Punjab

StateCommission

A/788/2017

Bhagat Ford - Complainant(s)

Versus

Bably - Opp.Party(s)

M.S.Bedi

11 Dec 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,         PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   First Appeal No.788 of 2017

 

                                                          Date of Institution   : 21.11.2017      

                                                         Order Reserved on : 05.12.2018

                                                          Date of Decision     : 11.12.2018

 

1.      Bhagat Ford, A.B Motors (P) Limited, 658, Industrial Area-A, Sherpur Byepass, G.T Road, Ludhiana through its Manager/Proprietor.

2.      A.B Motors Pvt. Limited opposite Delhi Public School, Jalandhar Phagwara Road, Jalandhar through its Manager.

 

                                            ..Appellants/Opposite parties No.1 and 2          

                   Versus

 

1.      Bably aged 31 years wife of Sh. Baljit Singh Sohal, R/o 19/91,Amba Bhawan, Railway Road, Tehsil and District Hoshiapur.

                                                          ..Respondent no.1/Complainant

 

2.      Manufacturers Food Vehicles, Head Office, if any (the address was not disclosed and has not been summoned before the District Forum).

                                      ..Respondent no.2/Opposite party no.3

 

First Appeal against order dated 24.10.2017 passed by the District Consumer Disputes Redressal Forum,  Jalandhar.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member

            Smt. Kiran Sibal, Member.

Present:-

          For the appellant                     :  Sh.H.S Bedi, Advocate

          For the respondent no.1         :  Ms.Rajni Maurya, Advocate

          For the respondent no.2.        :  Sh.V.K Gupta, Advocate

. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

                    Challenge in this appeal by appellants is to order dated 24.10.2017 of District Consumer Disputes Redressal Forum Jalandhar, directing the appellants to replace the old vehicle in dispute with a new one of the same model with same price after receiving back the old vehicle  and further directing appellants to pay Rs.25,000/- as compensation and Rs.10,000/- as litigation expenses to respondent no.1 of this appeal. Respondent no.1 of this appeal is complainant in the complaint  and respondent no.2 of the this appeal is opposite party no. 3 before District Forum Jalandhar and appellants of this appeal are opposite parties no.1 and 2 therein and they be referred as such hereinafter for the sake of convenience.

2.                The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that she purchased Ford Eco Sport on 30.11.2015, manufactured in the year 2015 with provisional registration certificate from 02.12.2015 to 02.01.2016 vide provisional registration no.PB07-AY-6152 issued by OP no.2. The vehicle was handed over to complainant after receipt of Rs.10 lac as price of the vehicle and it was hypothecated with Kotak Mahindra Prime Ltd Jalandhar  being financer to her of this vehicle. There was problem in the said vehicle from the very beginning because check engine light was depicting in the engine meter and pick up was slow, when speed of the vehicle did cross over 80 km per hour. The intimation was given to OPs about the above problems, whereupon it was assured to her that problem would automatically be resolved after running of 2500 km of the vehicle. After completion of 2500 km run by vehicle, the complainant visited service center of OPs on 02.02.2016 and said problem still continued therein and they were brought to the notice of OPs and technical person of OPs asked the complainant to leave the vehicle for one day in the agency to solve the said problem. The vehicle remained in the possession of OPs for 4-5 days and it was returned to complainant on 08.02.2016 only. The above problems were existing in the vehicle and intimation was given to OPs on 19.02.2016 in that regard in the service station. The problems like check engine, low pick up were written in repair order dated 19.02.2016. The technician visited at Hoshiapur and checked the vehicle to resolve the problem and complete wiring was changed as earlier it was changed, but problem still continued therein. The complainant again visited the agency at Jalandhar on 19.02.2016 and meeting with DGM was also arranged thereat, who asked to wait for some time for sorting out the problem,  but the problem existed in the vehicle even on the test drive thereat. The vehicle was detained by OPs from 19.02.2016 to 29.02.2016 for resolution of the problem. Mail regarding completion work was given on 29.02.2016 to the effect that turbo of the vehicle was replaced by OPs and used the vehicle for 500 km and  made scratches  on driver seat as well. The OPs delivered the defective vehicle to her despite taking full price thereof from her. The complainant has been running from pillar to post  for redressal of her grievances,  but to no effect. Therefore, she has filed complaint directing OPs to replace the vehicle in question with new one of the same price and in the alternative to refund the price of the vehicle, besides Rs.5 lac as compensation for mental harassment and Rs.25,000/- as cost of litigation.

3.                Upon notice, Ops no.1 and 2 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complainant is not maintainable. It is alleged to be false and frivolous. It was averred in the preliminary objections that vehicle was delivered to complainant on 30.11.2015 after being inspected by service engineers of OPs no.1 and 2. After sale and delivery of the vehicle, there was no complaint on the part of the complainant till 02.02.2016.  The complainant for the first time complained on 02.02.2016 that front panel of dashboard, engine light was glowing  in the cluster. The vehicle was inspected and examined by the competent service engineers and mechanics and after test drive, the vehicle was delivered to the complainant to her entire satisfaction. The complainant was advised not to accelerate more on lower gears and vehicle was delivered on 08.02.2016 to her. Thereafter, once again on 18.02.2016, complainant again complained that the same problem of engine light glowing in the cluster and low pick up was faced by her. The experts and service engineers visited at Hoshiarpur  and tried to resolve the problem, but due to non-availability of proper instruments at Hoshiapur, the vehicle was brought to Jalandhar at the workshop of OPs no.1 and 2. The complainant was provided with a standby loaner car ‘Eco Sport’ by OPs. OPs no.1 and 2 with the support of OP no.3 instead of repairing EVRV HOSE of Turbo Charger, the entire Turbo Charger free of cost was replaced by OPs covered under warranty. It was only at the request of the complainant that long test drive was taken to satisfy the complainant about the defects of the vehicle. Any deficiency in service or unfair trade practice for manufacturing defect in the vehicle was denied. The complaint was also contested on the above ground on merits in the written reply by OPs no.1 and 2 and they prayed for dismissal of the complaint.

4.                District Foruom Jalandhar had not summoned OP no.3 for want of correct particulars.

5.                The complainant tendered in evidence her affidavit Ex.C-A, supplementary affidavit as Ex.C-B along with copies of documents Ex.C-1 to Ex.C-6 and closed the evidence. As against it; OPs no.1 and 2 tendered in evidence affidavit of Jasbir Singh Manager Ex.OPW/1 along with copies of documents Ex.R-1 to Ex.R-3 and closed the evidence.  On conclusion of evidence and arguments, the District Consumer Forum Jalandhar accepted the complaint of the  complainant by virtue of order dated 24.10.2017. Aggrieved by above order of the District Forum Jalandhar, opposite parties no.1 and 2 now appellants, have carried this appeal against the same.

6.                We have heard learned counsel for the parties and have also examined the record of the case. The evidence on the record has also been appraised by us with the able assistance of counsel for the parties on the record. The pleadings of the parties have also been weighed by us in this regard. The complainant tendered in evdidence her affidavit Ex.C-A in support of her case. She stated that vehicle purchased by her was for consideration from OPs, but it gave problems of check engine light coming and low pick up after 80 km speed per hour from the very beginning. It has transpired in her testimony that vehicle was taken to OPs for removal of above referred problems of check engine light glowing in engine meter and slow speed of the vehicle after 80 km. She took the vehicle to OP,  but she was assured that the above problem will come to an end after running of 2500 km of the vehicle. She stated that problem continued existing and same was informed to OPs, but to no effect. It was also mentioned in the repair order dated 19.02.2016 that above referred problems existed in the vehicle of complainant. She also deposed that OP's technician visited her on 18.02.2016, but could not remove the above problems in the vehicle. She further deposed that vehicle was taken to Jalandhar agency, where it remained in their possession from 19.02.2016 to 29.02.2016, but they failed to remove the above problem and rather misbehaved with her.  She sought  the refund of the price of the vehicle or replacement of the vehicle with new one in her deposition. Ex.C-1 is retail invoice dated 19.02.2016 of the vehicle for its service. Ex.C-2 is particulars of the vehicle and provisional registration certificate is Ex.C-3. Job card of the vehicle is Ex.C-4 dated 02.02.2016 for its service. Similarly, job card for first service on 02.02.2016 is Ex.C-5. Another job card for repair of the vehicle is dated 19.02.2016 is Ex.C-6, where the problem of check engine light coming and slow pick up have been mentioned. The above problems are mentioned only in repair order Ex.C-6 dated 19.02.2016. Ex.C-4 and Ex.C-5 are silent regarding the above problem. To counter  this evidence of the complainant, OPs no.1 and 2 tendered in evidence affidavit of Jasbir Singh Manager  Ex.OW-1 on the record. He stated in his statement that complainant received the vehicle after test drive on 30.11.2015. He deposed that she pointed out above problem for the first time on 02.02.2016 regarding engine light glowing and slow pick up of the vehicle. He further deposed that on 18.02.2016, she again complained about the same problem of engine light glowing in the cluster and low pick up  being faced by the complainant about the vehicle. The experts and service engineers visited at Hoshiapur to fix the problem, but due to lack of infrastructure they could not do it. The vehicle was brought to Jalandhar main workshop of OPs no.1 and 2, where it remained for some days for removal of the problem. The turbo charger was replaced free of cost under the indemnity of the vehicle. This witness denied any manufacturing defect in the vehicle in this case. E-mails which exchanged between the parties are on the record and have been duly examined by us. Ex.R-1 is extract of resolution passed in meeting of Board of Directors held on 16 May 2012. Ex.R-3 is vehicle history on the record.

7.                From careful appraisal of evidence on the record and hearing submissions of counsel for the parties, we have come to conclusion that onus to prove manufacturing defect in the vehicle lies on the complainant. There is no expert witness on the record to prove manufacturing defect in the vehicle by complainant. The main emphasis of counsel for the complainant is that vehicle brought to the service station for repairs on the above premises, but problems were not resolved and hence it was taken to service station of OPs which fact constitutes manufacturing defect in the vehicle. This point has been resolved by National Commission in “Classic Automobiles versus Lila Nand Mishra” and another reported in 2010(1) CPJ 235 in paragraph no.14 of the judgment that glowing of ‘check light’ cannot be termed as a manufacturing defect. As per specific law of National Commission as contained in paragraph no.14 of the cited authority, glowing of check light cannot be termed as manufacturing defect in the vehicle.

8.                The next point raised by counsel for complainant is that there is slow pick up of the vehicle when it reaches the speed of 80 km per hour. There is no expert witness on the record to prove that it was due to manufacturing defect in the vehicle. On the other hand, complainant also led on record the evidence that Turbo was replaced under the indemnity of the vehicle and wiring was changed to resolve the problem and complainant was advised not to put weight on the lower gear while driving the vehicle.  The vehicle was repeatedly brought to the service station for repairs, it cannot be said that it suffered from manufacturing defects for the above reasons. We are supported by law laid down by National Commission in “Classic Automobiles versus Lila Nand Mishra and another” (supra) on this point. Even otherwise, manufacturer is liable for manufacturing defect and not authorized dealer. The Apex Court has also examined this point in “Hindustan Motors Ltd and another versus. N. Siva Kumar” and another reported in 2001(2) CPC 334 wherein it was held that dealer cannot be held for manufacturing defects in the vehicle. The liability must be borne by the manufacturer for manufacturing defects. As per mandate of law laid down by National Commission and Apex Court (supra), it is liability of the manufacturer of the vehicle for manufacturing defects and not of authorized dealer. The simple point of slow pick up of the vehicle after speed of 80 km per hour of the vehicle remained un-established on the record by the complainant for want of expert witness's evidence on the record. As against it; evidence of OPs disprove this fact that it was a manufacturing defect and reference is placed on record by us to deposition of Jasbir Singh Manager vide his affidavit Ex.OPW/1 and vehicle history report Ex.R-3. We do not affirm the finding of the District Forum in this appeal on this point that vehicle suffered from manufacturing defects  and has been so established by the complainant on the record. This finding of District Forum is reversed in this appeal. However, the above referred problems persisted in the vehicle despite taking the vehicle to OPs and consumers should not suffer from undue harassment over such matters. Consequently, it is solemn duty of OPs no.1 and 2 to set right the vehicle by removing the above defects free of costs to the entire satisfaction of the complainant and thereafter to obtain the satisfaction note from the complainant in writing about the settlement of the above problems. It be done within a period of 15 days from receipt of certified copy of the order.

9.                As a result our above discussion, the impugned order of District Forum Jalandhar dated 24.10.2017  is modified and it is hereby ordered that OPs no.1 and 2 shall remove the defects of the vehicle free of costs to the entire satisfaction of complainant and even if by replacing some parts therein, if required and thereby to set the vehicle right to the entire satisfaction of the complainant and OPs no.1 and 2 shall obtain the satisfaction note from complainant to her satisfaction in writing. OPs no.1 and 2 shall not charge anything from the complainant for the above referred removal of defects. The complainant is held entitled to compensation of Rs.40,000/-for mental harassment and Rs.20,000/- as cost of litigation from OPs. The complaint of the complainant is accepted by modifying the order of the District Forum Jalandhar to that extent and appeal stands disposed of accordingly.  

10.              The appellant had deposited an amount of Rs.17,500/- in this Commission at the time of filing the appeal and further deposited Rs.6,50,000/- as per compliance of the order of this Commission. After calculating the interest on the above amounts, if any, the amount of Rs.60,000/- be remitted by the registry to the respondent no.1/complainant  of this appeal by way of crossed cheque/demand draft within 45 days period from the date of the order and the remaining amount be remitted to the appellant of this appeal by the registry within 45 days from this order.

11.              Arguments in this appeal were heard on 05.12.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

12.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                       (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

                                                                    (KIRAN SIBAL)

                                                                       MEMBER       

December 11, 2018                                                            

(ravi)