Per Mr.Shashikant A. Kulkarni, Presiding Judicial Member
[1] This is a consumer complaint under Sec.12 of the Consumer Protection Act, 1986 [hereinafter to be referred to as ‘C.P.Act’].
[2] Complainant no.2 is an employee of the complainant no.1. Opponent no.2 is a dealer of opponent no.1-Manufacturer Company. Opponent no.1 manufactures four wheeler cars. Complainant offered to purchase for use of car for official and other purposes. Upon considering the offer and configuration of car-Baleno made by the opponent no.1, complainant no.1 purchased the same from opponent no.1.
Complainants took possession of the car on 15/03/2001. The car met with an accident on 30/03/2001. During 15 days from purchase, Car-Baleno hardly run over 300 kms.
On the day of accident, complainant no.2 was taking his sister-in-law to Naval Hospital for medical treatment of cancer. Complainant no.2 states that he has emotional attachment with his sister-in-law as she looked after him like a mother. But on the way to Naval Hospital, a right front wheel of the car dislocated. Complainant no.2, however, managed to control the car at distance on the side of road which brushed a tree and stopped. Complainant suffered a shock. Treatment to his sister-in-law was delayed. A Day was wasted. He informed opponent and got examined the car through a mechanic in presence of office of the opponent no.1.
The mechanic opined that there was scraping mark of the tree. Spherical portion of the right wheel from lower ball joint having separated from its seat in the assembly resulted in the lower arm dropping down. There is no locating mechanism for front strut with the wheel. Wheel wandered/rolled off. Drive shaft came out/dislodged. Top mount broke. Lower arm stabilizer link broke due to the momentum of the vehicle. Car must have skidded on the road with the tyres. The complainants therefore alleged that the accident occurred was due to mechanical defect in car to claim compensation. Complainants claim for refund of price of the car, registration charges and compensation for mental agony etc.
[3] In defence in written version, the opponents claimed that the complainants are not ‘consumers’. Opponent no.2 is not responsible for manufacturing defect in the car. He is dealer of the opponent no.1 for sale of the cars. It is denied that there was any deficiency in service. So also, it is stated that, the car was purchased for commercial purpose. The car was insured. Instead of getting the insured protection; the complainant has dragged the opponents to extract more compensation. It is submitted The car was involved in accident. Therefore, the opponent no.1 is relieved of any liability of condition of warranty. Complainant being an employee of the complainant no.1 has no locus-standi to file the consumer complaint. It is denied that the right wheel of the car was separated from its axel. Rest of the claim for damages for pecuniary and non-pecuniary losses have been expressly denied.
[4] Parties produced affidavits evidence on record and relied on documents. We have heard learned advocates for the parties, perused the documents.
[5] Learned Advocate Mr.V.Mannadiar for the complainant submitted that the car was met with the accidental and damage, but the accident was due to mechanical defect resulted of separation of right wheel of the car.
Learned Adv..Jinal Garasia i/b.Adv.usha Shrivastav for the opponent no.1 submitted that the report of mechanic is not authentic. There was no mechanical defect.
Whereas learned Adv.Bhaskar Yogi for the opponent no.2 submitted that there was no privity of contract between the opponent no.2 and the complainant except warranting damages within one year and as per the insurance claim.
In view of the submissions at Bar, the questions that crop in :
(i) Whether the complainants are consumers?
The car was purchased by complainant no.1. Complainant no.2 is in service of the complainant no.1. Purchase amount was paid by the complainant no.1 as a condition of service of the complainant no.2. The complainant no.2 was thus the consumer and beneficiary too. Consumer complaint is filed in the year 2001 prior to amendment of 2003. Though the car is purchased by the complainant no.1 company, the car was purchased for personal use of the complainant no.2 as the employee of the complainant no.1, prior to amendment, therefore, the complainants are consumers within the meaning of C.P.Act.
(ii) Whether the opponents are jointly and severally guilty of deficiency of service because there was mechanical defect in the car?
There was no counter report from any expert submitted on behalf of the opponents to disbelieve the report of Swadi Automobiles, who has inspected the car with one Mr.Rajan, probably employee of the opponent no.1. He noted that the wheel wandered/rolled off. Drive shaft came out/dislodged. Topy mount broke and the wheel went under the vehicle. Lower arm stabilizer link broke due to the momentum of the vehicle. These findings have gone unchallenged.
It could be possibly said that this type of breakage of front shaft and wheel coming out of the shaft was as a result of car being driven at speed on rough road surface. But such case is not made out in the affidavit. The car was being proceeded to Naval Hospital. The road normally seen to be in good condition. Moreover, it was new brand car of 15 days’ duration only when the same was taken out of the showroom.
It is unimaginable that, without there being any deficient conduct on the part of the opponent no.1 and also opponent no.2 or its employee to properly fix the wheels or to see that the parts of shaft controlling wheels are properly fixed with proper expertise, the wheel would automatically come out due to jerk or ditches on road. In fact, in the normal condition, at a speed of 60-80 kms. per hour new car run smoothly on normal road conditions. Therefore, there was deficiency in service. The defence, therefore, falls on the ground that there was no deficiency in service or that there was no mechanical defect in the car.
We therefore, hold that opponents are guilty of deficiency in service. However, no case is made out by the complainants for awarding pecuniary damages for mental agony etc.
It shall not be out of place to mention that the car may be still in the use of the complainant no.2. It was purchased in the year 2001. We are now in the year 2015. It is unfortunate that the consumer dispute required 15 years for final adjudication. But no one can be blamed for that. Only after the proceedings were taken out from the sine-die list, the effective hearing was undertaken recently for final disposal of the case.
In view of this position, it shall be noted that the defects which were curable and cured. The car being used by complainant no.2 through out these years. At least there is no statement to that effect made by the complainant nor there is any record that he surrendered the car to the opponents.
However, for the deficiency proved with cost of litigation nominal and lumsum compensation in this case may awarded as a token to the complainants from opponents.
[6] Considering the circumstances and for reasons stated above, in our view, opponent shall pay Rs.1 lac to the complainants by compensation. Therefore,
ORDER
- Consumer complaint is allowed in part. No order as to costs.
- Opponents shall jointly or severally pay an amount of
- Rs.1 lac [Rs.One lac only] within 60 days from today, failing which the amount shall carry interest @9% p.a. from the date of complaint till its realization.
4.One set of complaint compilation be retained. Rest be returned to the complainant forthwith.
5.Certified copies of the order be furnished to the parties forthwith.
Pronounced
Dated 31st March, 2015.
