Per Shri Bhaskar B. Yogi – Hon’ble President.
1. Consumer complaint is filed under section 35 of the CPA, 2019, against the OP No. 1- Dealer, OP No. 2 –Financial Institution and OP No. 3 -Manufacturing Company for supplying defective goods vehicle, praying for new vehicle from OP. no.3 and direction to OP. No. 1 not to collect any undue amount from complainant and lastly, direction to Op No. 1 & 2 to resist from taking any undue advantage / coercive action against the complainant. We proceed to pass below order under Section 39 Read with Regulation 18 (5) as directed to the Commission.
2. There is no dispute regarding relationship of consumer and service provider between complainant and the Opposite parties. It is not disputed that the Vehicle is sold by OP No.1 as Dealer and Manufactured by OP No.3 and the vehicle is sold on finance is also admitted by the OP No.2.
3. The consumer dispute is limited regarding selling of defective goods vehicle and thereby consequential loss and failure to repay the EMI on due dates. Opposite party no. 3 fail to appear and hence proceeded ex-parte vide order dated 14.12.2021. Therefore, the statement of complainant are proved correct u/s 114 (9) of Evidence Act against O. P. No. 3.
4. The vehicle model TATA ACE GOLD was purchased on 06.11.2020 by paying Rs. 3600/- and booking amount Rs. 5000/- & Rs. 75,000/- on 21.10.2020 & 27.10.2020 i.e. total Rs. 83600/- in cash (Doc. No. 6-8) for total amount of Rs. 7,51,445/- (Para no. 6 of complaint) by the complainant to the O.P. No.1 and by taking finance of Rs. 4,80,464/- (Doc. no. 4) from O.P. No.2.
Since beginning the vehicle was not performing well and created many technical problems ON REGULAR INTERVAL’S as shown in service history at Doc. No. 8 & 9. The Ruling of Hon’ble National Commission in case of M/s. Telco Construction Equipment Co. Ltd. vs Kongara Suryanarayana & 2 Ors. decided on 16th March, 2020 is squarely applicable.
5. The Opposite party no.1 have admitted that they have changed New Engine long Block assembly and replaced as mentioned in its reply Para no. 15 and also admitted the statement of complainant regarding the problems he had faced and confirmed that they had provided the service of regeneration with help of diagnostic laptop as per guidelines of TML & resolved the problem and even corrective action taken whenever the DPF regeneration lamp blinked on instrument cluster & high soot accumulation occurred. Also paid one installment of Rs. 11,319/- vide cheque dated 16.02.2021. If one reads the written version of OP no.1, IT IS PROVED THAT the complainant is facing frequent problem with the vehicle and the OP no.1 has provided corrective service to the complaint many times – (Para no.18).
It is very important to note that the complainant has purchased the vehicle for his livelihood but due to regular trouble in the vehicle and due to afflux of time the warranty period is also to be finished on 27.10.222. Thus the purpose for which the vehicle was taken becomes futile due to manufacturing defect in engine and on another hand the financial liability is also burdened upon the complainant. The opposite party no.1 has failed to prove that the complainant does not have business. In fact the complainant has filed affidavits of independent witnesses in his favor and photographs also confirm the contentions of the complainant as mentioned in Para no. 9 of the complaint and opposite party failed to prove their case. Hence complaint must be allowed in favor of the complainant with compensation on the principle of RESTITUTIO IN INTEGRUM. We rely on the decision of the Hon’ble Supreme Court in V. Krishan Kumar Vs. State of Tamil Nadu & Ors. [2015 (9) SCC 388], in which the Hon’ble Apex Court has laid down the principle of restitutio in integrum , wherein it was held that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event.
In present case the complainant could not able to earn during repairing period of vehicle and have to pay the loan EMI therefore it is better to compensate half the EMI amount for the period of 23 months i.e. Rs.1,30,000/- (one month already paid by the OP no.1). But we are not inclined to grant any legal cost to the complainant being failure to comply our order dated 15.03.2022 & 20.07.2022.
Complaint against OP no.2 be rejected being no shortcoming proved against them.
Hence following order.
-: FINAL ORDER:-
1. Complaint is allowed with compensation of Rs. 1,30,000/- to be paid jointly and severally by O. P. No.1 & 3 to the complainant within 30 days. The order shall be complied with within one month from this date, in default, the aforementioned amount shall carry interest @ 9% per annum from today till realization.
2. O. P. No.1 & 3 are jointly and severally directed to handover New Goods Vehicle of same make and model defect free to the complainant within 30 days. Complainant is directed to hand-over the original keys and legal possession of the vehicle in favour of the O. P. No.1 & 3 since physical possession is with O. P. No.1.
3. Complaint against O. P. No.2 is rejected.
4. Certified free copy of this order be provided to the parties as per Regulation 21.
5. Additional sets of complaint be returned to the complainant and original complaint along with documents be confined to record room
