BINOD KUMAR BHAWSINKA vs Tata Engineering and Locomotive Company Ltd.

THE complainant has claimed a sum of Rs. 5,13,286/- as compensation for sale of a defective vehicle by the opposite parties and for damages and compensation etc. for alleged deficiency in service.

THE brief facts of the case as stated are that the complainant had purchased a commercial "Tata Mobile" vehicle bearing Regd. No. CR- 02C-3505 on 6.9.1994 for Rs. 2,65,000/- on availing loan from a financial institution on usual rate of interest from the respondent (M/s. Telco Ltd., Bhubaneswar). After running the vehicle for eight months the vehicle developed problems like excessive heating and a repulsive sound from the engine. As such, complainant approached the Service Manager, TELCO at Bhubaneswar and also reiterated his complainant in his various letters and also by personal approach. THE complainant was advised to bring the vehicle to Bhubaneswar and hand over to opposite party No. 5 for repair and bill amounting to Rs. 11,287.31 was demanded for payment on 27.2.1996, on the ground, that the job undertaken were beyond the period of warranty. This was objected by the complainant stating that the vehicle was still under coverage of warranty. THEreafter, driving for only 20 kms., the vehicle again developed the same defects and the respondent (M/s. Telco Ltd.,) had to toe the vehicle to the garage of M/s. Cuttack Diesel, Cuttack for rectification of defects which was complied but in vain. Finally by letter dated 4.3.1996 after intimating that despite repairs the vehicle continued to give the same trouble the complainant filed the case before this Commission claiming various reliefs such as : 1. Replacing the defective vehicle Rs. 2,79,286/- 2. Payment made for repairing during warranty period. Rs.1,400/- 3. Expenditure incurred in bringing the vehicle for repair to BBSR from Barbil. Rs. 10,000/- 4. Expenditure on correspondence and frequent contacts. Rs. 10,000/- 5. For mental agony and harassment Rs. 1,00,000/- 6. For loss in business. Rs. 1,00,000/- Total Rs. 5,13,286/- The opposite party i.e. M/s. TELCO Ltd. and others has submitted a written notes of argument as under : (A) That the complainant being the proprietor of an industry and the vehicle being used for commercial purpose, the case is not maintainable in this Forum. (B) That, the complainant is not strictly coming under the term "Consumer". Hence the case is not maintainable. (C) That, the vehicle was brougnt beyond the warranty period for which the complainant was asked to pay for repairing charges.

We have heard the learned Counsel for both the parties at length and have carefully gone through the documents/materials on record along with the complainant petition and notes of argument filed by the learned Counsel of the respondent dated 28.9.2000.

We have carefully considered the entire case. There is absolutely no doubt in our mind that the complainant is a "Consumer" and fulfills all the conditions of a consumer. Since this is a sale out with warranty and there is a contract for effecting repairs or replace, the complainant being a party to the contract is a consumer entitled to file the complaint. Such consideration for the same stand included in the total price of the vehicle purchased and thus the complainant being a consumer, as defined, is entitled to the claim relief against the respondent (M/s. Telco Ltd.) as well. If the complainant was deprived of the use of the vehicle within 8 months from the date of purchase, he was definitely put to harassment and inconvenience. On going through the various letters of the complainant and the copy of the job card placed on record, we have no hesitation to hold that the vehicle had a inherent manufacturing defects for which it has to be totally replaced or the complainant is to be paid back the price he paid for the vehicle, for which relief he has prayed.

OUR attention is drawn to the Hon''ble National Commission''s decision in Amtrex Ambience v. M/s. Alpha Radios & Anr., it was argued that where the manufacturer/authorised dealer fail to rectify the defects during the warranty period, the same amounts to deficiency in service irrespective of the position whether the vehicle was used for commercial purpose or not. It was further argued that the complainant purchased the vehicle in dispute for his personal use and the same does not amount to commercial use by any stretch of imagination. The learned Counsel on behalf of the respondent, failed to produce any documents in reply to the facts pleaded in paragraph 6 of the complainant petition with some plea or other.

WE have carefully gone through the judgment of the Hon''ble Supreme Court reported in 1997 (6) Supreme 10, in the case of Telco Ltd. v. Gajanan and Manderkas, filed by the learned Counsel. Question is whether there is deficiency in service and we answer it in the affirmative reason being as follows : Admittedly the vehicle was purchased on 6.9.1994 and the period of warranty was for 18 months i.e. till 6.3.196. The letter dated 21.3.1996 of the Telco Engineer opposite party No. 1 proves that they received the letter dated 4.3.1996 of the complainant in time and this letter was within the warranty period. Therefore, it was legitimate for the complainant to insist for a thorough repair of the vehicle, free from any defect. Mr. Dhal, the learned Counsel for the opposite party No. 1 strenuously urged that it is because of poor maintenance and for carrying heavy load beyond the permissible limit the vehicle developed effect for which the opposite party is not to blame. We are unable to accept this contention of Mr. Dhal, because no genuine reason has been given as to why defects were not attended to in detail during the warranty period. In the present case both on facts and law the respondent does not stand any where. The complainant has claimed for damages such as bring the vehicle from Barbil to Bhubaneswar Rs. 10,000/- but no supporting document or receipt is filed. So also no documentary evidence for the amount spent for correspondence as well as loss in business, for which we disallow the relief. But in the complaint petition the complainant averred to have spent Rs. 13,000/- towards repairing charges, which has not been denied and so We accept the claim as correct and award the same. "The claim of Rs. 1,00,000/- for mental agony is excessive. From the various letters of the complainant We are satisfied that the complainant must have undergone mental stress and agony and we reasonably assess it at Rs. 25,000/- including a sum of Rs. 5,000/- towards the cost of litigation. We have not thought appropriate to award any interest on the amount of Rs. 2,79,286/- on the price of the vehicle, since the complainant being in possession of the vehicle was using the same for his private use and to attend to his business.

IN the result, the complaint is allowed. We direct the opposite party No. 1 to opposite party No. 5 who are held jointly and severally liable to pay the total amount of Rs. 3,17,286/- being cost of the vehicle and compensation of Rs. 25,000/- and Rs. 13,000/- towards repairing charges and Rs. 5,000/- as cost of litigation to the complainant within one month from the date of communication of the order failing which it will carry an interest at the rate of 18% per annum till the date of payment. The complainant shall deliver back the vehicle to opposite party on receiving the amount. Mr. Justice D.M. Patnaik, President-I agree. Dr. Arati Mohanty, Member-I agree. Complaint allowed.