KARTIKESWAR PARIDA vs SAGAR MOTOR (P) LTD.

THE complainant in C.D. Case No. 48 of 1996 has filed this appeal being aggrieved against the orders dated 24.9.1996 of dismissal of the said C.D. Case by the District Forum, Dhenkanal.

THE complainant had filed the aforesaid case claiming damages for physical and mental suffering and financial loss against the opposite parties/respondent Nos. 1 to 3 and to direct opposite party No. 1 / respondent No. 1 to replace by a new one the Tempo three wheeler bare chassis purchased by him alleging deficiency in service against the respondents. The case of the complainant in brief is that he was an unemployed youth. He was taken as a beneficiary under P.M.R.Y. scheme of the Government for getting loan from the Bank authorities of Indian Overseas Bank, opposite party/respondent No. 3 to purchase a Tempo three-wheeler vehicle to earn his livelihood. The opposite party No. 2/respondent No. 2 is a manufacturer of light commercial vehicles including Tempo three-wheeler. The respondent No. 1 is an authorised dealer of respondent No. 2. The complainant/appellant obtained quotation of Tempo Three-wheeler Bare Chassis Worth Rs. 1,08,808.54. The P.M.R.Y. scheme was for Rs. 95,000 which was sanctioned and disbursed by respondent No.3. As the quotation rate of Tempo three-wheeler was more than the sanctioned loan amount, the complainant deposited the excess amount in his Bank account and the tempo was purchased by him through respondent No. 3 from respondent No. 1, who is the authorised dealer of respondent No. 2. Complainant received the tempo at an odometer reading of 1592 kms. on 10.10.1995. He got the first free service at a cover age of 2552 kms. on 13.11.1995. After this service the tempo gave some trouble in the gearbox and difficulty was experienced in plying the vehicle. The complainant, therefore, took the tempo to the Service Centre of respondent No. 1 on 11.12.1995 and respondent No. 1 had told him to rectify the defect in the gearbox and, if necessary, the gearbox would be replaced within seven days. But in spite of repealed request, respondent No. 1 did not hand over him the tempo in working and perfect condition since then. He has requested in writing dated 26.12.1995 (Annexure-G) to respondent No. 2 copy to respondent No. 1 to replace the tempo with a new one or with a tempo trax on receipt of additional amount from him. On receipt of this letter, respondent No. 2, advised respondent No. 1 and the Service Engineer at Bhubaneswar to remove the delect on top priority basis. As per letter No. P043 dated 12.1.1996 (Annexure-1) respondent No. 1 intimated him that there is a crack in the gearbox due to misuse of the tempo which is not correct. On the other hand, there was a major defect in the gearbox for which there was crack. The respondent No. 1 did not tell him to produce the papers relating to the tempo on 11.12.1995. However he produced the same before him on 16.1.1996. Still then neither the defect in the tempo was removed free of cost as promised under the warranty nor it was replaced by a new one for which respondent No. 1 is solely responsible. Complainant is in loss as the tempo remains with him. Respondent No. 3 had disbursed the loan causing delay. In this circumstances as respondent No. 3 is pressing him hard to repay the loan, he is being harassed. Therefore, he filed the C.D. case for the aforesaid relief.

All the three respondents/opposite parties have filed written version separately in the C.D. case admitting about purchase of a tempo three-wheeler bare chassis from respondent No. 2 through its dealer-respondent No. 1 being financed by respondent No. 3 on loan basis and deposit of some amount by the complainant/appellant. Respondent Nos. 1 and 2 admit about free service and change of gear oil, mobile, etc. twice i.e. on 13.11.1995 and 11.12.1995 of the tempo being produced by the appellant within the warranty period of six months. Respondent Nos. 1 and 2 say that being satisfied with the free service given by the Service Centre of the authorised dealer-respondent No. 1, being the satisfied, complainant took back the tempo. Neither any complaint by the complainant was made nor any defect was detected in the tempo during service on 13.11.1995 and 11.12.1995. Thereafter on 13.12.1995, appellant brought the tempo to the Service Centre and complained. Respondent No. 1 got its gearbox opened and found there was a crack in the gearbox housing and some other parts were damaged. As it was a major damage of the gearbox housing found out after the free service on 11.12.1995 at which time the tempo was perfectly all right, respondent No. 1 is convinced that such crack and damage are due to misuse and mishandling of the tempo. So, he asked appellant to produce the service book and other documents relating to the tempo in order to rectify the defects for the shake of goodwill. But though appellant went away leaving the tempo in the workshop, yet did not produce the service book and other documents even if he was subsequently requested in writing to produce the same. On the advice of respondent No. 2, respondent No. 1 repaired the gearbox housing in absence of cooperation of the appellant. Still then, appellant did not take the tempo as yet even in spite of registered letter issued to him. They have later on also demanded space charge @ Rs. 50 per month as appellant has unnecessarily occupied a space of the service centre by allowing his tempo to remain there. In respect to payment of repair charge, they say that until the parts are examined chemically as there is suspicion about misuse of the tempo, they have not decided whether they would demand charges for such repair or not. Respondent No. 1 insists that unless the gear-box housing is hit negligently with any hard substance no crack would appear there and rules out the allegation of manufacturing defect in the gear-box so as to replace the said tempo by a new tempo. Thus both respondent Nos. 1 and 2 have challenged the claim of the complainant denying to have caused deficiency in service to him and they deny complainant a consumer under them. Respondent No. 3 denied to have caused unreasonable delay in sanctioning and disbursing loan in favour of the complainant as alleged against him. All the respondents had claimed for the dismissal of the C.D. case.

THE District Forum gave findings that the complainant/appellant is a consumer under the opposite party/respondents, but the respondents have caused no deficiency in service to the appellant on the ground that respondent Nos. 1 and 2 have not avoided or neglected to take necessary care of the tempo three-wheeler, when it was produced for servicing during the warranty period i.e. on 13.11.1995 and on 11.12.1995 and even, have rectified and removed the defect when it was produced on 13.12.1995 complaining breaking of gearbox housing. THE District Forum held that the dealer and manufacturer - respondent Nos. 1 and 2 are not responsible for the breaking of gearbox housing and respondent No. 3 has not unnecessarily consumed time in sanctioning and releasing the loan amount as was alleged against him. This finding of the District Forum has been challenged by the complainant / appellant in this appeal stating that though consistent complaint had been made in respect to the manufacturing defects in the tempo, respondent Nos. 1 and 2 have not removed the same and District Forum has not properly applied its mind though several decisions are cited in this respect. The District Forum gave its finding basing upon certain documents filed from the side of the respondent, which are found by the appellant after the final order is passed in the C.D. case, as manufactured ones to verify which no opportunity was given to him when the same were filed. Even, appellant was not given opportunity to be heard before final order is passed. According to the appellant, after sale service as has been guaranteed in the warranty card, has not been given in respect to the tempo.

WE have heard the learned Counsel appearing for the parties and perused the documents and affidavit of Sri Rohit Kakar filed in the C.D. case. We find from the order sheets and the record of the aforesaid C.D. case that the Counsel of all the parties of the case were present and had taken part in arguing their respective case on 3.9.1996 on which date the hearing of the case was concluded and orders was reserved. Before the argument was taken up serving copy thereof on the Counsel of the complainant the opposite party/respondent No. 1 had produced copies of three job cards dated 13.11.1995, 11.12.1995 and 13.12.1995 and true copy of letters dated 1.4.1996 and 12.1.1996. The affidavit of Sri Rohit Kakar was also filed on 3.9.1996. At the time of filing these documents, the complainant/appellant did not challenge the genuineness of the same. So also, did not express his intention to adduce evidence by any means before final hearing of the matter was taken up. Though the complainant/appellant admits to have taken tempo on 13.11.1995 and 11.12.1995 for service and on 13.12.1995 complaining crack in the gearbox yet he has not produced the job cards. On the other hand, opposite party No. l /respondent No. 1 has produced the same on 3.9.1996 whose genuineness was not challenged at that time. The District Forum has relied on these documents. In this end of the view we find no force when appellants claims these documents as manufactured ones and he was not given sufficient opportunity to examine the same to adduce evidence or to be heard before hearing of the case was concluded. Now the next question arises as to whether the respondent Nos. 1 and 2 have neglected in providing necessary service in respect to said tempo and as to whether there is crack in the gearbox due to manufacturing defect in the tempo. Relying upon the job cards dated 13.11.1995 and 11.12.1995, the District Forum observed that except routine charge of mobil oil, gear oil and gear adjustment, no other major repair or change of any part of the tempo were made during those days and the complainant had taken over the tempo being satisfied about the servicing. He had made no other complaint in respect to the tempo, the major defect of gearbox crack and therefore question of manufacturing defect in the tempo does not arise. The District Forum also observed that though on 13.12.1995, the complainant again produced the tempo complaining breaking of gearbox, which respondent Nos. 1 and 2 found to have been caused by mishandling of the tempo and requested complainant to receive the tempo where cracked gearbox has been repaired by them yet complaint did not turn up. Therefore, the District Forum held that respondent Nos. 1 and 2 have caused no deficiency in service to the appellant.

ON careful examination of the case of the parties with reference to the documents and evidence in affidavit filed in the case, we find the District Forum has lightly arrived at a finding that no negligence or deficiency in service has been caused by respondent No. 1 since the crack in the gear-box was due to the misuse and mishandling of the tempo by the complainant and there is no manufacturing defect in it.

WHEN the tempo had run 2258 km., it was brought for servicing on 13.11.1995 and when it ran 3941 km., it was brought for servicing on 11.12.1995 to the Service Centre of respondent No. 1 as is seen from the copies of the job cards dated 13.11.1995 and 11.12.1995. Complainant has produced service coupons (Annexures-E and F) in that respect whereas he does not produce job cards of these dates. Nothing is there to doubt about the genuineness of these two job cards. Complainant has not complained about any major defects, crack in gearbox or manufacturing defects in the tempo during those days. Undisputedly, complainant produced the tempo in the Service Centre of respondent No. 1 one day after the second service i.e. on 13.12.1995, when gearbox was found broken and tempo had covered 3981 kms. The complainant has signed in both these job cards. Thus when the tempo was produced on 13.12.1995 it had run 40 kms. from 11.12.1995. Had the gearbox of the tempo was initially broken or cracked it would have been noticed when the tempo was started running and during the aforesaid first and second time service and would not have covered distance of 3981 kms. till it was brought to Service Centre on 13.12.1995. Therefore, we have no hesitation to hold that the crack or breaking of the gearbox of the tempo is not a manufacturing defect and it has occurred due to misuse and bad handling of the tempo by the complainant after second service on 11.12.1995. Coming into the question of negligence by the respondents, it is evident from the copies of the letters dated 12.1.1996 and 1.4.1996 of respondent No. 1 to the complainant/appellant is that in spite of repeated request of respondent No. 1, complainant is not turning up to take back the tempo which has been repaired in respect to crack gearbox long back. Complainant admits not to have received back said tempo. We find the complainant has no justifiable ground not to take delivery of the tempo from respondent No. 1. The respondent No. 3 is found to have sanctioned the loan in favour of the complainant on 5.8.1995 after observing necessary official inquiry and formalities. Soon thereafter, he has disbursed the loan on 9.8.1995. Therefore, the respondents have caused no deficiency in service to the complainant. In these ends of the view, we find there is no merit in the appeal.

Therefore, the appeal is dismissed on contest against the respondents without cost. Records received from the District Forum may be sent back forthwith. Appeal dismissed.