DATE OF FILING : 31-01-2014.
DATE OF S/R : 28-02-2014.
DATE OF FINAL ORDER : 06-08-2014.
Sk. Azhar Ali,
Chandan Nagar ( Mollapara) P.O. Chandan Nagar,
P.S. Maheshtala, Kolkata – 700141. --------------------------------------- COMPLAINANT.
- Versus -
1. Prosperous Automobile Pvt. Ltd.
of J.L. No. 25, Mouza – Alampur,
District – Howrah, P.S. Sankrail,
PIN – 711302.
2. SML ISUZU Limited,
215/8, Jodhpur Park, Ground Floor,
Kolkata – 700 068.
3. UCO Bank,
though Branch Manager, Akra Road,
Branch – 1760, T-102/A, Akra Road,
Kolkata – 700018.--------------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
1. The instant case was filed by complainant U/S 12 of the C.P. Act, 1986 wherein the complainant has prayed for direction upon the o.p. nos. 1 & 2 either to replace the vehicle being chassis no. MBUZT 54 XFZ 0174312, engine no. SLT 4EZ167222 or refund the entire amount to the tune of Rs. 13,50,000/- together with interest and to pay compensation to tune of Rs. 3 lakhs and litigation costs of Rs. 50,000/- and direction upon the o.p. no. 3 not to demand any EMI.
2. After purchase of the vehicle as above to maintain his livelihood and after preparing of the body for a mini bus the complainant within short span after running of the vehicle in the route detected gross mechanical and manufacturing defect. He placed the same before the custody of the o.p. no. 1 for necessary repairment as it was within the warranty period. Even then, the vehicle started developing various engine problem being the manufacturing defect. The complainant was unable to ply the said vehicle on road for a continuous period. Several occasions the complainant requested for replacement of the defective vehicle by a new one but it went unheeded. As the complainant, being an unemployed youth having no source of income to maintain his livelihood arranged for the loan from o.p. no. 3 bank with handsome EMI per month. He is facing tremendous trouble to collect the EMI for non movement of the vehicle which suffers from manufacturing defect. Hence the case.
3. The o.p. no. 1 in his written version contended interalia that the chassis was received by the complainant in o.k. condition; that due and regular service were rendered during warranty period whenever it was replaced in the custody of the o.p. no. 1; that the mini bus has covered considerable kilo meters which reflects the good condition of the vehicle. So the complaint should be dismissed.
4. The o.p. no. 2 in their written version contended interalia that if any defect is detected i.e., due to non maintenance and manhandling of the vehicle ; that the o.p. no. 1 rendered service to the vehicle within the warranty period; that the o.p. n o. 2 is a reputed manufacturing concern and every vehicle manufactured at the plant undergoes various quality control tests before marketing. So the complaint requires to be dismissed.
5. The o.p. no. 3 UCO Bank in their written version stated that they are entitled to recover principal loan amount through EMIs ; that the money given as loan is a public money; that the complainant shall be penalized in case of any defaulter.
6. Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
ii) Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
7. Both the points are taken up together for consideration. Ld. lawyers for the o.ps. contended that the complainant is not a consumer within the meaning of Section 2(1)(d) as the vehicle was purchased for commercial purpose.
8. On scrutiny of the complaint it appears that the complainant in no uncertain terms declares in para no. 1 of the petition by swearing affidavit that he is an unemployed person and having no source of income to maintain his livelihood, he decided to purchase a mini bus so that he can maintain his livelihood. It is not the case of the o.p. that he is the owner of good many numbers of mini buses and running business for profit. In the result we are of the view that the complainant is a consumer within the meaning of Section 2(1)(d) and the dispute over the issue of commercial purpose is set at rest.
9. Admittedly the complainant purchased the vehicle through bank loan from the o.p. nos. 1 & 2. The allegation that the mini bus has covered several thousands kilometers and as such the claim of the complainant that the vehicle is defective, has no basis at all. Running of the vehicle in the route does not ipso facto ascertain that the vehicle is free from any mechanical defect. In fact, the ghost of EMI to be paid to the o.p. no. 3 always haunted the complainant to anyhow collect the money by running the same in the route. It is the positive case of the complainant that side by side he always made contacts to the o.ps. for redress. A person of ordinary prudence cannot swallow a big pill that after purchasing a new mini bus the complainant started pestering the o.p. nos. 1 & 2 for replacement of the same which is a new one. He purchased the vehicle for his livelihood. If the vehicle is in good condition as claimed by the o.ps., for what possible reason the complainant would place himself in double jeopardy by dumping the same and evading the EMI to the o.p. no. 3.
10. The claim of the o.p. nos. 1 & 2 that the vehicle in question is free from any defect cannot be expected as sacrosanct. Such allegation is not uncommon in our country. Very recently it was in the news publication that a well reputed manufacturing plant of widely circulated cars already sold, withdrew as many as 1 lakh cars from the market through their dealers for allegation of patent manufacturing defect. Likewise, who can confirm with certainty that the engine in dispute did not have any congenital manufacturing defect since the date of purchase. Conversely the possibility of collusion of the o.ps. 1 & 2 to thrust upon the defective engines to the purchasers cannot be eliminated. Unfortunately the complainant fell prey to the well-orchestrated unholy alliance of the giant manufacturers and dealers. It is for the whimper of the hapless purchaser i.e., the complainant such collusion comes to surface. Much have been argued that the complainant is a lay man and not an expert. How can he ascertain the mechanical defect when the engine was not tested by any expert engineer.
11. In reply we may reproduce the well known proverb ‘the wearer know when the shoe pinches.’ The complainant after scraping through good many hurdles and hassles, secured a loan from the o.p. no. 3 Bank running huge risk to pay the EMI. If the delivered engine by the o.p. no. 1 and 2 suffers from congenital mechanical defect, the mental condition of the complainant as a purchaser appears unfathomable. This is because, he purchased the same for maintaining his livelihood and not for dumping the same in open light and air for wastage. Furthermore, plying of defective vehicle is also not safe for the passengers.
12. We are not attaching any importance to the contention of the complainant that the o.ps. delivered a 2nd hand vehicle as the meter showed coverage of 1800 and odd kilo meter. In fact, the chassis had to cover the same distance to reach Bengal from the place of the manufacturing plant.
13. Admittedly the complainant placed the vehicle before the o.p. no; 1 for removing the defects, as it developed various manufacturing problems within short period of its purchase. In para 7 ( page 4 ) of the affidavit in reply the complainant stated in detail that the vehicle was in the custody of the o.p. no. 1 for necessary repair of the inherent manufacturing defects. For such suspension of the movement of the vehicle his means for livelihood was tremendously affected, jeopardizing the payment of EMI. All his prayers to replace the defective vehicle went abegging before the o.ps.
14. We are to bear in mind that the complainant purchased the vehicle on payment of huge money taking loan from the o.p. no. 3 Bank to maintain his livelihood as he is an unemployed youth. It cannot be his luxury to lay his costly vehicle in open sun light and air for wastage and fight for redress shouldering the risk of heavy EMI. When the deficiency began to manifest, it was the duty of the suppliers to attend such deficiencies and malfunctioning of the system with due seriousness shunning the routine check obligations. The cavalier manner the o.ps. attended the allegations of the complainant is altogether unfortunate.
15. In spite of the so called routine repair to wear out the warranty period, the deficiencies continued to persist during the warranty period including the extended period. Naturally, the suppliers viz. o.p. nos. 1 & 2 cannot have any way escape from the rigours of law for gross deficiency in service and unfair trade practice. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 50 of 2014 ( HDF 50 of 2014 ) be and the same is allowed on contest as against the o.p. nos. 1 & 2 with costs and dismissed as against the o.p. no. 3 without costs.
The O.P. nos. 1, 2 jointly or severally be directed to refund the entire amount of Rs. 13,50,000/- to the complainant as realized as the cost of the vehicle within 30 days from the date of this order failing the amount shall carry interest @ of 12% p.a. till full satisfaction.
The o.p. nos. 1 & 2 jointly or severally do pay Rs. 1 lakh as compensation to the complainant for causing tremendous harassment and mental pain and Rs. 5,000/- as litigation costs within the period as above.
The o.p. nos. 1 & 2 be further directed to deposit Rs. 30,000/- to the Consumer welfare Fund.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( T.K. Bhattacharya )
President, C.D.R.F.,Howrah.
