(Delivered on 09/01/2020)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL  MEMBER.

1.         Appellant – Mr. Harpritsingh Jarnelsingh  Makode  has  preferred  the present appeal  challenging  the impugned  order dated 20/09/2014 passed by the  learned  District Consumer Forum, Chandrapur, in Consumer Complaint  No. 05/2012,  by which  the complaint  filed  by the  complainant /appellant    came to be partly allowed and  O.P. was directed  to  replace  the engine  of the truck  within  a period  of 45 days  and also to pay  compensation  of Rs. 10,000/- towards  mental and  physical harassment  and Rs. 5000/- towards cost of litigation.  (Appellant and respondent shall hereinafter be referred  to by their  original  nomenclature)

 2.         Short facts leading to the present appeal may be narrated briefly   as under:-

            Complainant –  Mr. Harpritsingh Jarnelsingh  Makode  claims  to be resident  of  Ballarpur, District Chandrapur . The complainant had purchased one truck from the O.P.No. 2- Jaika Motors Limited, Nagpur road, Chandrapur   who was the dealer  of   O.P.No. 1- Tata Motors Limited.  The O.P. No. 1 was renowned company dealing in  the sale  of heavy  vehicle. The complainant - Mr. Harpritsingh Jarnelsingh  Makode   had also taken  a loan of Rs. 18,59,161/- from Cholamandalum Investment  and Finance Company  and same  was to be repaid 46  instalments  of Rs. 53,800/- each.  The complainant had also  taken  possession  of the chassis   and thereafter  also incurred  expenses  of Rs. 1,25,000/- towards  preparing the  body of  the truck.  The complainant had alleged that engine of the truck was belonging to Cummins Company and was having the warranty of two years. The complainant  has alleged that  he was plying  the truck and by 31/05/2011 the truck had covered a distance  of only 18475 but despite  this the complainant had noticed  that   there  was  change  in the fluidity   of the engine oil. The complainant  thereafter, reported this fact to the  work shop  of the O.P.No. 2 but  the O.P.No. 2 informed that the engine would run smoothly when  the truck cover more kilometers. The complainant  has alleged  that  even  after  covering  of the  distance  of 5,000 to 6,000 kilometers  there was no  improvement  and there was necessity  to  change  the engine oil. The complainant thereafter spent an amount of Rs. 8,444/- for changing the engine oil.  After  this incident  also the  complainant  was required  to replace  the engine  oil on three occasions for  which  the complainant was  required to spend amount.  The complainant has contended that  on 11/12/2011 suddenly  the truck  stopped  on the  road  as the engine of the  truck  stop functioning and so the truck  of the complainant  was required  to be towed to the workshop  of the O.P.No. 2 at Chandrapur.  The complainant was thereafter informed that he will have  to spend an amount of Rs. 84,384 towards  repairs of the engine. The complainant was also given an option  of purchasing a new engine for Rs. 1,08,978/-. The complainant thereafter noticed that  the engine of the truck purchased  from  the O.P.No. 2- Jaika Motors was having manufacturing defect and O.P.Nos. 1&2 had  obtained  indulged  in unfair trade practice and so  the complainant  was constrained  to file  the complaint  under section 12 of the Consumer Protection Act, 1986 praying that  the direction  be given to the O.Ps to replace  the engine  without  seeking  expenses  or in alternative to refund  the  amount  Rs. 18,59,161/- along with interest  and also  Rs. 50,000/- towards  mental and physical  harassment  and Rs. 10,000/- towards cost of litigation.

3.         O.P.  Nos. 1 and 2 both have filed their written statement.  The O.P.No. 1 namely Tata Motors Limited has denied all the allegations made by the complainant in toto.  The O.P.No. 1 has contended  that  the complaint  itself  was not tenable  in law as  the complainant was  not  a Consumer  as he had purchased  the good namely  truck  for commercial  purpose.  The O.P.No. 1 has taken  a plea that  the complainant  himself  was  negligent  in as much as  he had failed and neglected to follow the guidelines given in the service book  recommended  for better  performance  of the vehicle. The O.P.No. 1 has also  contended  that  the complainant  had not brought  the truck for  first, second and fourth free  service  and also have  subsequent  service and on the contrary  had taken  the vehicle  to an unauthorised  work shop  of  one   A.K. Parashar Automobiles. The complainant was therefore not entitled for any relief as per terms of warranty. The O.P.No. 1 has also   taken  a plea that  the truck sold to the  complainant  was having  BS-III engine  which was of advanced nature  and there was  no manufacturing  defect as alleged  by the complainant.  Further, the complainant  himself  had not  sent the vehicle  for servicing  as required  by  the operator’s manual  and so  the complaint  is not tenable  in law and needs  to be dismissed.

 4.         The O.P.No. 2 namely M/s, Jaika Motors Limited   has also taken an identical stand and had denied the contents of the complaint.  The O.P.No. 2 has also  contended that  there was  negligence on the part of the complainant himself  as the complainant  had not  taken  proper care  of the vehicle  namely truck  as  required  and so the warranty  issued  by the  O.P.No. 2 was not applicable. As such complaint filed by the complainant was untenable in law and needs to be dismissed.

 5.         The learned District Consumer Forum, Chandrapur  thereafter went through  the evidence  affidavit filed  by the  complainant- Mr. Harpritsingh Jarnelsingh  Makode   as well as  by O.P.Nos. 1&2.   The learned District Consumer Forum also went through the documents which were placed on record as well as the written notes of argument  filed by the complainant as well as O.P. Nos.1&2.  After  appreciating  the evidence  adduced  on record  the  learned  District Consumer Forum came  to  the conclusion  that  the  O.P.Nos. 1&2 both had committed a deficiency  in service  and so the  O.P.Nos. 1&2 were directed  to replace the engine of  the truck within  a period of 45 days and also to  grant compensation  of Rs. 10,000/- towards physical and mental  harassment  and Rs. 5000/- towards cost of  litigation by passing  a detailed  order dated 20/09/2014.  It is against this order dated 20/09/2014 passed by the learned District Consumer Forum, Chandrapur that  the appellant/complainant – Mr. Harpritsingh Jarnelsingh  Makode  has come up in appeal.

 6.         We have heard, Mr. Kullarwar, learned advocate for the appellant/ complainant and Mr. Paranjape learned advocate for the respondent No. 2 and Ms. Shilpa Ghatole, learned advocate for the  respondent No. 1.  Mr. Kullarwar, learned advocate  for the appellant /complainant  has  pointed out , at the outset  that  the respondent Nos.1& 2 had  also preferred  an appeal against  the impugned  order passed  by the learned District Consumer Forum, Chandrapur dated 20/09/2014 but the same  has  came to be  dismissed in default and this fact has also not been  seriously  disputed by the  learned  advocate  for the respondents.  On the other hand,  Mr.  Paranjape  learned advocate for the  respondent  has submitted  before  us that  the respondents  have also  duly  complied  with the order passed by the  learned District Consumer Forum by replacing defective  engine with  a new one  and had also  informed  the complainant  regarding  this fact. However,  Mr. Kullarwar, learned advocate for the appellant/complainant   has rebutted  this contention  and has pointed out that  the appellant /complainant  was not only required  to   incur  huge expenses  towards repairs  of  engine but  further , the complainant  also  suffered a huge loss in his business  of transportation  which  was  his only source of his  livelihood. The learned advocate for the appellant /complainant has specifically pointed to the fact that not only the complainant -Mr. Harpritsingh  Makode   was required  to incurred  huge expenses  but   thereafter,  the complainant  was unable  to  ply the truck since  it was lying  idle  for want of  replacement of engine.  Secondly, Mr. Kullarwar, learned advocate for the appellant /complainant  has also drawn our attention  to the fact  that  though the  order regarding  replacement  of  engine  was passed on 20/09/2014  no steps were  taken  at all by  either  respondent No. 1- Tata Motors Limited or respondent No. 2- Jaika Motors Limited and it was only  in the year 2017  the respondents  complied  with the order, It is further  submitted by Mr. Kullarwar, learned advocate for the appellant /complainant  that  during  this  long  period  the truck was lying  idle  in open  air and thereby the entire  body of the truck got damaged, causing  not only monetary  loss but also physical and mental  harassment to the  appellant /complainant.  Appellant /complainant has also placed on record certain photographs to support this contention. Mr. Paranjape   learned advocate for the respondent has drawn our attention to one letter dated 17/05/2017 issued  by  M/s. Jaika Motors Limited and we have gone  through the same.  Mr. Kullarwar, learned advocate for the appellant/complainant  has submitted  that  all along the truck was lying  in custody of the respondent No. 2- Jaika Motors  but this aspect was not  taken into consideration  and only  the meager  amount of Rs. 10,000/-  was awarded as compensation  towards mental  and physical  harassment.  Mr. Kullarwar, learned advocate for the appellant/complainant has contended that  complainant  was entitled  for compensation  to the extent  of  value of  the engine or  Rs. 1,25,000/- towards  preparing the  body of the truck. But  we are of the view that  amount claimed  seems  to be on higher  side. No doubt  the amount  awarded  towards compensation  appears to be very meager  and  the appeal is restricted  to the  point  of enhancement  alone.  In such a situation  taking in to consideration  all the aspects  and also  the fact that  the  complainant  suffered loss  of business due to  truck lying  idle in  the custody  of the respondent No. 2,  we feel that  the  appellant /complainant  is entitled  for an amount  of Rs. 50,000/- by way of compensation  and  same would be meet the ends of justice. As such we are of the view that the compensation awarded needs to be enhanced from  Rs.10,000/- to Rs.50,000/- and Rs.15,000/- towards the cost of litigation. So far as  the other  findings are   concerned , we feel that  they  do not  call  for any interference  and so we pass the following order.

ORDER

i.          Appeal  is partly allowed.

ii.       Order dated 20/09/2014 passed by the learned District Consumer Forum, Chandrapur is hereby modified and O.P.Nos. 1&2 are directed to pay Rs. 50,000/- by way of compensation towards physical and mental harassment and Rs. 15,000/- towards cost of litigation instead  of Rs. 10,000/- and Rs. 5000/- respectively.          

iii.         Rest of the order passed by the learned District Consumer Forum, Chandrapur  is hereby confirmed. 

 iv.        Copy of order be furnished to both the parties, free of cost.