APPEARED AT THE TIME OF ARGUMENTS For the Appellant Mr. Manoj Kumar Das, Advocate -2- For the Respondents 1 3 : Mr. Aditya Narain, Advocate Ms. Sonia Dhamija, Advocate Mr. Satyam Dwivedi, Advocate For the Respondents 4 & 5 : Ex-parte PRONOUNCED ON : 16 OCTOBER 2017 th O R D E R PER DR. B.C. GUPTA, MEMBER This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 04.05.2009, passed by the Odisha State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) in consumer complaint No. 18/2001, vide which, the said complaint was ordered to be dismissed and it was concluded that the vehicle in question, did not suffer from any manufacturing defect.

2. The facts of the case are that the complainant Kanchanmani Devi, who is now represented by her legal heirs (LRs) purchased a TATA 407/31 CLB model truck from M/s. TATA Engineering & Locomotive Company Limited, now known as TATA Motors Limited, for a total sum of 3,40,141.36ps by raising finance from the Opposite Party/OP-5, Balasore District Central Cooperative Bank, vide invoice No. 12598, and at that time, the odometer reading of the vehicle was 4699 km only. The warranty period for the vehicle was stated to be 36 months, but the truck developed crack in the chassis, when the odometer reading was 63180 km. It has been alleged in the consumer complaint that the vehicle could not be used for carrying materials and hence, the complainant was put to huge loss. She was not in a position to repay the loan taken from the Bank and was unable to pay the salary of the staff as well. A number of representations were sent to the OPs, requesting for replacement of the vehicle, but they did not take any action on the same. Thereafter, a legal notice was sent to the OPs, in response to which, they desired to have inspection of the vehicle. The OPs asked them to bring the vehicle to M/s. Rashmi Motors, Jagatpur, but it was not possible to do so, as the vehicle was in a damaged condition. The complainant filed the consumer complaint in question, seeking directions to the OPs to pay them a sum of 10,90,144.36ps. including compensation for the loss suffered for non-running of the vehicle and for mental agony etc. A direction was also sought for the OP-5 Bank, for not insisting on the recovery of loan till the disposal of the consumer dispute.

3. The complaint was resisted by the OP TATA Motors by filing a written version before the State Commission, saying that the claim made by the complainant was fictitious. Even if the vehicle had developed a crack in the chassis, the same could have been brought for inspection and the concerned part replaced under the warranty, but the complainant did not bring the vehicle for inspection, as the claim was false. The OP further stated that the vehicle was being used for commercial purpose and hence, the complainant did not come under the definition of consumer. The OP also stated that the warranty for the vehicle was 18 months from the date of purchase and the said warranty was over when the consumer complaint was filed. They further stated that the vehicle was in a running condition and there was no truth in the consumer complaint.

4. The State Commission vide their order passed on 21.06.2004, allowed the consumer complaint and directed the OP TATA Motors to take the vehicle back and to pay the cost of the vehicle with interest @10% p.a. from the date of filing of the complaint till payment. Being aggrieved against the order of the State Commission, two appeals were filed before this Commission one by the complainant and the other by the OP TATA Engineering and Locomotive Limited, now known as TATA Motors Limited. Vide order dated 03.04.2008, this Commission disposed of both the appeals and set aside the order dated 21.06.2004 passed by the State Commission and remanded the case back to them for deciding the complaint again on merits. This Commission relied upon an affidavit of S.K. Pattanaik filed by the OP Company and inspection report of 16.09.2003 of S.K. Ghosh, Engineer saying that the points raised in the said reports should be examined while deciding the consumer complaint. The State Commission decided the case again vide impugned order dated 04.05.2009 and brought out that there was no manufacturing defect in the vehicle, based on the report of the expert engineer and technical personnel of OP TATA Motors and hence, the complaint deserved to be dismissed. Being aggrieved against the said order of the State Commission, the appellant/complainant is before this Commission by way of the present first appeal. During proceedings before this Commission, written arguments were filed on behalf of appellant as well as on behalf of OP TATA Motors Limited. The oral arguments of the learned counsel for the parties were also heard.

5. The main line of argument taken by the counsel for the appellant/complainant is that the said vehicle was purchased on 12.05.98 and the warranty period for the same was 36 months, or running a distance of 3 lakh kms, whichever was earlier. Within the warranty period, the cracks developed in the chassis of the vehicle and hence, it was the duty of the OPs to take care of the defects in the vehicle. The said cracks were noticed on 18.07.1999 and an intimation was given to the OPs on 19.07.1999. However, despite sending various letters/representations, the OPs did not take any action to rectify the said defects. They responded only after a legal notice was sent to them. The OPs wanted the vehicle to be brought to a service centre, which was about 160 km away, but it was not possible to bring the vehicle to that centre, as it was not in a running condition. The appellant has drawn attention to copies of letters placed on record, which are stated to have been sent to the OPs. Referring to the report dated 16.09.2003 of S.K. Ghosh, Engineer, the learned counsel submitted that cracks in the vehicle had been admitted to be there in the said report. Referring to the affidavit filed by S.K. Pattnaik, in which it is stated that the vehicle was inspected on 16.09.2003 by the Service Engineer and one technical personnel of TELCO, the learned counsel stated that the said affidavit could not be relied upon, as S.K. Pattanaik was only an accountant, and not a technically qualified person. Referring to the report made by a Motor Vehicle Inspector deputed by the Regional Transport Authority, Balasore dated 10.01.2003, the learned counsel stated that a number of defects in the vehicle had been pointed out in the said report. The learned counsel stated that the State Commission had wrongly stated in the impugned order that there was no mention of cracks in the report of the Motor Vehicle Inspector. The order of the State Commission had been passed, based on the information by non-technical personnel only.

6. Per contra, the learned counsel for the OP TATA Motors stated that the letters regarding the defects in the vehicle, stated to have been sent by the complainant, were never received by them. They received two legal notices from the complainant, - in the first legal notice, she demanded 8_lakh as compensation, whereas in the second legal notice dated 18.07.2000, she demanded a sum of 10,21,570.96ps. The learned counsel further stated that as per the interim order made by the State Commission, the vehicle had been inspected by two technical personnel of TELCO, one of them was an Engineer, on 16.09.2003. Accordingly, an affidavit had been filed on their behalf by S.K. Pattanaik. It had been stated in the said report that the complainant had made on the front and rear of the vehicle, which was in violation of the addition of spring leaf warranty condition. There was modification of chassis frame done with steel runner, which was also a breach of warranty condition. These items were added with the purpose of overloading, and the overloaded vehicle was being run on rough roads in forests and also on hilly roads. Further, the complainant was continuing to pay the road-tax for the vehicle, which showed that the vehicle was in a running condition. The technical team of the OPs gave opinion that cracks had developed due to addition of spring leaf, alteration in chassis, improper driving and overloading of the vehicle. However, there was no manufacturing defect in the vehicle. The learned counsel stressed during his arguments that the complainant never produced the vehicle at the workshop/authorised service station of the OP, although there could be no problem in bringing the vehicle for inspection and get the parts under warranty replaced. The claim in question, had been made fraudulently. The order passed by the State Commission was, therefore, in accordance with law and should be upheld.

7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

8. The main contention raised in the consumer complaint by the appellant/complainant is that the chassis of the vehicle developed cracks within the warranty period of the said vehicle. However, the inspection done on the said vehicle by the technical personnel of the OPs including an engineer, in response to the directions of the State Commission, revealed that the complainants had made certain additions and alterations in the said vehicle and the cracks developed, were on account of the said additions/alterations. The report made by S.K. Ghosh, Engineer and G. Jana, Engineer dated 16.09.2003, says, interalia, as follows:-

We find that..

1. ..

2. ..

3. Steel runner provided on both the long member of the top and bottom long member of the chassis frame.

4. Leaf spring added by one and two in front and rear.

9. The above report is supported by an affidavit filed by S.K. Pattanaik who accompanied the technical team. However, no explanation has been put-forward by the complainant to say, as to why such additions/alterations were made in the vehicle and for what purpose. The allegations made by the OPs, therefore, that such additions/alterations were done for the purpose of overloading, cannot be disbelieved. The plea taken by the OPs that the warranty was not valid as per clause V of the terms and conditions, if any alterations etc. had been made in the vehicle, also seems to be true. Further, the complainant has not been able to explain as to why they continued to pay road-tax for the vehicle, in case the vehicle was unable to run. The stand taken by the OPs, therefore, that the vehicle continued to be in running condition, seems to be correct. The complainant also failed to bring the vehicle to the nearest workshop/service station in response to the offer made by the OPs. The explanation made by them in this regard is also not convincing.

10. Based on the discussion above, we have no reasons to differ with the findings of the State Commission that there was no manufacturing defect in the said vehicle and the cracks in the chassis were the outcome of the additions and alterations made in the vehicle. The impugned order passed by the State Commission, therefore, does not suffer from any illegality, irregularity or jurisdictional error, which may require any modification at the stage of exercising the appellate jurisdiction. This first appeal is, therefore, ordered to be dismissed and the impugned order passed by the State Commission is upheld. ...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER