Accordingly, the RTA, Hyderabad at appointed one Motor Vehicle Inspector for examining and testing the vehicle, which remainded with the opposite parties, as the complainant could not take the vehicle with him even after effecting repairs.

The M.V. Inspector, who inspected the vehicle in question in the presence of the complainant and the representative of opposite party No.1, submitted his report to the effect that the vehicle was in good condition without any defects that the defects complained by the complainant had occurred incidentally and that they were rectified by the opposite party No.1 under warranty. Thus, this report dated12-02-2009 of the M.V. Inspector makes it clear that all the defects have been rectified and that the vehicle has been in good running condition without any defects.



20. The opposite parties contended that the complainant failed to take delivery of the vehicle inspite of their notices under Exs.B1 and B2. These two are the registered postal covers which have been taken delivery by the complainant. So, no deficiency in service can be attributed against the opposite parties.



21. As rightly contended on behalf of the opposite parties, there have been catena on decisions to the effect that there cannot be refund of the cost of the good, if there are no manufacturing defects. In a decision reported in III 1994 CPR Page 395 in M/s. TATA LOCIMITIVE & Co., Ltd., Vs. M.Moosa, the National Commission clearly held that if the defects are rectified, the claim for refund of the price of the car should not be allowed. In another decision reported in IV-2006 SCC Page No644 Maruti Udyog Ltd., Vs. Susil kumar Gogtra, the APEX Court held that a direction for replacement of the car is not justified. It was further held that the defective part alone could be replaced. Similar views were taken by the APEX Court in II-2004 SCC Page No.278 in Jose Philip Mampillil Vs. Premier Automobiles Ltd., and another.



22. As a matter of fact the complainant failed to make out that there was any manufacturing defect in the vehicle. So he is not entitled for refund of the price of the vehicle. The complainant failed to take out any expert concerning the automobiles to prove that there were any manufacturing defects or technical defects in the vehicle. In fact the M.V. Inspector who was appointed as the Commissioner, inspected the vehicle and found it to be in good condition without any defects.

The minor problems which occurred were already attended to by opposite party No.1 free of cost. The complainant instead of taking delivery of the vehicle has unnecessarily come to this Forum. So, he is not entitled for any of the reliefs claimed. In other words the complainant miserably failed to make out that there was deficiency in service on the part of the opposite parties. So, he can not ask for any compensation. This point is answered against the complainant.

The complainant availed a vehicle loan of Rs.532000/- for purchase of a Tata Sumo Reg No.KL 9 N4253. Immediately after availing the loan, opposite party issued a 45 installments payment chart to the complainant. Complainant had remitted the entire loan amount specified in loan agreement and as stated in the payment chart. After the due payment of the full loan amount the complainant approached the opposite party demanding loan closure certificate and No Objection Certificate. The opposite party has given totally irresponsible false replies.

At long last the opposite party stated that there is some balance outstanding from the complainant i.e installment of 24/11/2006. The allegation is not true because there is no outstanding liability pending with the opposite party as on 24/11/2006 as alleged. Complainant through DD No.582550 of Canara Bank Branch, Sreekrishnapuram has already remitted the installment of 24/12/06 and that amount was duly collected by the opposite party. Complainant issued lawyer notice against the opposite party on 18/3/08 for which opposite party has not replied. So the complainant

filed this complaint seeking an order directing the opposite party to pay an amount of Rs.60,000/- as compensation for mental agony and financial stress suffered by the complainant and hand over the No Objection Certificate to the complainant.



2. Opposite party has not appeared before the forum though notice was served. Hence set exparte.



3. Complainant filed affidavit and marked documents as Exts.A1 to A5.



4. Matter was heard.



5. Points to be considered are

1.

Whether there is any deficiency of service on the part of opposite party?
2.

If so, what is the relief and cost?



6. Points 1 & 2: We perused the relevant documents on record. The grievance of the complainant is that even though he paid all the installments correctly he did not get back the No Objection Certificate and other documents from the opposite party. In support of his claim, the complainant produced payment receipts and photocopies of Demand Draft and is marked Ext.A3 series. From the evidence on record, it can be seen that the complainant has paid the entire loan amount. Opposite party has claimed an amount of Rs.45,801/- as due to the opposite party by Ext.A1 letter. But the opposite party has not appeared before the forum to prove the same. Complainant has stated in affidavit that the whole loan amount was repaid and there is nothing outstanding. There is no counter evidence to that one tendered by the complainant. The act of the opposite party in not issuing the No Objection Certificate even after payment of the whole amount amounts to deficiency of service.


7. In the result complaint allowed. Opposite party is directed to handover No Objection Certificate to the complainant along with Rs.5,000/- (Rupees Five thousand only)as compensation and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings within one month from the date of communication of the order failing which the whole amount shall carry 9% interest from the date of order till realisation.

Dr.Narinder Singh son of S.Kirpal Singh, resident of 167-L, Model Town, Ludhiana.

Versus

1.TATA Motors, Passenger Car Business Unit, 8th Floor, Center No.1, World Trade Centre Caffe Parade, Mumbai-400005 through its Manager Director.

2.Garyson Motors Pvt. Ltd., Corporate Office; Sherpur Chowk, G.T.Road, Ludhiana its Managing Director.


Complainant is a practicing doctor, purchased a TATA Indica DLG Turbo-III Car from OP-1 through its dealer OP2 on 14.10.2007. OP sold the car on condition of giving discount of Rs.18000/- in cash and agreed to provide free accessories such like foot-mat, Mud-Flap and body cover and Tubeless tyres. On the date of delivery of the car Mr.Sandeep Berry, executive of OP2 had got silver coloured car ready and mud-flap were kept inside the car without fitting and on query by the complainant for not fitting mud-flap, OP2 said that it being Sunday mechanic was not available. They issued delivery receipt dated 14.10.2007 but did not provide sale invoice, sale letter owner’s manual and service book and other documents necessary for registration of the vehicle, also body cover of the car was not given on the pretext that they were out of stock and would be given alongwith the documents of the vehicle. Subsequently, on checking found that tubeless tyres were not tubeless as promised. Visited OP demanded documents of the vehicles to enable its registration, but OP demanded Rs.2000/- in cash for delivery thereof. Subsequently, when compelled, OP delivered body cover of the car, but remained adamant not to pay discount of amount of Rs.2000/-. Consequently on account of such tactics adopted by the OP, got served legal notice dated 26.11.2007, calling upon them to deliver original, sale letter, service book and other papers sale letter owner’s manual and service book.

OP gave reply dated 11.1.2.2007 demanding Rs.1600/- to deliver the documents. Consequently, complainant in his complaint under section 12 of the Consumer Protection Act, 1986 has alleged that OP has caused harassment and mental agony to him, as he could not use his car for five months due to want of documents and consequently not getting it registered with Motor licensing authority. It is also pertinent to say that due to unbecoming of the OP, he had to face police action also. Therefore has sought direction against the OP to release documents of the vehicle including sale invoice, to give cash discount as agreed and also Rs.50000/- compensation for harassment.

2. OP1 in reply pleaded that entire transaction was with OP2, there is no allegations against them qua negligence, they have no role to play in the dispute. They averred that complaint is not maintainable. Further complainant had taken delivery of the vehicle after proper inspection and satisfaction. That the complainant demands are beyond the warranty terms.

3. OP2 vide his separate reply have also controverted allegations of the complainant that the complaint is not maintainable and the complainant is abusing the process of the Forum, as he is taking benefits of his own wrongs. He has filed the complaint to avoid liability of Rs.1600/- due from him. When that amount was demanded from the complainant he abused the employees of OP2. Thus, denied that they had agreed to provide the discount of Rs.18000/- on the sold vehicle to the complainant. The discount agreed was of Rs.15000/- and in addition had agreed to provide free accessories such as foot-mat, mud-flap and body cover. In addition to price of the car complainant was also required to pay Rs.600/- for temporary registration certificate and temporary number.

Discount of Rs.15000/- was given to the complainant and adjusted against the price of the car. A sum of Rs.1600/- is still due from the complainant and all accessories were provided at the time of delivery of the vehicle. Complainant called to collect the documents including sale invoice, body cover and also to pay the outstanding amount of Rs.1600/-, but he lingered the matter on one pretext or the other, then on 23.11.2007 complainant requested them to collect Rs.1600/- from his Nursing home, so then Tarun Kumar and Sandeep Berry, Sales Executives of OP.2 went to Nursing home of the complainant along with Body cover and sale invoice and documents. But the complainant misbehaved with the employees and refused to pay the outstanding amount of Rs.1600/-, he snatched body cover from them and made a complaint with Police station Division no.3, Ludhiana. But the matter was settled. The complainant agreed to pay the outstanding amount of Rs.1600/- and thereafter OP2 was to give the sale invoice, owners manual and service booklet. The notice dated 26.11.2007 of the complaint was replied. No discount of Rs.2000/- was ever agreed and the complainant has filed the complaint on false allegations.

4. Both the parties adduced their respective evidence by way of affidavits and documents and stood heard through their respective counsels. We have also gone through the record carefully.

5. Vide this Forum order dated 17.07.2008, OP2 delivered invoice and service book and other documents relating to the sale of the car to the complainant. Therefore, this prayer of the complainant stands met after our intervention.

6. The question which probably brought parties to the blows taking controversial stand is what amount of discount on sale of car was offered by the OP to the complainant. Complainant claims this discount was Rs.18000/-whereas OP has given discount cash of Rs.16000/- only. It is for such reason complainant says that out of discount of Rs.18000/-, Rs.16000/- was adjusted by OP against sale of vehicle and balance of Rs.2000/- was agreed to be paid subsequently which they never paid.

7. Qua this aspect of allegations of the complainant we have on record his affidavit Ex.CW1/A stating that the vehicle was delivered by the OP2 by giving delivery receipt Vide Ex.C4 dated 14.10.2007. Subsequently OP had properly issued sale invoice Ex.C7 dated 26.10.2007 therein OP have mentioned dealer price Rs.356802/-and given discount of Rs.14232.89. Total cost of the car recorded in the invoice is Rs.385390/- exclusive of VAT of Rs.42821/-. The total cost is mentioned after deducting discount of Rs.14232.89. This detail invoice was given by OP2 to the complainant after our intervention by passing order on 17.7.2008.

8. However, when the complainant agitated grievance by serving legal notice Ex.C9 dated 26.11.2007 to the OP stating that they have neither received sale invoice nor Owner’s manual service booklet and till date OP has not delivered the same to him. In response OP answered the notice vide reply Ex.C6 dated 11.12.2007. It is admitted in para.2 of the notice by OP2 that total price of the vehicle was Rs.400390/- and Rs.600/- was payable towards temporary number and number plate. Out of this price, Rs.15000/- was given discount in addition to providing free accessories. After adjustment of the amount, a sum of Rs.1600/- is still due. The complainant was advised to receive the documents including the invoice on payment of balance of Rs.1600/-.

9. It is in the aforesaid backdrop matter for consideration whether discount was of Rs.18000/- or 15000/- or Rs.14232.89 as recorded in invoice Ex.C7. Had the discount amount of Rs.14232.89 as referred in Ex.C7, then OP2, would not have stated in reply of the notice that the discount was given for Rs.15000/- only. OP2 in their written reply has specifically pleaded in para no.3 that complainant agreed to pay out standing amount of Rs.1600/- and then they will provide documents of the vehicle to him. That agreement, since then, has not seen light of the day and is withheld.

10. Invoice Ex.C7 was required to be prepared on 14.10.2007 when the vehicle was delivered and sold to the complainant. But it bears date of 26.07.2007. So, apparent those entries in invoice were mentioned by the OP to show laterin discount of Rs.14232.89 only. Though himself admitted discount of Rs.15000/-. It is pertinent to note that price of the car sold by the OP2 to the complainant in their price list Ex.C1 is shown Rs.400390/-. After discount of Rs.15000/- this price comes to Rs.385390/- which is shown as price of said car. Probably OP.2 wanted to play trick with the complainant and consequently for such reason failed to deliver invoice in his favour at the time of delivery of the vehicle. So, we have no reason to disbelieve version of the complainant that discount of Rs.18000/- was agreed to be given by OP2.

11. Thought OP2 have shown Rs.1600/- as due from the complainant in their statement, copy of which is Ex.R1. But when discount amount was of Rs.18000/- instead of Rs.15000/- as shown. Hence, there is no question of any balance due from the complainant to OP2.

12. The complainant has also suffered harassment when he was compelled to file complaint against OP for not giving documents of the vehicle necessary to get it registered. He must have faced inconvenience due to non-supply of such necessary documents by OP2 to the complainant. Therefore, it is a clear cut case of harassment wherein OP2 has failed by not delivering documents to the complainant.

13. As such it is apparent that nothing is due from the complainant qua price of the car and OP2 resorted to unfair trade practice by withholding the documents of the complainant, causing harassment to him. Therefore we allow this complaint and as a result thereof direct OP2 pay compensation of Rs.10000/- and litigation cost of Rs.2000/- to the complainant. Order be complied within 45 days from the supply of free copy of this order.

Shri Suresh Kumar S/O late Shri Roop Dass,

R/O Village Kuwala, P.O. Bhareri,

Tehsil Kumarsain, District Shimla, H.P.







… Complainant.

Versus





1. The Sikand & Company (Tata Motors)

Commercial Vehicle Dealer,

Through its Proprietor/Manager Director,

Chambaghat, Solan, District Solan, H.P.


2. The Area Service Manager,

Tata Motors Ltd.

Area Service Office,

1st Floor, SCO, 170-171-172,

Sector-17C, Chandigarh.

…Opposite Parties

O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant by invoking the provisions of Section 12 of the Consumer Protection Act, 1986, against the OP. The complainant avers that, on, 30.05.2006, he purchased a vehicle Tata Model SFC 709 Tipper bearing registration No.HP-63-1975, from the OPs for a consideration of Rs.7.30 lacs. He avers that after putting the aforesaid vehicle on road, some major as well, as, minor defects were noticed during the existence of warranty, which after carrying repairs, by the OPs, are still persisting.

The complainant further proceeded to aver that the defects so erupted during the warranty period, as detailed in paragraph 5(c) of the complaint, could not be rectified by the OPs, after repeated repairs, hence, appears second hand vehicle. He further avers that legal notice dated 25.12.2006 was also issued to the OPs calling upon them to either refund the margin money amounting to Rs.89,000/- along with interest, or to replace the defective vehicle, with a new one, which also fell on deaf ears. It is averred that since the defects in the vehicle has erupted during the existence of the warranty period, the OPs are under legal obligation to carry out the repairs. Hence, this complaint averring deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in his favour.

2. The OP No.1, in its written version, to the complaint, raised preliminary objections vis-à-vis suppression of material facts, status of the complainant as a consumer etc. On merits, it is admitted that the vehicle was sold to the complainant against margin money of Rs.89,000/-, who got it financed and all necessary documents, i.e. sale letters and bills etc. were handed over to the complainant. It is contended that the complainant did not produce the vehicle for regular service before the OP No.1, hence, the defects if any, occurred in the vehicle, was, due to negligence of the complainant. It is contended that a Local Commissioner was appointed by this Forum to inspect the vehicle and as per the report of the Local Commissioner, some minor defects were found, which were due to the negligent handling of the vehicle by the complainant. Hence, it is contended that there is no question of selling second hand vehicle to the complainant or its replacement by the OPs. Hence, it is denied that there is any deficiency in service on the part of the OPs.

3. Thereafter, the parties led evidence by way of documents and affidavits in support of their respective rival contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The vehicle purchased by the complainant from the OPs, suffered certain defects during the currency of the warranty period, hence, the complainant has sought a direction that OPs be directed to rectify the defects or replace the old vehicle with a new one. Even though, the OPs do not deny the fact that the defects as may have developed in the vehicle, during the currency of the warranty period, as issued by it qua the vehicle purchased by him, from the OPs, yet, the OPs contends that the complainant having only once got the defect as had developed in the vehicle rectified from an authorized workshop of the OP under Annexure-B and had thereafter proceeded to rectify the defects at workshop other, than, the authorized workshops of the OPs, hence, the defects subsequent to the defects as were rectified in the vehicle under Annexure-B, are the result of mishandling of the vehicle, as also, concomitantly the amounts expended for rectifying the said defects, are not indemnify-able to him, by the OPs, as, the warranty does neither extend to nor does it legitimize the act of the complainant in getting the defects rectified from a workshop other than, the, workshop of the OPs.

6. The above stand as canvassed in the reply of the OPs, has been supported by an affidavit. The complainant does not repudiate the fact as disclosed in the affidavit corroborating the contention on strength whereof exculpation of its liability is sought. The obvious conclusion which ensues from the above discussion, is, that the defects as had developed in the vehicle are hence, attributable to the mishandling of the vehicle, on the part of the mechanics, at, the unauthorized workshops of the OPs, therefore, the OPs, cannot be accordingly be directed either to rectify the defects or to replace the defective vehicle with a new one as prayed in the complaint.

7. The safeguard of a warranty is extendable only in case the vehicle as, and, when, it develop defects during the currency of the warranty, is, brought for the rectification of such defects, before, the authorized workshops of the OPs, and the ineptitude of mechanics their having caused the defects. The above necessity of its being repaired at the authorized workshop of the OPs, is, to obviate mishandling by those mechanics whose ineptitude may aggravate or may cause a fault in the vehicle. As a consequence, for, such ineptitude, of, mechanics of, unauthorized workshops of the OPs, and their ineptitude having caused the defect, the warranty cannot be enforced against the OPs, hence, the complaint being without merit, is liable to be dismissed.

Basavaraju s/o. late Kariyanna,

Aged about 50 years,

Residing at Kadabettanahalli, Complainant

Gubbi taluk, Chelur hobli,

Tumkur district

(By advocate Sri.Jayarangappa)



AND



1. Tata Motors Ltd,

Tata Motors Finance,

Bezzola complex,

1st floor, V.N.Purv Marg,

Chembur, Mumbai-400071 Opposite parties


2. City cars, DMA TATA Finance Ltd,

1st Floor, Byrappa complex,

Opposite Stadium Circle,

B.H.Road, Tumkur




ORDER





2. Through this complaint, the complainant prays for an order against the Opposite Parties (hereinafter called as the OPs for short) to award compensation for the loss of vehicle at Rs.3,00,000/-; mental shock and agony at Rs.2,00,000/- and also a direction to return 20 blank cheques issued to 1st OP alongwith interest at 9% per annum together with costs and for such other reliefs.



3. The facts given rise to institute the complaint may be summarized as thus:

It is contended that, the complainant has entered into an agreement with the 1st OP to purchase a tempo goods vehicle from the TATA finance for personal use on loan basis vide agreement No.HPA No.CVH 937696 dated 17-4-2006. As per the terms of the agreement, the complainant has made a down payment of Rs.78,573/- to the 1st OP and agreed to pay Rs.11,550/- on 21-5-2006 and rest of the balance in monthly instalments at the rate of Rs.11,700/- for 47 months including the installment paid on 21-5-06. It is further contended that, after completion of all the formalities, the OP has delivered the possession of the vehicle bearing Rs.No.KA-06-A-8853 to the complainant. The complainant used for the vehicle for commercial purpose and use to earn. It is alleged that, out of the earning, the complainant used to repay the monthly installments as agreed to the 1st OP.


It is further contended that, the complainant has paid a sum of Rs.93,600/- through post office S.B.A/c.No.541714 to the 1st OP and further paid Rs.1,33,020/- to the 2nd OP, who is authorised agent collect the premium amount from the complainant. The 2nd OP has issued receipts for the same. It is further contended that, the complainant has also made a down payment of Rs.78,573/- to the 1st OP as on the date of agreement. The 1st OP has issued the list of monthly installments to be paid on the date of agreement itself. The complainant has paid the premium amounts from the date of purchase of the vehicle i.e. 17-4-2006 till 17-11-2007 without any break or default.



4. It is further contended that, on 15-1-2008 the 1st OP has issued a legal notice to the complainant stating that, the complainant has become a defaulter to the tune of Rs.57,506-50 including other charges. Before issue of the notice, the 1st OP has seized the vehicle on 19-11-2007 without any intimation or giving any seizure letter to the complainant which is opposed to law. The complainant being shocked by the seizure of the vehicle and the notice kept quite for some time. Later on 8-3-2008 the 1st OP has issued a legal notice to the complainant, calling upon the complainant to pay Rs.81,500/- towards dues of the vehicle. The complainant has issued a reply notice to the 1st OP to give details of the premium amounts due to him and other particulars of the statement of account, but the 1st OP has not replied so far.



5. It is further contended that, on account of the illegal act of the 1st OP, the complainant has suffered financial loss, mental agony and also loss of earning from the vehicle. The complainant is not in a position to earn and lead his livelihood. Thus, the OP has committed deficiency in service to the complainant, eventhough the installments were paid as per the agreement. Till today, the OP has not informed about the position of the vehicle.



6. It is further contended that, the complainant has paid a total amount of Rs.3,01,120/- out of the agreed installments amounting to Rs.5,49,750/-. It is alleged that, as on the date of seizure of the vehicle, he was not a defaulter.



7. It is further contended that, the 1st OP has collected 20 blank cheques of the complainant bearing SB Account No.1529P-7 of State Bank of Mysore as security towards the payment of the installment amount. Till today those cheques have not been returned to the complainant. The cause of action for the complaint arose on 17-4-2007. Hence, this complaint.



8. Among the OPs who have been notified of the complaint, the OPs No.1 to 2 put in their appearance through their counsel and resisted the same.



9. The gist of the objections is as follows:

In the objections filed by the 1st OP, it is alleged that, the complaint is not maintainable and it is liable to be dismissed as the complaint is not a “Consumer” as defined under Section 2(1) (d) of the Consumer Protection Act.



10. It is further alleged that, the complaint is not maintainable either on facts or in the eye of law and it is liable to be dismissed, as the complainant has not come before this Hon’ble Forum with clean hands. He has presented a distorted and incorrect version of the facts before this forum, thereby, has an attempted to misguide and mislead the Hon’ble Forum.



11. It is further alleged that, the complaint is not maintainable and it is liable to be dismissed as no cause of action has arisen in favour of the complainant.



12. It is further alleged that, the complaint under reply is not maintainable and is liable to be dismissed as no prima facie case has been made out against the answering OP. It is evident that the complaint has filed the complaint with some oblique motives in an endeavor to force the answering OP to accept certain illegal demands of the complaint.



13. It is further alleged that, the complaint does not qualify the ingredients of a valid complaint as envisaged in Section 2(c) of the Consumer protect Act, 1986, as such, the complaint is liable to be dismissed on this aground alone.



14. However, without prejudice to the other preliminary objections and averments made, on merits of the case, it is submitted that the alleged transaction, which forms the subject matter of the complaint under reply, is thoroughly commercial in nature and as such does not fall within the scope, ambit and purview of the consumer protection Act and as such the same is liable to be rejected.



15. This OP while emphatically denying the complaint averments as false and untenable inter-alia pleaded that, the complainant availed a financial assistance from the answering OP by way of a loan of Rs.4,25,000/- vide a loan cum hypothecation agreement executed on 17-4-2006. The said loan was the payable on 47 installments at the rate of Rs.11,700/- per month except the first installment was payable at Rs.11,550/-. It is further contended that, as per the agreement, the complainant was liable to pay the installments in strict consonance with the repayment schedule and he has failed to adhere to the terms as to the repayment as laid down in the agreement and thereby has caused immense loss to the answering OP. It is further contended that, the complainant apart from payment of the future installments was liable to pay Rs.23,400/- as on 3-3-2009 besides overdue charges and delay payment charges



16. It is further contended that, the complainant being a defaulter in the payment of installments was served with a notice dated 15-1-2008 to regularize the loan account in question. Since, the complainant has failed to respond to the notice, the OP Company was constrained to take possession of the vehicle on 31-5-2008. It is further contended that, evenafter the repossession of the vehicle when the complainant did not clear the outstanding dues, the OP company was left with no other option, but to sell the vehicle in order to cover the outstanding dues. It is further contended that, the sale proceeds have been duly adjusted towards the outstanding dues to be paid by the complainant. It is further contended that, as on date of the repossession of the vehicle, the complainant was liable to pay Rs.1,04,306-50 besides the overdue charges and delay payment charges apart from the future installments. The complainant has made false and frivolous averment in order to evade his liability to repay the loan. Accordingly, he prays for dismissal of the complaint with costs.



17. The 2nd OP in his objections has contended that, the complaint is not maintainable either in law or on facts. This OP while emphatically denying the complaint averments as false and untenable inter-alia pleaded that the head office of TATA finance Ltd is at Bangalore and the 2nd OP City Car is a DMA (Direct Market Associate) and controlled by the above said head office. The 2nd OP is acting only as an agent between the customer and above institution for providing loan facility. The 2nd OP have no power to collect installment amount or seizing the vehicle and this OP has not collected any installments amount in any manner from the complainant and they have no knowledge of payment made to the schedule vehicle. It is further contended that, when once the loan procedure is completed between customer and TATA finance Ltd, the part of work of 2nd OP will be automatically closed and is in no way concerned for any future transaction. Under above circumstances, the 2nd OP is no way concerned about the alleged seizure of the vehicle because, they are not seizing authority. It is further contended that, the TATA finance Ltd, i.e. 1st OP can only seize the vehicle.. Accordingly, he prays for dismissal of the complaint with heavy costs.



18. In support of the case, the complainant and the OPs have filed their affidavits. The complainant has also pressed in to service relevant documents. The 1st OP has filed written arguments. We have heard the learned counsels appearing for the parties. We have also examined the materials available on record.



19. The questions that arise for our considerations are:

1. Is the complaint maintainable?

2. Is there is any deficiency of service by the OPs?

3. Is the complainant entitled for the relief as prayed for?



20. Our findings on the above questions are here under:

Point No.1: Not maintainable

Point No.2: Does not arise for consideration

Point No.3: As per order



REASONS



21. The bone of contention raised by the OPs in contesting the case is that, the complainant is not a consumer and the dispute does not fall within the meaning of the consumer’s dispute. Therefore, let us proceed to examine the merits of such contention. The term “consumer” is defined under Section 2 (i) (d) of the CP Act. It reads as thus:

“(d) “consumer” means any person who –

(i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; of

(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such series other than the person who [hires or avails of] the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payments, when such services are availed of which the approval of the first-mentioned person [but does not include a person wo avails of such services for any commercial purpose];

[Explanation: For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self employment;]”.



22. A clear reading of the said provision makes it clear that, if any goods for consideration or any services availed for a consideration solely for commercial purpose such dispute does not fall within the meaning of the term consumer. However, there is an explanation added to section 2 (i) (d) (ii). Therefore, from the explanation it is clear, if a person buys, uses the services availed by him exclusively for the purpose of earning his livelihood by means of self employment does not fall within the ambit of commercial purpose. From the complaint averments more particularly at para-2 it is stated as thus:

“After all the formalities the opposite party has delivered the possession of the vehicle to the complainant vide bearing Reg.No.KA-06-A-8853. From the date of possession of the vehicle the complainant used the vehicle for commercial purpose and used to earn. Out of the earning the complainant used to repay the monthly installment amounts as agreed above to the opposite party No.1”.



23. Nowhere, he pleaded that, the vehicle in question was though used for commercial purpose, it was mainly for the purpose of earning his livelihood by means of self employment. In the absence of such basic allegations, we are of the opinion that, the complaint filed by the complaint does not fall within the meaning of the “consumer” as defined under the Act. Therefore, we hold that, the complaint is not sustainable.



24. In view of our finding on point No.1, we feel there is no need to go into the merits of the case. Accordingly, we proceed to pass the following:



ORDER



The complaint is dismissed but without costs.

Omeesh Sharma s/o Late Parmeshwari Dass, resident of Vill. Tohlu, P.O. Bhater, Tehsil Mukerian, Distt.Hoshiarpur.


... Complainant

versus


1.

Libra Automobile Limited, through its Manager, Singriwala, Jalandhar Road, Hoshiarpur (Authorised dealer for Tata vehicles and spare parts).
2.

Regional Manager North Tata Motors Limited, Regional Office, Jiwan Tara 5, Parliament Street, New Delhi-110001.
3.

Tata Motors Limited, 26th Floor, Centre No. 1, World Trade Centre, Cuffee Parade, Membai-400 005.
4.

Tata Motors Pvt. Limited, Jamshedpur-831010 (Jharkhand) through its General Manager.

........... Opposite Parties





1.

The complainant namely Omeesh Sharma has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Stated briefly, the facts of the care arre that the father of the complainant, Late Parmeshwari Dass purchased one Tata Ace Pick Up bearing Chasis No. 445111ARZV01274, engine No. 275IDI05ARZS00568 from OP No. 1- Libra Automobile Limited on 23.5.2008 for Rs. 2,69,401/- vide Invoice No. 204 dated 23.5.2008. The said vehicle is being used by the complainant to earn his livelihood by way of self-employment.
2.

It is the case of the complainant that the said vehicle is under warranty for a period of one year from the date of sale of vehicle or 36000 kms of its running, whichever is earlier. It is the allegation of the complainant that from day one, the said vehicle is creating problem. The vehicle suffers from some inherent manufacturing defect. The the vehicle consumes excessive engine oil. The said fact was brought to the knowledge of OP No. 1. The OP No. 1 carried out the minor repairs, but the same did not work and ultimately, the engine of the said vehicle was overhauled on 23.10.2008.
3.

It is further the allegation of the complainant that even after overhauling of engine, the said vehicle did not work properly and is constantly consuming excessive engine oil. The complainant again brought this fact to the knowledge of OP No. 1. The engine of the vehicle was again overhauled on 25.2.2009.
4.

It is further the allegation of the complainant that after overhauling the engine of the vehicle, it did not work properly and is consuming excessive engine oil, as such it is suffering from some inherent manufacturing defect. The complainant made a request to OP No. 1 to replace the said vehicle, but of no consequences, hence this complaint.
5.

The opposite party No. 1 filed the reply. The preliminary objections vis-a-vis maintainability, suppression of material facts, jurisdiction, and the complainant is not a consumer were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant purchased the said vehicle for commercial purpose from the replying OP and is being used for the purpose of earning profits and not to earn livelihood by way of self-employment. The warranty terms were limited and subject to availing of service after regular coverage.


However, it is admitted that initial period of warranty is 12 months or 36000 kms, whichever is earlier. The OP No. 4 extended warranty to replace the defective parts, in case the parts are not working properly and any part subject to mis-use, accident, repaired/replaced by the outside etc., was not subject to the warranty terms. The replying OP is selling the vehicle as supplied by the manufacturer. The replying OP has sold the vehicle in the same condition as it was received from the manufacturer i.e. M/s. Tata Motors Limited. Thus, OP No. 1 – authorized dealer is not liable for the alleged manufacturing defects in the vehicle.
6.

It is further replied that the vehicle is not creating any kind of problem nor is suffering from any manufacturing defect. It is further replied that diesel engine consumes more oil, whereas, petrol engine consumes less oil due to technical reasons. It is further replied that on 23.10.2008, the vehicle was brought to the workshop of the replying OP for general inspection after coverage of 6712 kms. The engine of the vehicle was not overhauled. The vehicle was working properly and the consumption was also normal. However, it is admitted that on 25.2.2009, the complainant brought the vehicle to the workshop of OP No. 1 after coverage of 10456 kms. First service was due after coverage of 5000 kms. The complainant was not experiencing any problem in the vehicle, so the vehicle was not brought for availing the first free service in time. The complainant was advised to maintain the vehicle as per recommendations of the manufacturer.


That during road test of the vehicle, the consumption of the oil in vehicle was found normal and satisfactory. The engine was not suffering from any problem nor was overhauled, as alleged by the complainant. The complainant has concocted a false story to get the replacement of the vehicle. The vehicle in question complies with the warranties, assurances and specifications provided for it by the manufacturer regarding quality and performance of the vehicle. The services of the vehicle were never carried out as per terms and conditions of the warranty policy, whereas, the warranty issued by the manufacturer is subject to such terms and conditions.
7.

The opposite parties No. 2 to 4 filed the joint reply. The preliminary objections vis-a-vis maintainability, locus-standi, suppression of material facts, the complainant is not a consumer, relationship between the opposite parties and jurisdiction were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the warranty benefits are limited to just exceptions and cannot be availed as a matter of right. It is denied that since the day of purchase, the vehicle is creating problem, as the same is suffering from inherent manufacturing defect and consumes much engine oil.
8.

It is further replied that the complainant brought the vehicle in question at the workshop of OP No. 1 on 20.10.08 with the problem of 'Engine Noisy'. The vehicle was duly inspected by the expert engineers of OP No. 1 and the valve seals of the cylinder head was replaced under warranty. The engine of the vehicle was never overhauled and only minor jobs were performed. The complainant took the delivery of the vehicle on 23.10.08. It is also denied that even after overhauling of the engine, the vehicle did not work properly and was constantly consuming more engine oil. It is submitted that there was no overhauling of engine done by OP No. 1. It is also denied that the engine of the vehicle was overhauled on 25.2.2009.


The complainant has reported at the workshop of OP No. 1 on 17.2.2009, after the vehicle had covered a distance of 10456 KM for availing the 1st Free Service. The complainant also reported the problem of 'high engine oil consumption'. The vehicle was duly inspected by the official of OP No. 1 and in order to satisfy the grievances of the complainant, the Cylinder Head Gasket was replaced under warranty, besides, other minor jobs. The complainant took the delivery of the vehicle on 25.2.2009 to his satisfaction. The complainant is making bald and baseless allegations. It is denied that the vehicle was suffering from inherent manufacturing defect. The engine of the vehicle was never overhauled at any point as alleged by the complainant and only minor defects relating to the engine were replaced.
9.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, supplementary affidavit – Ex. C-2, death certificate of Parmeshwari Dass – Ex. C-3, Legal Heir Certificate – Ex. C-4, bill dated 23.5.2008 – Mark C-5, copy of the RC – Mark C-6, copy of Service Report – Mark C-7, Tax Invoice – Mark C-8 (six sheets), legal notice dated 23.4.2009 – Ex. C-9, AC Ex. C-10, penalty condition – Ex. C-11 (3 sheets) and closed the evidence.
10.

In rebuttal, the opposite parties tendered in evidence affidavit of Dheeraj Sethi – Ex. OP-1, affidavit of MS Pardeep – Ex. OP-2, Tax Invoice – Mark OP-3 (two sheets), satisfaction note – Mark OP-4 and closed the evidence on behalf of the opposite parties.
11.

The learned counsel for the parties have filed written arguments. WE have gone through the written submissions and record of the file minutely.
12.

The grouse of the complainant is that the father of the complainant purchased one Tata Ace Pick Up from OP No. 1 on 23.5.2008. That the said vehicle is under warranty for a period of one year from the date of sale or 36000 kms of its running, whichever is earlier. It is the allegation of the complainant that from day one, the said vehicle is creating problem, as such it suffers from some inherent manufacturing defect. The vehicle consumes excessive engine oil.


The OP No. 1 carried out minor repairs, but the same did not work and ultimately, the engine of the vehicle was overhauled on 23.10.2008, and thereafter also the vehicle did not work properly and is constantly consuming excessive engine oil. It is further the allegation of the complainant that the engine of the vehicle was again overhauled on 25.2.2009, but thereafter it did not work properly and is consuming excessive engine oil. The vehicle is suffering from some inherent manufacturing defect. The OP No. 1 has admitted that the initial period of warranty is 12 months or 36000 kms, whichever is earlier. The warranty is extended to replace the defective parts, and any part subject to misuse, accident, etc., was not subject to the warranty terms.


The OP NO. 1 has raised the plea that the vehicle is not creating any kindly of problem nor is suffering from any manufacturing defect. That the vehicle was brought to the workshop on 23.10.2008 for general inspection after coverage of 6712 kms. The engine of the vehicle was not overhauled, as the vehicle was working properly and the consumption of engine oil was also normal. That on 25.2.2009, the complainant brought the vehicle to the workshop of OP No. 1 after coverage of 10456 kms. There was no defect in the vehicle.
13.

The opposite parties No. 2 and 4 had raised the plea that the vehicle was duly inspected by the expert engineers of OP No. 1 and, thereafter, the valve seals of the cylinder head was replaced under warranty. The engine of the vehicle was never overhauled and only minor jobs were performed. The opposite parties No. 2 to 4 had also raised the plea that the complainant reported the problem of 'high engine oil consumption' and in order to satisfy the grievances of the complainant, the Cylinder Head Gasket was replaced under warranty,besides, the other minor jobs. The complainant took the delivery of the vehicle on 25.2.2009 to his satisfaction.
14.

Now, the point for consideration is whether the vehicle in question suffers from manufacturing defect? The answer to this is in the negative.
15.

Admittedly, the complainant has not examined any expert to prove the manufacturing defect in the vehicle in question.
16.

It is a settled proposition of law that where there is no expert evidence to prove that the vehicle got any defect and only minor repairs were carried out and in the absence of any record with regard to inherent or latent defect it is not possible to hold that the vehicle is suffering from manufacturing defect. Reliance placed on 2009(1) CLT 618, Vikram Bajaj versus Hind Motors (India) Ltd., and another.
17.

The law is also settled that if there is manufacturing defect, then expert opinion should be given. Where petty repairs had been carried out, it does not prove that there was manufacturing defect. Under the circumstances, if only minor repairs are carried out and it has not been proved on record that there is any inherent or latent defect in the engine and expert evidence is not brought on record, the only possible conclusion is that the vehicle does not suffer from any manufacturing defect. Reliance placed on 2009(2) CLT 670 (NC).
18.

The complainant has claimed that the vehicle in question was overhauled twice by OP No. 1, but to prove the said plea the complainant has not produced any evidence, therefore, it is not proved on record that the vehicle of the complainant was overhauled by the opposite party No. 1. The matter does not rest here. The opposite parties have produced on record the Satisfaction Note – Ex. OP-4 dated 25.2.2009 and its careful scrutiny makes it clear that the complainant has received the vehicle in good condition and to his satisfaction. Since the complainant had received the vehicle in good condition to his satisfaction, therefore, the present complaint filed on 22.5.2009 with regard to inherent defect in the vehicle is not maintainable.
19.

As a result of the above discussion, it is held that the complainant has failed to prove any deficiency in service on the part of the opposite parties, with the result the complaint is ordered to be dismissed. No order as to costs. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

K Geetha, 9/8, Thaivalappil house, Azheekode south post, Kannur.

2. TATA Motor Finance, Opp. Ramananda Oil Mills, South Bazarm, Kannur -2.
...........Appellant(s)

Vs.

1. TATA Motors Finance Ltd., 4th Floor, DGP huse, Old Prabhadevi Road, Prabhadevi, Mumbai-400025.
...........Respondent(s)




O R D E R




This is a complaint filed under section 12 of the consumer protection act for an order directing the opposite parties to issue Hire Purchase termination letter and to refund Rs.2300/- together with Rs.20,000/- as damages and Rs.2000/- as cost of this proceedings.

The case of the complainant is that the complainant had availed a hire purchase loan of Rs.3 lakhs from the opposite party for the purchase of a motor vehicle bearing No.KL.13G.5978. Further the complainant has to pay Rs.32, 000/- towards insurance for the vehicle for two years and Rs.76, 500/- as finance charge to the 1st opposite party.


As such the complainant has to pay a total amount of Rs.4, 08,500/- to the 1st opposite party. Towards the repayment of the said amount, the complainant handed over 35 post dated blank cheques to the 1st opposite party. The 1st opposite party encashed the cheques on respective due dates which started from 9.8.04 and ended on5.6.07. All the cheques were honored except three cheques. But the amount due on the bounced chques with penal charges and bouncing charges were duly paid by the complainant to the 1st opposite party. It was agreed between the complainant and 1st opposite party that as soon as the loan amount is paid as per schedule the Hire Purchase termination letter to cancel the endorsement in the RC book of the vehicle would be issued by the 1st opposite party to the complainant.


But even after the receipt of the entire loan amount, the 1st opposite party sent a notice dt.24.1.08 to the complainant demanding to pay a further amount of rs.2240/-. The complainant further submitted that though she was not liable to pay the said amount. In order to avoid a dispute she paid an amount of Rs.2300/- on 4.2.08 to the 1st opposite party as per receipt No.304913030. Even after that the 1st opposite party sent further letters to the complainant demanding various amounts claiming it as due. The complainant submitted that she is not liable to pay any such amount and the 1st opposite party has duty bound to issue the Hire purchase termination letters and to return back the remaining cheques with them.


Even though the complainant had deposited sufficient amount in the bank account to honour the cheques monthly, the opposite party used to present single cheque for the amount due on two or three months together. Hence even after payment of the entire loan amount some cheques are still in the custody of the opposite party as unused. The act of non-issuance of Hire Purchase termination letters to the complainant is deficiency of service on the part of 1st opposite party. Due to the callous and negligent act of 1st opposite party the complainant suffered great mental agony. The complainant claims an amount of Rs.20, 000/- as damages, cost and compensation.

On getting the complaint notices issued to opposite parties but they have-not cared to appear or to file version. Subsequently both of them were called absent and set exparte.

On the above pleadings the following issues were raised for consideration.

1. Whether there is any deficiency of service on the part of the opposite parties?

2. Whether the opposite parties are liable to issue Hire Purchase termination letter of the vehicle having Reg.No.KL.13G.5978 to the complainant?

3. Whether the complainant is entitled to refund Rs.2300/- which she had paid on

4.2.08 as per receipt No.304913030 to the 1st opposite party?

4. Whether the complainant is entitled to get any damage as alleged, If so what is

the quantum?

The evidence consists of the chief affidavit filed by complaint and Exts.A1 to A6.

Issue Nos. 1 and 2

The complainant filed chief affidavit in tune with the complaint. It is her case that she is liable to pay Rs.4, 08,500/- under the hire purchase agreement. Towards the repayment of the said amount in monthly installments 35 signed blank cheques were issued by the complainant to 1st opposite party. The period of loan was over on 5.6.07. Except 3 cheques all other cheques were duly honoured. The amount covered by the dishonored cheque together with the penal charge and bouncing charge was also duly paid by the complainant.

Since the complainant had remitted all the installments of the loan amount, it is the duty of the 1st opposite party to issue the Hire purchase termination letter to the complainant for canceling the endorsement made in the RC book of the complainant’s vehicle. Complainant alleges that for the issuance of the Hire purchase termination letter opposite party further demanded Rs.2240/- by the letter dt.24.1.08. The complainant submitted that in order to avoid a dispute she paid an amount of Rs. 2300/- on 4.2.08. Ext.A4 receipt proves that complainant has remitted the amount. But complainant alleges that even after payment of the amount as per Ext.A4 the 1st opposite party demanded further amount for issuing Hire purchase termination letter.

It is clear from Ext.A3 notice issued by1st opposite party to the complainant, they are demanding Rs.2, 214/- as the balance due till 31.1.08. It is also seen mentioned in the notice that the complainant has to pay the expenses, additional finance charges and for closure charges to the 1st opposite party. But no amount was seen calculated towards the same. After payment of the amount covered byExt.A4 receipts the complainant issued Ext.A5 lawyer notice to the opposite parties demanding to issue the H.P termination letter. The said notice is seen received by the 2nd opposite party on 16.10.08 by Ext.A6. But the opposite parties not even cared to send a reply for the same. The Hire purchase termination letter is also not issued to the complainant.

In the light of the available evidence on record it can be seen that the complainant has paid entire amount liable to pay. But opposite party did not issue the termination letter. Opposite parties are liable to issue Hire purchase termination letter Hence there is deficiency of service on the part of opposite parties. The issue No.1 and 2 found in favour of complainant.

Issue No.3

Complainant submitted that she had remitted Rs.2300/- as per Ext.A4 receipt in order to avoid a dispute. It is seen that the complainant remit the said amount without any objection and in tune with the Ext.A3 lawyer notice issued by 1st opposite party. Complainant has not adduced evidence to prove that the amount in ext.A4 is over and above the liability. Hence it is difficult to direct 1`st opposite party to refund the said amount. Issue No.3 is found against complainant.

IssueNo.4

The complainant has not adduced evidence to show what all damages she has suffered due to non issuance of Hire purchase termination letter. It is understandable that in the usual course there is some difficulty and mental agony under such circumstances. In consideration of the practical difficulties and mental agony that the complainant has suffered we are of opinion that complainant is entitled to get a sum of Rs.5000/- as compensation and Rs.1000/- as cost of these proceedings. Thus issue No.4 is found in favour of the complainant.

In the result, the complaint is allowed directing the1st opposite party to issue the Hire purchase termination letter of the vehicle bearing Reg. No.KL.13.59768 and to pay Rs.5000/-(Rupees five thousand only) as compensation together with Rs.1000/- (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order failing which the complainant is allowed to execute the order against the opposite parties under the provisions of consumer protection Act.

Daljit Kumar son of Sh. Roop Lal resident of Ward No. 10, Tanda Urmar, Tehsil Dasuya, District Hoshiarpur.

..... Complainant

versus


1.

Tata Motors Finance Ltd., Branch Office at Chandigarh Road, near Mini Secretariat, Hoshiarpur, now the office shifted to Nirmal Complex Jalandhar, Through its Manager.
2.

Tata Motor Finance Ltd., C/o DG/P, House Fourth Floor, Old Prabhadevi Road, Mumbai, through its Manager.
3.

M/s. Libra Automobiles Ltd., Village Singriwala, Tehsil and District Hoshiarpur, through its Manager.

.......... Opposite Parties








1.

The complainant namely Daljit Kumar has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act”. Put briefly, the facts of the case are that the complainant purchased a Tata ACE – Car bearing registration No. PB07-T-7583 from Libra Automobiles – OP No. 3 in the month of December, 2007 to earn his livelihood by way of self-employment. The OP No. 3 issued Invoice dated 7.12.2007 amounting to Rs. 2,53,738/-.
2.

It is the case of the complainant that he made the payment of Rs. 33,500/- in advance (Rs.10,000/- on 12.11.2007, Rs. 25,000/- on 7.12.2007 and Rs. 9500/- on 18.12.2007). That OP No. 3 disclosed that there is an offer by the makers that if the car is purchased in the month of December, 2007, then the discount of Rs. 8000/- is available, as such the payable amount comes to Rs. 2,01,238/-. It is averred that the agent of OPs No. 1 and 2, who was present in the office of OP NO. 3, offered 9% interest reducing rate on finance amount. Thus, the complainant agreed to finance the vehicle from OP No. 1 for Rs. 2,01,000/-.
3.

It is the allegation of the complainant that OP NO. 1 got signatures of the complainant on blank papers with the understanding that the agreement would be scribed later on, as per terms and conditions settled between the parties. The OP No. 1 made the payment of Rs. 2,01,000/- to OP No. 3 – Libra Automobiles Ltd. That the complainant is paying the instalments of loan amount to OP No. 1 regularly.
4.

It is the grouse of the complainant that in the month of December, 2008, when he went to the office of OP No. 1 to deposit the instalment, the officials of the opposite party asked him to deposit additional amount of Rs. 18,000/-. That the Manager of OP No. 1 also raised the threat that if the amount of Rs. 18,000/- is not deposited, in that eventuality, the possession of the vehicle will be taken. However, the complainant deposited the amount of Rs. 8000/- in the month of December, 2008.
5.

It is further the allegation of the complainant that he visited OP No. 1 with the request to supply the Statement of Loan Account, but all in vain, thus the complainant served a legal notice upon OP No. 1. It is further the allegation of the complainant that he never took the loan of Rs. 2,27,000/- from OPs No. 1 to 3. The opposite parties are charging higher rate of interest on the amount of Rs. 2,27,000/-. The opposite parties raised the threat that they will take the possession of the vehicle and, thereafter, it will be sold to some other person, hence this complaint.
6.

The opposite parties no. 1 and 2 filed the joint reply. The preliminary objections vis-a-vis maintainability, jurisdiction, the complainant is not a consumer and concealment of material facts were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant was not regular in paying the loan amount in instalments. It is denied that the signatures of the complainant were obtained on blank papers. The complainant had committed breach of the terms and conditions of the agreement by making a default in payment of the loan amount in instalments, as agreed between the parties. That the complainant executed a loan agreement with Tata Motors Finance Limited for obtaining finance facility and thereafter, obtained finance.


The complainant has to pay the loan instalments in time and in case of default, the answering opposite parties had the right to take back the possession of the vehicle as the vehicle is the only security available for securing the loan amount, per terms and conditions of the agreement dated 7.12.2007.

7.

It is further replied that the vehicle was taken for commercial purpose and was being used for business purposes. It is provided under the agreement that all disputes arising under the said agreement are to be referred to the sole arbitration of an Arbitrator to be nominated by Tata Motors Finance Limited. The agreement also provides that the Courts at Mumbai alone shall have jurisdiction in respect of any matter arising out of the Agreement. The case of the complainant pertains to accounts, thus it will not fall within the purview of the Consumer Court. The complainant after executing the Loan Agreement agreed to pay the instalment every month. The complainant made a default in the payment of the loan instalment with a view to cheat the replying opposite parties. The complainant had availed the loan of Rs. 2,27,000/-.
8.

It is further replied that the vehicle in question was financed by the replying opposite parties and the invoice amounting to Rs. 2,53,748/- was issued. Out of the amount of Rs.2,53,748/- , the complainant paid Rs. 26,748/- towards margin money. The complainant issued cheques bearing No. 33687 dated 11.7.2008, bearing No. 33688 dated 11.8.2008, bearing No. 33689 dated 11.9.2008, bearing No. 33690 dated 11.10.2008, but the complainant failed to ensure sufficient funds to clear the said cheques.
9.

The OP NO. 3 filed a separate reply. The preliminary objections vis-a-vis maintainability and suppression of material facts were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant purchased Tata Ace Vehicle on 7.12.2007 for Rs. 253748/- and not for Rs. 253738/-. It is replied that the margin money is Rs. 44,500/- and not Rs. 33,500/-, as alleged by the complainant. The detail of the amount charged for the purchase of the vehicle in question had been given vide para No. 2 of the reply.


It is denied that the price of the vehicle comes down to Rs. 2,09,238/- after deduction of margin money. It is also denied that after discount of Rs. 8000/-, the price of the vehicle comes to Rs. 2,01,238/-, as alleged by the complainant. It is also denied that the amount of Rs. 2,01,000/- was got financed by the complainant. It is also denied that the agreed rate of interest was 9%. It is also denied that the OP No. 1 gave Rs. 2,01,000/- as finance amount to the replying OP. It is further replied that the demand of Rs. 18000/- was never raised, as alleged by the complainant.
10.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex. C-1, receipts dated 7.12.2007 – Mark C-2, dated 12.11.07 – Mark C-3, dated 7.12.07 – Mark C-4, dated 18.12.2007 – Mark C-5, dated 12.11.07 – Mark C-6, dated 27.1.2009 – Mark C-7, dated 12.1.2007 – Mark C-8, dated 31.12.2008 – Mark C-9, dated 20.12.2008 – Mark C-10, postal receipts – Mark C-11, notice dated 29.1.2009 – Mark C-12, and closed the evidence.
11.

In rebuttal, the opposite parties No. 1 and 2 tendered in evidence affidavit of Mr. Johnson Andrews – Ex. OP-1, whereas, the opposite party No. 3 tendered in evidence affidavit of Dheeraj Sethi – Ex. R-1 and closed the evidence on behalf of the opposite parties.
12.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
13.

The learned counsel for the complainant made a reference to Para No. 1 of the reply, on merits, filed by OP No. 3 – M/s. Libra Automobiles Ltd., wherein it is stated that the cost of the vehicle is Rs. 2,53,748/- + Rs. 11,815/- (insurance premium) + Rs. 12,437/- (expenses for RC and file charges etc.) and in this way, the total amount comes to Rs. 2,78,000/-. The detail of the finance amount received has also been given. The Tata Company has financed the vehicle for Rs. 2,27,000/- minus Rs. 1,500/- = Rs. 2,25,500/-. That vide para No. 2 of the reply, it is submitted that the complainant had paid the margin money of Rs. 44,500/-. The complainant was entitled for the cash discount of Rs. 8,000/-.
14.

Now, it is clear that the complainant has paid Rs. 44,500/- as margin money and the cash discount of Rs. 8,000/- has also been allowed, therefore, the amount of Rs. 44,500/- + Rs. 8,000/- = Rs. 52,500/-, is required to be deducted from the cost of the vehicle i.e. Rs. 2,53,748/- minus Rs. 52,500/- = Rs. 2,01,248/-. Thus, the complainant is liable to pay Rs. 2,01,248/- to opposite parties No. 1 and 2 along with other charges as agreed between the parties. Admittedly, the opposite parties No. 1 and 2 had financed the vehicle for Rs. 2,27,000/-. The opposite parties No. 1 and 2 had also not explained with regard to the deduction of Rs. 1,500/- made from the finance amount of Rs. 2,27,000/- .
15.

The learned counsel for opposite parties No. 1 and 2 raised the arguments that the complainant had executed a loan agreement with Tata Motors Finance Limited for obtaining finance facility and obtained finance from Tata Motors Limited, as such, the complainant and opposite parties No. 1 and 2 are bound by the terms of the agreement. The complainant had agreed to pay the loan instalments in time and in case of default, the opposite parties No. 1 and 2 had every right to take back the possession of the vehicle as the vehicle is the only security available for securing the loan given to the complainant. The complainant after executing the loan agreement agreed to pay the instalments every month. The complainant made a default in the payment of the instalments . The complainant obtained loan from opposite parties No. 1 and 2 with the promise to repay with interest in 4 years in 47 monthly instalments in the sum of Rs. 7,409/-.
16.

As a result of the above discussion, the complaint of the complainant is accepted and opposite parties No. 1 and 2 are directed to rectify the loan account and loan installments within the frame work of the agreement executed with the complainant i.e. as per terms and conditions of the said agreement. Further , the OPs No.1 and 2 are directed to supply the information with regard to loan account of the complainant. Further, the OP No.1 and 2 are restrained from taking the possession of vehicle No. PB07-T-7583 except in due course of law. Litigation expenses are assessed at Rs.1000/- to be paid by OP No.1,2 to the complainant within one month from the receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

1. Jasbir Kaur wd/o Surjit Singh son of Sh. Malook Singh, resident of V. Noorpur Hakima, Tehsil & Distt. Moga.



2. Karamjeet Singh.



3. Navjeet Singh.



4. Jagjeet Singh, minor son of Sh. Surjit Singh.



5. Sarabjit Kaur minor D/o Surjit Singh



Complainants no.3 to 5 minors, through their mother Smt. Jasbir Kaur, who is natural guardian of the minors and has no adverse interest against the minors.

(Complainants)

Vs.



1. Balwant Sales Ltd. near Jalandhar Octroi Post, G.T. Road West, Ludhiana through its Managing Director/ Manager.

2. Tata Motors Ltd. Tata Motor Finance, Regd. Office Bombay House, 24 Homi Mody Street, Mumbai-400001 through its Managing Director/Manager.

(Opposite parties)




O R D E R




1- Sh. Surjit Singh predecessor-in-interest of the complainants purchased vehicle (PB-29E-9593) from opposite party no.1, after getting it financed from opposite party no.2. Loan-cum-hypothecation agreement dated 14.4.2005 was entered between Sh. Surjit Singh and opposite party no.2. Sh. Surjit Singh thereafter had been paying loan amount in installments to opposite party.


He died on 28.3.2006. Since his death, complainant no.1 being widow has been making payment of loan amount to opposite party. In first week of August, 2007, opposite party no.1 required complainant to bring the vehicle to workshop, for proposes of service and inspection. Consequently, on 14.8.2007, complainant no.1 and her brother-in-law Sh. Rajinder Jeet Singh took vehicle to workshop of opposite party no.1, who then seized the vehicle, on averments that it would be released after clearing the whole balance of the loan amount. Thereafter, complainant had deposited huge amount with opposite party and made last payment of Rs.23,550/- on 31.12.2007. On that day, opposite party no.1 had made clear that a sum of Rs.23,550/- was due as balance to the loan amount and on payment thereof, vehicle would be released.


Then in first week of January, 2008, complainant no.1 went to office of opposite party no.1 with Rs.23,550/- and requested to accept the same and release the vehicle. But opposite party no.1 still claimed that another sum of Rs.47,343.94 was due from complainant no.1, on account of O.D. charges, which she objected being illegally raised demand by opposite party no.1. Thereafter many times, offered balance loan amount of Rs.23,550/-, but opposite party no.1 remained adamant to charge illegal amount of Rs.47,343.94 as O.D. charges, along with balance amount of Rs.23,550/-. At that time, opposite party no.1 also issued her detailed account statement dated 13.3.2007. On checking, it was found that the statement was incorrect, as certain amounts deposited by her, were not reflected in her account statement.


Her request to overhaul the account properly was not conceded and intimated them that was ready to deposit actual due balance, as full and final payment and that won’t pay illegal amount of Rs.47,343.94 claimed as O.D. charges. Since 14.8.2007, opposite party illegally detained vehicle of the complainants, due to which caused loss of Rs.30,000/- per month to them. For such deficiency in services on part of the opposite party, instituted this complaint u/s 12 of the Consumer Protection Act, 1986, to overhaul loan account correctly and release the vehicle, on deposit of actual due balance and pay her compensation of Rs.1 lac along with economical loss of Rs.30,000/- p.m. since 14.8.2007 till release of the vehicle.

2- Opposite party no.1 in reply claimed that complaint is not maintainable, complainant has no locus standi to file the complaint. There was no privity of contract between them and the complainant. The vehicle was given to Sh. Surjit Singh under loan agreement on 14.4.2004. Complainants have got no right to sue on behalf of Sh. Surjit Singh, as they are not his LRs.


Further averred that Sh. Surjit Singh, who had purchased the vehicle under loan agreement, committed default in repayment of the loan. Paying loan installments by complainant no.1 being widow of Sh. Surjit Singh, is also denied. Sh. Surjit Singh had deposited loan installments of Rs.23,550/- upto 19.1.2006. Still there was a default of Rs.54,578/- towards installments on that day. Till 31.5.2006, no installment was paid. By end of March, 2006, there was a default of Rs.97,428/- towards installments. Opposite party no.1 deposited Rs.1 lac by cheque no.970310 dated 30.3.2006 on 31.3.2006, to clear the default under liability clause. Thereafter, installments were not deposited regularly by the borrower or any of his representatives. Loan installment of Rs.23,550/- was deposited on 23.6.2007. After that, no installment was paid or deposited on behalf of the borrower.


Also denied that opposite party no.1 brought vehicle to their workshop in August, 2007. Rather, Sh. Malook Singh father of borrower Sh. Surjit Singh, had surrendered vehicle on 15.8.2007 with the replying opposite party, with the assurance to take it back after paying the loan amount. After 23.6.2007, a sum of Rs.23,550/- was deposited by Sh. Malook Singh father of the borrower. Thereafter, no installment was deposited. Also disputed and denied that complainant no.1 approached opposite party, with balance amount of Rs.23,550/-, but they illegally demanded Rs.47,343.94 as O.D. charges. Loan installments received by them were remitted to opposite party no.2. As such, there is no deficiency in service on their part. Nor complainant suffered any financial loss due to their act.

3- Opposite party no.2 did not contest the complaint and is being proceeded exparte.

4- Complainant and opposite party no.1 adduced evidence in support of their respective claims.

5- We have heard ld. counsel for parties and perused the record.

6- Admitted aspects are that Sh. Surjit Singh had taken loan of Rs.8.50 lacs from opposite party no.1, for purchase of a vehicle, which he ultimately purchased from opposite party no.1 vide invoice Ex.C2 for Rs.9,27,771/-. Loan-cum-hypothecation agreement (Ex.C4) was entered between the parties. The loan was repayable in 47 monthly equated installments of Rs.23,550/- each, except first installment of Rs.25,700/-. After such purchase, vehicle was registered in the name of Sh. Surjit Singh, as reflected vide RC Ex.C5.

7- It is in aforesaid scenario claim of the complainants that borrower Sh. Surjit Singh died on 28.3.2006 and till death, had been regularly paying installments. After his death, installments were also paid by complainant no.1 being widow of the borrower. She defaulted in making payment of few installments. So, on 14.8.2007, the vehicle was seized by opposite party no.1, when it was taken to the workshop for service purposes. At this stage, we may venture to say that we do not want to enter into any discussion whether the vehicle was repossessed by opposite party no.1 forcibly or complainant no.1 of her own surrendered the vehicle. Because it is not allegations of the complainant that opposite party no.1 used musclemen or henchmen and by force, took possession of the vehicle. On the date 14.8.2007, when vehicle was repossessed by opposite party no.1, the borrower owed on account of loan, a sum of Rs.81,428/- as reflected in loan account statement Ex.C6 (Ex.R3) of Tata Motors, opposite party no.2.


However, it is not alleged by complainant, nor disputed by contesting opposite party no.1 that vehicle was seized by opposite party no.2. Rather case is that it was taken by opposite party no.1 which they have admitted, by claiming that father of the borrower himself surrendered the vehicle and promised to take it back after paying balance loan amount. Therefore, we have no doubt in mind that vehicle was repossessed by opposite party no.1, due to failure to pay installments in time as agreed.

8- During the course of arguments, ld. counsel for opposite party no.1 argued that they never seized or took possession of the vehicle, as finance was provided by opposite party no.2, so vehicle is possessed by them and is not in their possession. But such contention being inconsistent and contrary to pleaded case of opposite party no.1, deserves outright rejection. So, we have no hesitation to conclude that the vehicle is in possession of opposite party no.1, as they have not pleaded that after taking possession of the vehicle, its possession was handed over by them to opposite party no.2, who had financed the same.

9- Now we would advert to main plea that only a sum of Rs.23,550/-was due against loan account, which complainant no.1 offered, requesting for release of the vehicle, but declined by opposite party no.1. On behalf of opposite party no.1, it was argued that narration of the complainant is totally incorrect, as much more amount was due, when vehicle was surrendered to opposite party no.1 and on account of their failure to clear the loan amount, possession of the vehicle could not have been redelivered to the complainants. Also argued that complainants being legal representatives of the borrowers, have no right to file this complaint and consequently, the same deserves dismissal.

10- In support of the contention that legal representatives of the deceased are not consumers and can not maintain a complaint under Consumer Protection Act, 1986, reliance was placed on case reported as Mrs. Hemalatha Saptharishi & Ors. Vs Indian Oil Corporation Ltd. & Ors. 1999(1) CPR-392(Tamil Nadu State Commission). No doubt in that case, it was held that legal representatives of a consumer are not consumers, so can not maintain a complaint under Consumer Protection Act, 1986. But facts of that case were distinct, as one M. Saptharishi was a registered consumer of LPG cylinder. While igniting LPG gas, there was a mishap causing injuries to M. Saptharishi, who consequently succumbed thereto. Damages claim was filed by his LRs. It as in such circumstances that LRs were not held legal representatives of the deceased.


Whereas, facts of this care are distinct. Herein, borrower was predecessor-in-interest of the complainants and after his death, complainants have been honouring loan installments, by depositing the same which were accepted by opposite party no.1. Complainants being legal heirs of owner of the truck, also succeeded to the property in the truck. Therefore, on account of seizure of the truck, their right was affected. Hence, they have to be construed and taken as consumers. Because opposite party no.1 also conceded them to be consumer, by receiving few loan installments from complainant no.1 and by issuing receipts and installments in her name after death of the borrower. Therefore, we find in these circumstances, no merit in plea of the opposite party no.1 that complainants are not the consumers, not entitled to file the present complaint.

11- Qua merit, we may say that regarding relief sought, we have to refer ourselves to account statement Ex.C6 (Ex.R3) of the loan account. On the day of seizure of the vehicle on 14.8.2007, a sum of Rs.81,428/- was shown as due against loan account of borrower Sh. Surjit Singh. Due to non-deposit of installment of Rs.23,550/- due in September, 2007, a sum of Rs.1,04,900/- is shown credited to the account and showing balance due Rs.78.00 only. It is pleaded by opposite party no.1 that when borrower failed to clear loan as per loan agreement, they paid this amount of Rs.1,04,900/- by way of cheque to opposite party no.2 and then the amount was credited to the loan account of the borrower. For scanning this submission, we referred ourselves to loan account statement Ex.C6 as well as plea taken by opposite party no.1 in their written statement.

12- In para no.3 of the written statement, it has been specifically pleaded by opposite party no.1 that by the end of March, 2006, there was a default of Rs.97,428/- towards installments. Outrightly, such assertion of opposite party no.1 is not only wrong, but false as well. Because the statement Ex.C6 goes to show that on 15.6.2006, a sum of Rs.21,478/- was only balance qua the loan amount, which swelled to Rs.45,028/- upto 15.7.2006. This loan statement of the opposite party no.2 consequently belies defence of opposite party no.1.

13- Further plea in para no.3 taken by opposite party no.1 is that they deposited Rs.1,00,000/- by way of cheque no.970310 dated 30.3.2006 on 31.3.2006, to clear the default, under liability clause. Because installments were not regularly deposited by the borrower or his representative. But, in the entire statement Ex.C6, there is no entry of receipt of Rs.1,00,000/- on 31.3.2006 in the loan account of the borrower. Rather, on 31.3.2006, there is entry of receipt of Rs.99,500/- vide instrument no.H-970310. No doubt, opposite party no.1 have also mentioned cheque no.970310 dated 30.3.2006 in their reply, but amount shown by them is Rs.1,00,000/-. Whereas, as per entry, it was only Rs.99,500/-. After adjustment of that amount, a sum of Rs.2072/- only is reflected as balance against the loan account.

14- It is argued on behalf of opposite party no.1 that Rs.1,00,000/- was deposited by them of their own, under certain arrangement and agreement with opposite party no.2. But such arrangement or agreement between opposite parties no.1 & 2, has not seen light of the day. Nor it was proved on the record, by tendering in evidence. Along with written arguments, Ld. counsel for opposite party no.1 appended one copy of such agreement with opposite party no.2. But we can not look into any extraneous material, which is not brought on the record. Therefore, we can not admit such agreement which opposite party no.1 marked himself as Annexure-R-AB. Because it is not proved in accordance with the law. Nor we have any material that actually such agreement was entered into between opposite party no.1 & 2.


Therefore, we have no material that opposite party no.1 was under obligation to opposite party no.2, to pay the loan installment, in case default committed by original borrower of the loan. But at the same time, it is also not claimed by complainant that Rs.99,500/- was deposited by them in the loan account on 31.3.2006. Hence, they may have of their own deposited Rs.99,500/- in the loan account of the complainant, as maintained by opposite party no.2. But we may say that though opposite party no.1 failed to prove any agreement with opposite party no.2 to pay outstanding dues on behalf of complainant in case of default by him, but it is proved aspect by way of account statement Ex.C6 (Ex.R3) that opposite party no.1 deposited Rs.99,500/- on 31.3.2006 vide instrument no.H-970310, leaving balance of Rs.2072/- only against the complainant.

15- After 31.3.2006, on irregular intervals, certain amount against this loan, was being deposited, which is reflected from the following table:-

Date of Deposit


Amount Deposited (In Rupees)


Balance (In Rupees)

31.5.2006


45028


2072

30.8.2006


47000


21578

28.10.2006


17000


51678

30.10.2006


23100


28578

7.12.2006


30000


22128

28.12.2006


14650


31028

11.1.2007


22550


7478

14.1.2007


23550


31028

14.2.2007


23550


54578

19.2.2007


23000


31578

20.3.2007


20800


34328

25.4.2007


23550


34328

28.5.2007


23550


34328

23.6.2007


23550


34328

9.10.2007


104900


78

31.12.2007


70728


Nil

31.12.2007


23550


23550



Upto 14.2.2008, balance of Rs.23,550/- against the loan, is reflected in the statement. In that way, made out that total amount of Rs.10,61,900.00 was received from the borrower and a sum of Rs.23,550/- remained payable. In this statement, accrued ODC is also recorded as Rs.47,343.94. But there is no explanation on what account, ODC charges at the fag end of the account statement, were added to the account. Such demand shown in the account statement, can not at all be justified and legal. Rather, it appears to be arbitrarily and illegally added by opposite party no.2 to the loan account of the complainant. This means complainant qua this loan, only owed Rs.23,550/- and demand of ODC charges to the tune of Rs.47,343.94 is arbitrary and illegal, which we accordingly set aside.

16- So, it means only Rs.23,550/- is payable by complainant under this loan account to the opposite party. Complainant had been offering that amount which opposite party refused to accept and also decline to release the vehicle. Probably, they did it for the reason that had paid on 31.3.2006, a sum of Rs.99,500/- in the loan account of the borrower.

17- In these circumstances, we allow this complaint against both the opposite parties and direct them to release the vehicle of the complainant, on receipt of Rs.99,500/- plus Rs.23,550/- and then release vehicle of the complainant in that very condition in which, it was taken into possession by opposite party no.1. In peculiar circumstances of the case, we pass no order as to compensation and costs. Order be complied within 45 days of copy of receipt of copy of order, which be supplied to the parties free of charges. File be complete and consigned to the record room.