(Delivered on  27/04/2022)

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

1.         Appellant- Ketan Motors Ltd.  has preferred the   present appeal   feeling aggrieved by the impugned order dated 13/04/2017 passed by the learned District Consumer Commission, Amravati  in Consumer Complaint No. 194/2016, whereby the complaint filed by the complainant/respondent  came to be partly allowed (Appellant shall hereinafter be referred as Opposite Party and respondent as Complainant for the sake of convenience).

2.         Short facts leading to filing of the present appeal may be narrated as under,

            Complainant –Bhushan Dhonge claims to be a resident  of Amravati. The complainant had purchased  one car Model  Hyundai i20 Asta  bearing No. MH-27/BE-3001 on 09/03/2015 from the O.P. No.1/appellant - Ketan Motors Ltd.   After purchasing  the car the complainant  had gone to  Pune from  Amravati. On 23/07/2016 the complainant  was  returning  from Pune to Amravati  and had  reached  near Aurangabad. At that time suddenly  the complainant  found that  there was less air pressure in the  tyre and so he  stopped the car. The complainant found  that  the inner  ring  of  the front  wheel  had bent inside.  The complainant  then give a  call to showroom of the O.P. No.1 at Amravati.  On reaching Amravati the complainant also  sent the car to showroom. The complainant  has contended that  the O.P.No. 1 dealer namely Ketan Motors Ltd.   accepted that  there was  bend in the ring of  the front wheel .  The O.P.No. 1 also assured to replace the ring with a new one but did not fulfill the assurance.  On 12/10/2016 the complainant  was  again  proceeding from Amravati to Pune and had reached  near Jalna. At that time the complainant  heard  the sound relating to the ring and  the   car  was dragged  to the wrong side  of the road. The complainant  then got  down and  found that  inner wheel  was   bent completely.  The complainant  has alleged that  he was driving slowly  since he was trying accident  the risk of life  otherwise the complainant  was for  lost  his life. The complainant  thus replaced  the tyre with stepny. The complainant  had contended that   driving in slow  manner he  brought  the  vehicle   to Pune and thereafter sent photographs  of the damaged tyre and ring to  the  company and O.P. No. 1 again  assured  to replace the ring. The complainant has contended that  the O.P. No. 1 namely Ketan Motors Ltd. who  was the dealer had also admitted that  there was  a manufacturing   defect in the ring of the  front wheel.  The complainant thereafter contacted the O.P.No. 1 dealer as well as O.P.No. 2- Hyundai Motors India Ltd.  and informed  them about the  manufacturing  defect. The complainant also had correspondence with the O.P.No.1 namely Ketan Motors Ltd.  dealer as well as O.P.No. 2 Manufacturer but   both O.P. Nos. 1&2 did not take  any  steps to  replace the ring and also did not accept that  there was  manufacturing  defect. The complainant  then  issued  notice  to the O.P. Nos. 1&2 on 22/11/2016  and same  was sent  by Registered Post but despite  this  the O.P. Nos. 1&2 did not  replace the ring. The complainant has contended that due to this inaction on the part of the O.P.Nos. 1&2 he had suffered great mental  and physical  harassment, Complainant  has therefore claimed   to Rs. 50,000/- by way of  compensation  and Rs. 10,000/- by way of notice charges. The complainant   was thus constrained to file consumer complaint under Section 12 of the Consumer Protection Act, 1986.

3.         After the  filing of the complaint notice was issued to the O.P.Nos. 1&2 and both were duly served. The O.P.No. 1 filed his written version on record.  The O.P.No. 1/appellant  who was the dealer  admitted that  the complainant  had purchased  i20 car from his showroom. However, the O.P.No. 1 has categorically denied that there was any manufacturing defect or that the O.P. No. 1 had not replaced the ring of the car sold by him. On the contrary  the O.P.No. 1 has  denied   any connection with the accident  which took place  on 23/07/2016 and dated  12/10/2016. The O.P.No. 1 has taken a plea that they were always cooperating and   providing   necessary  service to complainant. The O.P. has denied  that  there was  any  deficiency  in service. The O.P.No. 1 has contended that   the damaged  to the  ring can be caused  due to  several factors  namely  the quality of the road, speed of the car and others factors and  also lack of proper and sufficient  air pressure and other  factors. The O.P.No. 1 has taken a plea that the manufacturing  defect in the tyre  cannot be the sole reason  for damaged to the tyre and ring.

4.         The O.P.No. 2 was duly served but failed to remain present file written version and so Complaint proceeded exparte  against the  O.P.No. 2

5.         We have heard Mr. Paranjape, learned advocate for the appellant,  Mr. Bhushan Dhonge , respondent  No.1 in person and Mr. R. S. Suryawanshi, learned advocate for the respondent No. 2. On the basis of the facts stated above  only point  which  arises  for our determination  is as  under  with  our finding recorded  thereon and reasons  to follow:  

Reasons

6.           It is not in dispute that the complainant  Mr. Bhushan Dhonge had purchased  one   car Hyundai i20 Asta model, bearing registration No. MH-27/BE-3001 from the showroom of the dealer- Ketan Motors Ltd. (O.P. No. 1) on 09/03/2015.  Mr. Paranjape, learned advocate for appellant /O.P.No. 1 has submitted before us that the learned District Consumer Commission, Amravati has not properly appreciated the documents and  evidence adduced on record and has wrongly  saddled the liability  upon the appellant  who was only  dealer of  Hyundai Company. It is submitted by Mr. Paranjape, learned advocate for the appellant /O.P.No. 1 that the learned District Consumer Commission, Amravati  has not taken  into consideration  the fact  that  though the car was sold by it to  the respondent No. 1/ complainant  the appellant  was  always providing  necessary service to the respondent No.1/complainant  as long as the  same was  within  the  warranty period. The appellant/O.P.No.1 has contended that it had already cooperated with the respondent No. 1/ complainant  but  despite this erroneous finding was given  by the learned District Consumer Commission, Amravati  that O.P. No. 1 dealer was liable  for damaged caused  to the ring and tyre of the car of the respondent No. 1/complainant.  The appellant /O.P.No. 1 has taken  a plea that the damaged  to the ring of the tyre can take  place due to external impact on the wheel when the wheel passed over potholes and also  in high speed but these  aspects  were not properly  examined  by the learned  District Consumer, Amravati.  Secondly, it is also submitted by the learned advocate for the appellant /O.P.No.1 that the respondent No. 2 namely Hyundai Motors India Ltd.  was the  manufacturer  of the Hyundai Car and responsibility  relating to the manufacturing  defect  lies  with the respondent No. 2 and not the present  appellant. There is also no privity of contract between the respondent No. 1 and respondent No. 2.

7.         Before dealing with the contentions advanced by the learned advocate for the appellant it would be appropriate to deal with the case of the respondent No. 1/complainant and also the documents filed on record by the respondent No. 1/complainant.  The complainant has placed on record several documents to show that after damage was caused to the ring the car was sent for necessary repairs to the service center of the O.P.No. 1/appellant. From these documents  it is amply  clear that  after the damaged  was caused  to the car and its tyres ,the car was  properly  sent for  repairs  and same  were also  carried out.  The complainant  has further  placed on record copies of mails exchanged between complainant and O.P.No. 1. All these mails go to  show that  the ring of the tyre of car of the complainant  was got damaged  while  he was travelling  between  Amravati to Pune and complainant  had on  several occasion  informed  the O.P. No. 1/appellant dealer  as well as O.P.No. 2- Manufacturer regarding  the defect  which has arisen in the ring.  It is significant to note that the complainant was not complaining  about  any defect in the car but had informed  about  the defect in the ring of the tyre of the  Hyundai Car.  The O.P. Nos. 1&2 both have tried to shift their own responsibility by stating that   the same was not the manufacturing defect. If we go through the written version filed by the O.P.No. 1, the O.P. No. 1 has taken a plea that the damaged  to the ring and tyre can be caused  due to several factors including bad condition of road, Potholes and also due to high speed . Mr. Paranjape, learned advocate for the appellant /O.P.No. 1 has also  tried to argue  on the very same  lines by  contending  that the  appellant  was not at all responsible  for damage caused  to the ring.  According to the appellant, the appellant had also replaced the tyre but the same is not substantiated from the record.  

8.         The learned District Consumer Commission, Amravati has also  given a finding that the appellant /O.P.No. 1 as well as O.P.No. 2/respondent No. 2 both have tried to shirk their responsibility by contending that the defect alleged by the complainant was not at all manufacturing defect.  However, it is significant   to note that both the O.P.Nos. 1&2 had not  sent the vehicle to the expert engineer to verify whether  the defect alleged by the  complainant  was manufacturing  defect though  it was the obligation  of the O.P.No.1 as well as O.P.No. 2 to do the same. It is also pertinent to note that when the complainant had purchased the car from O.P.No. 1/appellant - dealer and when the  O.P.No. 2/respondent No. 2 manufacturer  the car  and  when  such complaint is  made regarding  manufacturing  defect in the vehicle, it was  obligatory  on the O.P.No. 2 to refer the vehicle and see  the  expert opinion  from the Engineers but no such  steps  were taken  and in fact the O.P.No. 2 did not even filed any written version and also remained absent though opportunity was granted for the same.

9.         At the time of arguments the learned advocate  for the  respondent No. 2- manufacturer  has  made a submission that  there was no privity of contract between the  respondent Nos. 1& respondent 2 and relationship with the dealer was on  Principal to Principal  Basis but  we have earlier  pointed out that   even after intimation  was given  and mails were sent  by the complainant,  there was no proper reply given by the O.P.No. 2- manufacturer.  Both  the appellant /O.P. No. 1 and  respondent No. 2/O.P.No. 2 have not only shifted their  responsibility  by  taking a defence  that  the damage to ring  can be caused  by  several factors  such as bad condition of road, potholes and high speed of the vehicle and by no other way. Interestingly, both  O.P.Nos. 1&2 have not led any substantial evidence on record even to  support  his contentions.  On the other hand, the  respondent No. 1/complainant  who has  appeared in person  has drawn our  attention  to the various  documents and copies of mails on record and has also pointed out that damaged to car did not take  place only  due to cautious  and  slow  driving  on his own part. The respondent No. 2 has also  pointed out that  despite receipt of notice  even the  tyre  and ring was  not replaced on the ground that  sufficient  service   had already  been provided. However, we are also unable to  accept the contention advanced by the learned advocate for the appellant  in the  absence of  material  documents  and evidence  placed on record.

10.       During the course of hearing  we have also gone through the copy of judgment and order passed by the learned District Consumer Commission, Amravati, the learned District Consumer Commission, Amravati  has specifically  stated in para No. 18  that  the O.P. No. 1 and 2 both have not denied specifically the fact of manufacturing defect.  We have pointed out that both the O.P.Nos. 1&2 have also not adduced any evidence or report of any expert engineer to show that there was no manufacturing defect. As such allegations and averments made by the complainant /respondent No. 1 have gone unchallenged. We also find that the learned District Consumer Commission, Amravati has elaborately discussed all aspects and thereafter given findings and also directed the O.P. Nos. 1&2 to replace the three rings along with tyres and we do not find any error in the said findings.

11.       In the light of aforesaid discussion, we are unable to accept the contentions advanced by Mr. Paranjape, learned advocate for the appellant /O.P.No. 1 and so we answer Point No. 1 in the negative and by way of sequel proceed to pass the following order.

ORDER

i.          Appeal is hereby dismissed.

ii.          Appellant to bear his own cost as well as cost of the respondents.

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