IN THE COURT OF DISTRICT CONSUMER REDRESSAL COMMISSION

WEST SINGHBHUM AT CHAIBASA

Present: - 1. Sri Vijai Kumar Sharma, President,

                 2. Sri Rajiv Kumar, Member.

                 3. Smt.Deoshree Choudhary, Member,

C. C. Case No.13/2012

Chaibasa, Dated: the 29^thJuly 2022

Dhiraj Kumar Gupta son of Late K. M. L. Gupta, resident of Bank Road Manoharpur, P.O. & P.S. Manoharpur, District West Singhbhum, Jharkhand………...Complainant

Vs.

1. Sarla Automobile, Ved VaaysChowk, Rourkela, Odisha.
2. Tata Motors Ltd. Tin Hath  Naka, Gyan Sadhna College Road, Thane 400604…………………………………………………..…Opposite Parties

Advocate for Complainant……………Sri A. K. Sao& Sri S. K. Gupta, Advocates

Advocate for O.P. No.1………………Sri G. D. Mundhra, Advocate

Advocate for O.P. No.2……………....Sri L. N. Mundhra, Advocate

Judgment

This case has been filed by the Dhiraj Kumar Gupta against Sarla Automobile, VedVaaysChowk, Rourkela, Odishaand Tata motors ltd, Tin hath Naka , Gayan Sadhna College Road, Thana-400604 for an award of Rs.800000.00 including cost of vehicle, Compensation for financial and mental loss cause to complainant, litigation cost and other relief if any to the complainant for deficiency of service.

Briefly stated case of the complainant Dhiraj Kumar Gupta son of Late K. M. L. Gupta, resident of Bank Road Manoharpur, P.O. & P.S. Manoharpur, District West Singhbhum, Jharkhand is that he has purchased a Tata Diesel Pickup Van Model No.207 DI from O.P. No.1 Sarla Automobile, named above after obtaining a loan from O.P. No.2 vide Loan Agreement No.10174 dated 26.09.2006 and after signing the loan agreement vehicle was delivered at Manoharpur within the jurisdiction of this court.  Further that after purchase the vehicle was got registered in DTO Office and registration number got allotted as JH05Q-2903 and the same was hypothecated to Tata Motors Ltd.  Further that at the time of purchase complainant was forced to take 3 annual maintenance contract bearing No.400142510010/20/30 and under the aforesaid maintenance contract complainant was assured by O.P. No.1 that maintenance of the vehicle from 0 to 50000 / 100000 / 150000 Kilometer would be done by them free of cost and the annual maintenance contract was valid for the period from 26.09.2006 to 28.06.2007-08-09 respectively.  Further that in the month of May 2009 while 3^rd AMC was still valid vehicle of the complainant developed some problem and he took the vehicle in the repairing shop of O.P. No.1 for servicing as 3^rd AMCNo.400142510010/20/30 was valid till 28.06.2009 and complainant was entitled for free service of the vehicle by O.P. No.1 and accordingly complainant left the vehicle in the premises of O.P. No.1.  Further that after receiving letter from O.P. No.1 complainant visited O.P. No.1 Office and came to know that O.P. No.1 has denied to carry out the repair of vehicle free of cost with allegation that due to complainant fault and negligence in maintaining the vehicle, vehicle has been broke down.  Then complainant issued a notice to O.Ps. on 24.06.2009 under U.P.C. from Manoharpur requesting them to resolve the dispute and repair the vehicle under AMC contract but complainant did not receive any response from O.P. then again complainant sent reminder to O.P. sunder Postal Certificate but in vain.  Then last reminder was sent by complainant to the O.Ps. on 11.08.2010 for resolving the issues, failing which complainant will be forced to take resource of law, when no response was found by the complainant from O.P. side and his vehicle was still stationed at the workshop of O.P. No.1.  Then finding to O.P. No.1 & 2 defaulter and also feeling pressure by the O.P. No.2 for clearing the loan amount complainant filed instant case in the court and also finding the O.P. No.1 as defaulter and not giving proper service to the complainant rather caused deficiency of service on part of the O.P. and accordingly complainant has prayed for an award of Rs.800000.00 including financial and mental loss caused to complainant, litigation cost and other relief.

     After admission notice was issued to O.Ps. who have appeared in this case and written-statements has been filed separately on behalf of both O.Ps.

     On perusal of the written-statements / show-cause filed on behalf of the O.Ps. it appears that both  parties have taken legal ground as well as factual ground out of which some grounds are common in both written  statements and as per the averement of the pleading of O.Ps. it appears that they have taken technical grounds also with intension to contest the case.  So far as legal grounds are concerned both parties have stated that case of the complainant is not  maintainable either in the eyes of law or on facts rather instant case has been filed with malafide intention to harass the O.Ps. rather there is lack of truth in the averement stated in the complaint petition.  Further that case of the complainant suffers from the defect of mis-joinder and non-joinder of necessary parties.  Further it is the complainant who has committed negligency in driving the vehicle in question as well as maintaining the same as per the term and condition of the motor vehicle manual as well as term and condition of AMC.  Further that complainant is not a consumer within the meaning of the term consumer as define under section 2 (1) of the Consumer Protection Act 1986.  Particularly because the vehicle in question has been used for commercial activity in order to generate profit and vehicle has already covered more than 102070 kilometer within a short span of approximately 33 months therefore extensive uses of the vehicle in question establishes that vehicle has not been used for personal purpose.  Further factual ground has been taken by the O.Ps. that on 01.04.2009 representative of the complainant namely Naresh Mahato brought the failed parts of vehicle i,e. crown wheel pinion at the workshop of O.P. No.1 in dismantle condition because as  per the version of representative vehicle was broke down at Chaya Nagar near Manoharpur in  the state of  Jharkhand and the damaged part where removed from the vehicle and brought  to the workshop situated in Odisha and job card was prepared by the Service Engineer in the workshop and service engineer estimated the cost of spare parts and  repairing to the tune of Rs.20000.00 approximately and problem at the vehicle was not covered under the AMC and accordingly a  letter was issued by the workshop to the complainant rejecting the AMC free maintenance, free service and that letter was issued by the complainant thereafter representative of the complainant left the workshop assuring to come back with money soon, but after two days complainant brought the vehicle to the workshop by towing.  Since the problem occurred in the vehicle  was not covered under AMC so complainant was intimated that the job will be done on payment basis therefore complainant was asked to pay the charge but rather than paying the charge complainant left  the vehicle in the premises of workshop then again complainant was informed by the O.P. No.1 dated 07.06.2009.  As a matter of fact vehicle was left by the complainant in the workshop of O.P. No.1 with intention to hide the vehicle in order to avoid the seizure by finance company on account of nonpayment of loan amount.  Further that damaged part were repaired by O.P. No.1 within a day without any deficiency of service but complainant did not take the vehicle after paying the intimated amount of Rs.20000.00 while as a prudent man or prudent owner of the vehicle nobody will abandon the vehicle for several years for repairing cost 20000.00 only.  Further that conduct of the complainant itself shows that complainant was negligent and he was solely responsible for his conduct and damages if any.  Further O.P. No.1 has stated that complainant is liable to pay the watch and ward charges of the vehicle @ Rs.75.00 per day from 03.04.2009 till the release of the vehicle from the workshop.

     So far as written statement of O.P. No.2 is concerned it has been stated on behalf of O.P that answering O.P. is only manufacturer of various type of commercial vehicle and passenger cars and is widely acclaimed for its class and quality.  Further that there are so many authorized dealers’ service centers who operates and supports O.P. No.2 and they have excellent workshop setup for sales and servicing of commercial vehicle which are manned by qualified and experienced personnel, so answering O.P. is not responsible for defect and deficiency of service caused by the dealer or service center.  The O.P. No.2 is only responsible by the term and condition of warranty policy applicable for the vehicle.  Therefore answering O.P. has denied all the allegation lavelled in the complaint petition.  O.P. No.2 has also alleged that complainant was negligent in maintaining the vehicle and plying the vehicle without checking engine oil, other oils kept in other places for running the vehicle in question.  So answering O.P. can’t be held liable for any independent act, omission, committed by other O.P. because act of one O.P. and other O.P. can’t be held vicariously liable.  Further another legal ground has been taken by O.P. that complainant cannot file case as owner of the vehicle, because vehicle was hypothecated from financer and therefore as long as the vehicle is under the hypothecation, financer is the owner and beneficiary is not having any locus-standi to file the instant complaint case  Further that no cause of action has arised to the complainant within the territorial jurisdiction of the present court and finally both O.Ps have made prayer to reject the complaint case with exemplary cost.

     In support of the complaint case complainant has filed his affidavited evidence as well as documentary evidences which are as follows:-

1. Xerox Copy of Certificate of Registration of Jharkhand State of Vehicle No.JH05Q2903 which has been marked as exhibit 1.
2. Xerox Copy of AMC Card bearing No. 4001425100101 dated 28.08.2007 which has been marked as Exhibit 2.
3. Xerox Copy of AMC card bearing No.100142510020 dated 28.06.2008 which has been marked as Exhibit 3.
4. Xerox Copy of AMC card bearing no.400142510030 dated 28.06.2009 which has been marked as Exhibit 4.
5. Xerox Copy of AMC of statement of account of AMC No. 400142510030 which has been marked as Exhibit 5.
6. Letter issued by O.P no.1 bearing reference no.SA/WS/AMC/0023/2009 dated 07.06.2009 which has been marked as Exhibit 6.
7. Original Copy of letter issued by Complainant to O.P dated 24.06.2009 which has been marked as Exhibit 7.
8. Certificate of posting of letter dated 24.06.2009 which has been marked as Exhibit 7(A).
9. Original copy of letter issued by complainant to O.Ps dated 16.12.2009 which has been marked as Exhibit 8.
10. Original copy of certificates of posting of letter dated 16.12.2009which has been marked as Exhibit 8A and 8B.
11. Original copy of letter issued by the complainant to O.Ps date 11.08.2010 which has been marked as Exhibit 9.
12. Original copy of certificate of posting of letter dated 11.08.2009 which has been marked as Exhibit 10 and 10 A.

     On the other hand one Rajesh Kumar Das AGM (Legal) and posted at Tata Motors Ltd. has furnished his affidavited evidence in support of the written statements filed on behalf of the O.P. No.2.  Similarly one Prabhat Kishor Swain has also filed his affidavited evidence in support of the show-cause filed on behalf of O.P. No.1 after hearing arguments of both sides case has been fixed for judgment. Further evidence adduced on behalf of the complainant as well as O.Ps. will be basis for finding in this case.

FINDING

     On perusal of the case record we find that complainant has stated in his affidavited evidence that he is the owner of the vehicle Tata Diesel Pickup Van Model No.207 DI bearing No.JH05Q-2903 and the vehicle was hypothecated by Tata Motors Ltd. as vehicle was purchased through loan given by the Tata Motors Ltd. vide loan Agreement No.10174 dated 26.09.2006.  Further that above vehicle was also covered by Annual Maintenance Contract bearing No.400142510010/20/30 and as per the term and condition of the AMC maintenance of the vehicle was bed done from running of vehicle i.e, from 0 to 50000 kilometer first service up to 1 lakh kilometer second and 1.5 lakh kilometer third service and service has to be provide free of cost and above AMC contract was valid from 26.02.2006 to 28.06.2007/08/09 respectively and vehicle was covered under AMC up till May 2009 and during validity  period of AMC vehicle of the complainant developed some problem and vehicle was taken to the repairing shop in the workshop of the O.P. No.1.  Further that since AMC No.400142510030 was valid till28.06.2009 when vehicle developed some problem and accordingly he requested the O.P.No.1 to repair and service his vehicle free of cost but O.P. No.1 refused to repaired the vehicle free of cost with allegation that due to fault of the complainant and negligence in maintaining the vehicle problem tookplace in the vehicle and that cannot be repair free of cost.  Then complainant wrote a letter to O.P. No.1 for repairing the vehicle under AMC scheme but in vain.  Then complainant has filed instant case for required relief.

     On perusal of  documentary evidence we find that photocopy of the certificate of registration of vehicle in question has been filed which shows that complainant is owner of the vehicle (exhibit 1).  Exhibit 5 i.e, photocopy of the service chart of the vehicle done through AMC scheme has been filed and that service was done up to 07.03.2008.  It also shows that expiry date of AMC scheme was 28.06.2009.  Exhibit 6, 7 and 8 are letters written by complainant to O.Ps. with request to repair the vehicle and resolve the disputes regarding vehicle.  Exhibit 6  relate 5 with the letter issued by O.P. No.1 Sarla Automobile to complainant with information that although vehicle in question is covered under AMC scheme but as per the observation of the mechanic  vehicle was broke down as no oil was found in the rear axle even 100 gram oil was  not found.  Hence due to negligence of complainant the parts were damaged and seized.  Further that after November 2008 no service was done nor any checkup was done by the any authorized workshop.  Further that due to poor maintenance and negligent driving of the vehicle without oil, parts where damaged and repair cost come to the tune of Rs.20000.00.  So job of repair will be done on payment basis and further complainant was informed for taking necessary action.

     On perusal of the show-cause it has been stated by both parties that case of the complainant suffers from the defect of mis-joinder of party and non-joinder of necessary party because party who has done AMC of vehicle in question has not been made O.P. in this case further that case of the complainant is also barred from the law of limitation because as per section 24 (A) Consumer Protection 1986 every case should be filed in the court within two years from the date of cause of action.  Further that cause of action of this case is 07.06 2009 when O.P. has refused to repair the vehicle free of cost and case has been filed by the complainant on 11.06.2012 which is clearly after passing of two years i.e after 11 months from the passing of two years.  Further case has been filed without any condonation of delay petition under Limitation Act.  So clearly case of the complainant is barred by law of limitation.  Further it has been mentioned in show-cause by O.P. that cost of the vehicle was shown Rs.750000.00 and as per estimate of mechanic who has checked the vehicle repair cost came only Rs.20000.00 and instead of paying the repair cost and taking back vehicle complainant has left the vehicle in the premises of workshop of O.P. No.1 and who is still keeping the vehicle of complainant which cost Rs.75.00 per day as keeping of vehicle charge so complainant should be directed to pay the O.P. No.1 Rs.75.00 per day as parking and keeping charge of the vehicle.  Further it has been stated that as a prudent man complainant should have paid service charge and thereafter he should have filed instant case against the person who has covered this vehicle under AMC scheme further that contesting O.Ps. are not responsible for giving any compensation etc to the complainant in this case.  It is worthy to mention that both show-cause has been supported by the employee of the O.Ps. by filing affidavited  evidence in this case and no any objection has been raised by the complainant on the affidated evidence of the O.Ps.

     It is admitted fact that vehicle in question of the O.P. was covered under AMC scheme which was valid till 28.06.2009 and free of cost maintenance was refused by O.P. No.1 on 07.06.2009.  So we agree that keeping in view the price of the vehicle and estimate of repairing price given by O.P. No.1 who is not the person, who has covered the vehicle under AMC.  So one should have firstly paid estimated cost and thereafter case should have been filed against that person or party, who covered the vehicle under AMC scheme and this fact has clearly been disclosed by the O.Ps. that case is defective due to non-joinder of O.P. despite that no step has been taken on behalf of the complainant to remove such defect.  So we agree with the submission of O.Ps. the case of the complainant suffers from the defect of non-joinder of necessary party.

     Further so far as ground of limitation is concerned on perusal of the case record it is clear that complainant has filed this case before this court on 11.06.2012 and keeping in view the exhibit 6 which is rejection letter sent by the O.P. No.1 informing the fact that vehicle will not be repaired under AMC scheme rather payment will have to be made by the complainant for servicing the vehicle and letter was issued on 07.06.2009 so certainly cause of action for the instant case arises in favour of the complainant on 07.06.2009 and as per the provision of the Consumer Protection Act complainant should have filed this case within 2 years i.e, within 07.06.2011.  While case has been filed by the complainant on 11.06.2012 which is clearly after passing of 2 years.  Moreover no any condonation petition has been filed by the complainant to condone delay of this case.

     On the basis of above discussion and finding we have arrived at the reasoned conclusion that complainant has not made party to that person who has put his vehicle under AMC scheme rather he has made O.P. in this case to manufacturer of the vehicle as well as to the person who has sold the vehicle in question to the complainant and surprisingly defect of non-joinder of necessary party has not been removed by the parties by the complainant.  After disclosure of this fact by the parties through their show-cause similarly we find that instant case was filed by the complainant after passing of 2 years from the date of cause of action without any condonation petition. So finally we are of the view that case of the complainant suffers from the defect of non-joinder of necessary parties as well as case is also barred by the law of limitation as mentioned in Consumer Protection Act.  Hence complainant is not entitled to get any relief from the O.Ps. in this case rather case of the complainant is fit for dismissal.

     Accordingly it is therefore.

ORDER

     That the case of the complainant is dismissed on contest but without cost.  Let copy of this judgment be furnished to both parties free of cost for their information.

    (Rajiv Kumar)             (Smt. Deoshree choudhary)         (Vijai Kumar Sharma)

        Member                                  Member                                     President