Heard learned counsel for the appellant. None appears for the respondent.
2. Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.
3. The unfolded story of the complainant is that the complainant being owner of vehicle bearing Registration No. OR-09G-1807 incurred loan from Tata Motors Finance Limited by hypothecating documents on 22.11.2005. It is alleged inter alia that on 28.11.2005, the complainant deposited Rs.1,39,682/-. Thereafter, the vehicle was purchased from OP No.1. After few months of purchase, on 6.1.2006 the vehicle gave trouble and it was repaired at Rashmi Motors, Jagatpur on 6.1.2006 by replacing fuel pump. There was also starting problem for which complainant bears the expenses. On 24.1.2006 the vehicle was again repaired on payment of Rs.3,000/-. On 7.2.2006 again starting problem came to the vehicle and complainant has repaired the same. Finally, complainant has taken the vehicle to the OP for repairing who demanded Rs.9,104/- which was paid by the complainant. Complainant informed OP No.1 but no response was received. So, the complaint was filed.
4. OP No.1 filed written version stating that the complaint is not maintainable. According to him on 8.7.2006 the fuel pump was not functioning for which it was brought to OP No.2 for repairing. Since payment has been made on the items which were not covered by the warranty, there is no any deficiency in service on their part. Apart from this, OP No.2 pleaded that complaint should be dismissed for non-joinder of necessary parties. So, there is no any deficiency in service on their part.
5. After hearing both sides, learned District Forum passed the following order:-
“xxx xxx xxx
The complaint petition is allowed and we direct the OP No.1 to pay Rs.20,000/- as compensation to the complainant and Rs.5,000/- towards litigation expenses within one month from the date of receipt of this order.
1. We direct the OP No.1 & 2 to refund the money charged for repair within the warranty period.
2. We direct the OP No.1 & 2 to replace the fuel pump with a new one and repair the vehicle of the complainant within one month from the date of receipt of this order.
3. We make it clear and direct that the complainant shall not be charged with any interest etc. on the defaulted installments amount during the period the vehicle underwent mechanical trouble. The installments due during the period shall not be treated as arrear. In view of the above findings, the ends of justice shall properly serve if the installments so due shall be paid by the complainant afresh within one month from the date of replacement of fuel pump and repair of the vehicle as ordered. The OP No.1 accordingly is directed to rephrase the repayment schedule of installment due.”
6. Learned counsel for the appellant submitted that the learned District Forum passed the impugned order by not following the written version filed by OP No.1. According to him, warranty does not continue for replacement of fuel pump. Moreover, he submitted that the direction at Sl.No. 3 is not against OP Nos. 1 and 2 but against Tata Motors Finance Limited who is not a party in this proceeding. So, he submitted that the case should be dismissed for non-joinder of necessary party. Apart from this, he submitted that the impugned order is illegal and improper and it should be set aside by allowing the appeal.
7. Considered the submission of learned counsel for the appellant and perused the DFR including the impugned order.
8. It is admitted fact that the complainant has purchased the vehicle from OP No.1 on payment of due consideration. It is admitted fact that the complainant has purchased the vehicle by taking loan. It is not in dispute that the vehicle was reported to have starting problem on 6.1.2006 and it was also repaired by OP No.1. It also admitted fact that on 24.1.2006, 29.1.2006 and 24.2.2006, there are continuous defects noticed on the vehicle. It is a fact that the vehicle was covered under the insurance policy for which question of directing the concerned finance company not to charge any interest is out of context in the present case. After consideration of all the repeated defects in the vehicle there is reason to believe that the vehicle has manufacturing defect. There is no order to replace the vehicle but there is deficiency in service on the part of OP No.1 for not having removed the defects. It is reiterated that there is deficiency in service for repairing the vehicle time and again. The warranty does not contain the fuel pump to be replaced. Therefore, the direction to replace the fuel pump with a new one without any charge cannot be sustained in law. The job card shows that no payment has been made while the vehicle has been attended by the authorized dealer for repairing. Therefore, question of refund of money does not arise. Of course, there is payment made to OP No.2 for repairing of the vehicle and OP No.2 is liable to refund the money if at all any but no appeal has been preferred by him. Since OP No.2 has no relationship with OP No.1, we do not find any reason to ask jointly return that amount by OP Nos. 1 and 2.
9. In view of aforesaid discussion, we find that finding in the impugned order is confirmed with regard to the defect in the vehicle surfaced time and again. Therefore, he has sustained mental agony and harassment. Hence, by confirming the impugned order, we hereby modify the impugned order by directing OP No.1 to pay Rs.20,000/- as compensation to the complainant and Rs.5,000/- towards litigation expenses but rest of the impugned order being not according to law are hereby set aside against OP No.1/appellant. Since OP No.2 has not filed any appeal, the order against OP No.2 remained unaltered. No cost.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
