Complaint filed on: 21-09-2011
Disposed on: 31-07-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1736/2011
DATED THIS THE 31st JULY 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
M/s. ALLTRONIX
(A partnership firm),
Having its office at No.C-340,
Sri Sai Arcade, 6th Cross,
1st Stage, Peenya Industrial
Area, Bangalore – 58
Represented by its Partner
Sri Naresh Chawla
V/s
Opposite parties: -
1. M/s. Honda Siel Cars India
Ltd, Plot no.A-1, Sector-41/41, Surajpur, Kasna Road district, Gautam Budh Nagar, Greater Noida Industrial Development area, U.P.,
Represented by its President and CEO
2. M/s. Dakshin Honda,
(Elite Automobiles Pvt. Ltd), No.97/1A, Singasandra Village, Hosur Road, Bangalore – 68
Represented by its Managing Director
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs under section 12 of the Consumer Protection Act’ 1986, praying to pass an order, directing the OPs to replace the car with a brand new one, and alternatively to pay the entire price of the car i.e. Rs.14,95,500=00 with interest at 18% p.a. and to pay Rs.2,00,000=00 towards mental agony and damages of Rs.35,000=00 and grant other relief as deemed fit under the circumstance.
2. The brief facts of the complaint can be stated as under.
The complainant purchased a Civic Honda bearing No.KA-02-ME-5958, chassis no.MAKFD 152 FAN 400221, Engine no.R18A17400544, Key no.N655 having polished Metalm colour, for a on road price of Rs.14,95,500=00 from the OP no.2, who is one of the authorized car dealers of the OP no.1 The OP no.1 is a prominent MNC car manufacturing company having several dealerships in Bangalore and all over the world in general and the OP no.2 is one of the dealers of the 1st OP from whom the complainant purchased the above car. Pursuant to purchase immediately after the first service the above said car purchased by the complainant was producing annoying noise, emanating from the engine. The complainant brought it to the notice of 2nd OP immediately after the first service, the 2nd OP who pretended to checkup the engine, said that there is no such problem at all and made general remark that it is a common noise eminating from all Honda civic cars and took the complaint very slightly and did not bother to consider it as a complaint. The above said annoying noise continued and it was brought to notice of OP no.2 during second service and at that time also the complaint of the complainant was not considered. When the said annoying noise did not stop and persistently it was increasing even after repeated complaints addressing the problem of the car faced by the complainant, when no action was taken on 13-3-2011, the complainant gave a written complaint to OP no.2. Pursuant to the complaint, the complainant was asked to leave the car with OP no.2 for checkup and the complainant left the car on 19-5-2011 with the 2nd OP and it was there with the 2nd OP for 12 days and thereafter when the vehicle was taken back complainant noticed reoccurrence of the same problem with the lapse of one month and it was brought to the notice to the 2nd OP, as per email dated 18-7-2011. Even then the Ops ignored the complaint of the complainant, the complainant remained Ops repeatedly, and few such reminders sent by email on 1-8-2011 and 4-8-2011. Finally when it was impossible to bear the annoying noise the complainant had to leave the car for setting right the above said problem at the request of 2nd OP on 5-8-2011. Evenafter lapse of 6 days from leaving the car in the service station of 2nd OP, when there was no intimation about the identification of problem involved the complaint once again reminded the OP to arrange an alternative car as he has been put to great inconvenience. Evenafter the receipt of the said email and repeated follow ups when either of Ops did not respond, and the complainant had to enquire about the status of his car and ultimately on 20-8-2011, orally the OP no.2 was kind enough to disclose the partial problem of engine block and replace crank shaft which was a surprising news for the complainant, since all the while the complainant was kept in dark by only replacing bushes, belts etc. despite the problem was made known to Ops when the 2nd OP disclosed that the replacement of crank shaft and engine was required to restore the car for normally as this happens to be major inherent defect in the car supplied by the OP no.2. Immediately on 21-8-2011, the complainant wrote a letter to OP no.1 and 2 making it clear that above said proposition is unacceptable and the said problem is inherent. Being annoyed by the casual attitude and the glaring deficiency of service by adopting unfair trade practice and showing indifferent attitude on 22-8-2011 the complainant sent a notice asking Ops either to replace the car or refund the money with accrued interest from the date of payment and damages, and pursuant to notice the sale engineer of the OP no.1 contacted over phone and disclosed that mere changing of crank shaft and barring will not suffice and engine block also need to be replaced apart from feeling regretful for taking so much of time to disclose the fact no written letter was sent by OP no.1, the complainant prepared a notice asking the Ops to replace the above said car or refund the entire amount including charges, interest expenses incurred and damages. The complainant though prepared notice on 2-9-2011 was kind enough not to post the same till 7-9-2011 expecting some positive action from the side of the Ops, but ultimately the complainant sent final notice dated 2-9-2011 and sent on 7-9-2011 both by email as well as speed post. There is a four years warranty period and three free services from the date of selling of car, despite brining to the notice of Ops the manufacturing defect of the above car, the Ops deliberately made the complainant to run pillar to post and made him panic. The unfair trade practice and deficiency of service is inherently imbibed by the attitude of the Ops. The complainant is a firm involved in industrial electronic business and the above said car is a necessary for the company to accommodate and impress foreign delegates and business partners etc. and forced the complainant to engage outside transport which is not only expensive but also embarrassing. Hence, the Ops are liable to pay the damages as claimed in the complaint.
3. After service of notice, the 2nd OP did not appear, and he has been called out absent and placed him exparte.
4. The OP no.1 has appeared through its counsel and filed version, contending interalia as under:
The complaint of the complaint is an after thought and the complainant is deliberately trying to distort the facts of the case to suit his own convenience in order to mislead the forum. In fact the complainant is not maintainable before this forum and the same is liable to be dismissed. Admittedly, the complainant has purchased the car in dispute in the name of M/s. Alltronix a partnership firm. The car was being used by the partners of M/s. Alltronix for growth and expansion of the partnership firm, since the car was purchased in the name of the partnership firm, it has become an asset of the partnership firm and it is used in generating business of the firm. Section 2 (1) (d) of the said Act categorically excludes from its ambit any goods purchased for commercial purposes and a purchaser of goods utilizing goods for commercial purposes cannot seek protection under the said Act. So the complainant does not fall within the ambit of the term consumer. The complainant has miserably failed to establish in his complaint that a particular kind of defect falling within the purview of inherent / manufacturing defect had not persisted in vehicle as neither any engineer’s report nor any other convincing material had been filed before the forum. The allegation of manufacturing defect in a vehicle is not to be taken to be as a gospel truth on mere statement but it is required to be proved beyond doubt by means of credible documentary evidence. It is necessary for the courts to obtain a technical report and in the absence of same, no relief shall be granted. There is no manufacturing defect in the car and warranty obligation of OP no.1 is only to the extent of repair or replacement of the part which proves defectives within the limit of warranty at no charge to the customer for parts and labour. The warranty condition clearly refers to the replacement of the defective part and not of the car. Accordingly the answering OP have offered to replace the crank shaft free of cost under warranty, but the complainant had refused to accord permission for the said replacement for the said replacement of defective part. Hence answering OP cannot be held liable for the deficiency of service. The complainant was guided by greed and ulterior motives wants a brand new car and is unnecessarily accusing the Ops of providing him with a defective car. The 1st OP cannot be made part to the present complaint; the complaint involves several disputed questions of fact and law which would require both the parties to give detailed order and documentary evidence. So the complaint can be adjudicated in the present summary proceedings and only civil courts have jurisdiction to try and adjudicate upon the present complaint. As per the information received from the 2nd OP the car was brought to their workshop on 22-8-2011 for the first free service and no such complaint was ever made, the vehicle was brought on 29-11-2010 when the vehicle had done 5320 kms for some minor repair work in the lamp unit and tail light in the vehicle which was duly attended and repaired by the 2nd OP. No such complaint as alleged now was ever reported to the 2nd OP at the relevant time, the vehicle was again brought to the workshop of 2nd OP on 29-3-2011 for routine service where try rotation, weight balance, wheel balancing and alignment were carried out. The complainant only reported that the vehicle was pulling left and the cigarette charger not working which were rectified by wheel alignment and fuse replacement of the cigarette charger respectively. The complainant on 20-5-2011 for the first time complained to the 2nd OP about the engine noise in the vehicle which was recorded in the repair order sheet of the vehicle. It may be noted that as and when the vehicle was brought to the service centre of 2nd OP who is the dealer of the answering OP, it were dully attended. It is denied that the OP no.2 had disclosed that there is a major inherent defect in the car as alleged, the problem with the crank shaft was inherent as that was existing when the car was delivered to the complainant, as a service gesture answering OP offered to replace the defective part under warranty. So the complainant has no reason to complain of any deficiency of service on the part of Ops. It is denied that there is glaring deficiency of service by adopting unfair trade practice or showing indifferent attitude as alleged. It is denied that sales engineer of 1st OP contacted over phone and disclosed that mere changing of crank shaft and bearings would not suffice as alleged. It is complainant who is misusing the platform provided for Redressal of genuine consumer complaints by filing this frivolous complaint. The complainant has not suffered any damages, so he is not entitled to any compensation as prayed in the complaint, there is no question of any negligence from the OP and no loss or injury suffered by the complainant, as the car is being used by the partners of M/s. Alltronix for growth and expansion of the partnership and the same was purchased in the name of the partnership it has an asset of the partnership firm and it is used in generating business for the firm, and therefore the complainant does not fall within the ambit of the term consumer as envisaged under CP Act and hence the complaint of the complainant is false, frivolous which has been filed with malafide intention and ulterior motive to make unlawful gain at the cost of answering Ops, hence it is prayed to dismiss the complaint with cost.
5. So from the averments of the complaint of the complainant and objection of the OPs, the following points arise for our consideration.
1. Whether the complainant proves that, the defect in the car are inherent in nature and manufacturing defect and this defect can neither be repaired nor restored back the car into the original status by the OP no.2?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
6. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In view of the negative findings on the
Point no.1, the complainant is not entitled
to any relief as prayed in the complaint
Point no.3: For the following order
REASONS
7. So as to prove the case, one Naresh Chawla, who being the partner of the complainant firm has filed his affidavit by way of evidence and produced documents as annexure-A to O. On the other hand, one Amit Sinha, Manager legal working in the OPs Company has filed his affidavit on behalf of the OP no.1 and produced five copies of reprint repair order. We have heard the arguments of both sides, and we have gone through the oral and documentary evidence of both parties scrupulously.
8. One Naresh Chawla, partner of the complainant firm has stated in his affidavit filed by way of evidence that, he had purchased a Civic Honda bearing No.KA-02-ME-5958 on 23-7-2010 under invoice no.SV245 for a on road price of Rs.14,95,500=00 from the OP no.2, who is one of the authorized car dealers of the OP no.1 in the capacity of the managing partner of the complainant firm and the said car was purchased for his personal use to maintain his status symbol of the firm and never used for business purpose and the complainant is a consumer under section 2 (1) (d) of the CP Act. Since from the day of purchase of the car, it is producing annoying noise, emanating from the engine, immediately after the 1st free service it was brought to the notice of the 2nd OP. but it was not considered seriously and hence on 29-11-2010 when he gave the car for the 2nd OP service he specifically mentioned about the said problem and then except making a causal comment that such noise is common in such cars. On 13-5-2011 he wrote a letter even then the OP no.2 did not bother to look into it nor took the issue with the OP no.1, this was even noticed by OP no.1, and the 2nd OP purposely misdirected the court when initially the problem was brought to their knowledge and mislead the complainant. The conduct of the OP no.2 amounts to deficiency of service and there is total negligence on the part of the OP no.2. When the said annoying noise did not stop and persistently it was increasing evenafter repeated complaints, and when no action was taken by the OP no.2 on 13-5-2001 he gave a written complaint to OP no.2 and then sent it through email on 17-5-2011, then he was asked to leave the car with OP no.2 for check up and he left the car on 19-5-2011 with OP no.2 and it was there with the OP no.2 for 12 days and thereafter when the vehicle was taken back he noticed reoccurrence of the same problem and it was brought to the notice of the Ops as per email dated 18-7-2011. Finally when it was impossible to bear the annoying noise he left the car for setting right the above said problem, as per the request of 2nd OP on 5-8-2011. Even after lapse of 6 days from leaving the car in the service station of the OP no.2, there was no intimation about the identification of problem, once again he reminded the OP to arrange an alternative car as they have been put to great inconvenience, but the OPs did not respond. When the OP no.2 disclosed that the replacement of crank shaft and engine block was required to restore the car for normally as this happens to be a major inherent defect in the car supplied by the OP no.2. Being annoyed by the casual attitude and the glaring deficiency of service by adopting unfair trade practice and showing indifferent attitude on the same day i.e. on 22-8-201, he sent a notice to Ops to replace the car or refund the money with accrued interest and to pay damages. Pursuant to receipt of the notice, the sales engineer of the OP no.1 contacted over phone and disclosed that mere changing of crank shaft and bearings will not suffice and engine block also need to be replaced, but no written letter was give by the 1st OP in this regard. Finally notice dated 2-9-2011 and on 7-9-2011 were issued to OP no.1 by email and speed post, though there is a 4 years warranty period and 3 free services from the date of selling of car, despite bringing to the notice of Ops about manufacturing defect of the car the Ops made him to run pillar to post. The unfair trade practice and deficiency of service is inherently imbibed by the attitude of the Ops. The voluminous records produced before this forum speak volumes that the Ops somehow pushed the defective cars knowing fully well the inherent defects in his car. There is no consistency in identifying complaints by the Ops, such being the case the question of repair does not arise at all. So, under the circumstance the only alternative remains is only to replace the car with a brand new one or refund the entire amount with 24% and also to pay damages, hence the complaint is filed, so order be passed as prayed in the complaint.
9. On making careful scrutiny of the averments of the complaint and evidence of partner of the complainant as mentioned above, it is no doubt true that, the partner of the complainant firm has tendered his evidence in conformity with the averments of the complaint. Let us have a look at the relevant documents of the complainant to know whether the oral evidence of one of the partner of complainant firm stand corroborated by documentary evidence or not. Annexure-A of the complainant document is the copy of tax invoice of the car bearing invoice no.SV-245 alongwith insurance policy in the name of M/s. Partner Alltronix dated 23-7-210 for Rs.14,94,500/- including vehicle registration and insurance. Annexure-B is the copy of the complaint made by the complainant to the 2nd OP dated 13-5-2011, stating that before first service, they did not hear any noise and only after the first service they found this noise which seems to be coming from engine that noise is very annoying especially at night when the surroundings are quite and requested to take up this issue with Honda and revert to him in writing. Annexure-C is the copy of email from one Naresh who being the partner of the complainant firm addressed to Dakshin Honda requesting to give their comments as enclosed in his letter dated 17-5-2011. Annexure-D is the copy of email letter from Naresh to Dakshin Honda dated 18-7-2011 asking to bring the car to their workshop as the noise is back after one month of driving and ensure suitable expert is present to diagnose the problem. Annexure – E is the copy of email sent by the partner of the complainant by Naresh addressed to Dakshin Honda dated 1-8-2011 stating that he will bring his car to their workshop on 5-8-2011 as he has not received any response from them. Annexure-F is the copy of email from the partner of the complainant firm dated 4-8-2011 to know details of Honda. Annexure-G is the copy of service check sheet issued by the OP dated 5-8-2011 in respect of service of the car bearing no.KA-02-ME5958, wherein in Km column, it is mentioned as 11994 and in job description column it is written as under “noise from engine/gear box upto speed 25 km to 30 km, car pulling towards one side, Driver sent under side cut and damaged and driver side door painted in lighter shade. Annexure –H is the copy of email letter from the partner of the complainant firm dated 11-8-2011 requesting to arrange an alternative car for the same as he is inconvenienced by repeated complaint. Annexure –J is the copy of email sent by the partner of the complainant firm dated 21-8-2011 informing one Vinod of Dakshin Honda that he has been told that the engine block and the crank shaft has to be replaced but it is highly unacceptable by them, the service people of Dakshin Honda deny of any noise and he has made statement that this is an inherent problems in all civic cars but still unable to resolve the problem and he told him the engine block and crank shaft needs to be replaced but they cant not accept the car with a repaired engine so requested to replace the entire engine as this car came with a defective engine from very beginning. Annexure-K is the copy of email letter from Vinod Phutane customer relation manager service, Dakshin Honda addressed to the partner of the complainant dated 22-8-2011 stating that their technical team found that the noise noticed is from Engine crankshaft bearings, the Honda has approved for replacement of the Crank shaft along with crank shaft bearings and they have placed an order for the same and will intimate him as soon as the parts arrive and asked him to collect the vehicle till the parts arrival. Annexure-L is the copy of email letter from the complainant dated 22-8-2011 addressed to Vinod, Dakshin Honda stating that there is a major problem engine problem requiring dismantling of the engine it is definitely manufacturing problem present from the date they took delivery and having invested our good money they feel cheated. So give the replacement or refund the amount with interest and damages.
10. By reading the annexure–K and L of the complainant as stated above, it is made crystal clear that, one Vinod of Dakshin Honda informed the complainant for replacement of crank shaft assembly with crank shaft bearing and they have placed the order for the same and they will inform the complainant, as soon as, the parts arrive, but the partner of the complainant has come to straight conclusion that there is a major problem in the car and it is manufacturing problem from the day when they took delivery. But is it pertinent note that, in the letter of Dakshin Honda, it is not stated that, it is manufacturing problem of the car and it is major problem etc. The whole letter of the Dakshin Honda issued to the complainant is silent on this aspect.
11. Annexure-M is the copy of email letter from the partner of the complainant dated 2-9-2011 stating that they have not received any letter, so they are forced to approach the court for justice. Annexure-N is the copy of email letter dated 2-9-2011 given by the complainant to Takshi Nagai stating that, there is inherent manufacturing defect in the car supplied and requested to replace the car or refund the amount alongwith interest and damages. The complainant has also produced one more email letter dated 9-1-2012 sent by the OP no.1 to the complainant informing that, the necessary parts have been arranged at the dealership 3 months back and repairs have been on hold and approval of the complainant is required and they assured that post repairs the car will be delivered to him in the pristine condition. The copy of email letter sent by the OP dated 9-1-2012 discloses that there is some noise in the engine in the car of the complainant and the OP are ready to repair the vehicle and sought permission to do the repair by replacing the parts, but the complainant has Suo-motu come to conclusion that the car supplied to him was having inherent defect, it is manufacturing problem from the day he took delivery of the vehicle. In fact, he has not proved the manufacturing problem in the vehicle supplied to the complainant. In fact in order to prove the inherent problems in the car the report of expert witness is required. But unfortunately, the complainant has not chosen to appoint the technical person as expert to identify the manufacturing problem i.e. inherent problem in the engine etc. Unless and until, manufacturing defect of the car is proved by report and evidence of the expert witness, it is not justifiable to hold on a solitary testimony of partner of the complainant that, the car purchased by the complainant is having manufacturing defect as annoying noise started eminating from the engine. The oral evidence of the complainant’s partner that, the car purchased by the complainant is having manufacturing defect is not corroborated by evidence of the technical expert. On the other hand, the copy of service check sheet produced by the complainant at Annexure-G shows that, the car of the complainant has run on the road upto 11,994 kms as on 5-8-2011, and running of the car in kilometer as per annexure-G shows that, the car of the complainant is being used by the complainant. But the complainant has not produced service check sheet of earlier service of the vehicle done by the OP to know whether the car of the complainant was having a problem of engine from the day of purchase of the vehicle. The document produced by the complainant dated 9-1-2012 makes it abundantly clear that, the customer relationship management, Honda Siel Cars Ltd, Greater Noida has informed the partner of the complainant that, visit their Area Manager Mr.Basanth Patil and Mr.Ravindra from Dakshin Honda on 13-12-2011 at his place as already informed to him all the necessary parts have been arranged at the dealership three months back and further repairs has been on hold in absence of approval of the complainant. So requested to give approval for initiating the repairs of the car and vehicle will be delivered to the complainant in the pristine condition. But the complainant has neither given any reply to the said letter nor met the manager of the Dakshin Honda to attend the repair of the car to solve the problem once for all. In fact, there is latches on the part of the complainant in not attending its own problem. On the contrary, the OP no.1 has produced reprint of five repair order in respect of car of the complainant. Looking to the repair order of the complainant company dated 22-8-2010 produced by the 1st OP, it is transpired that, there is no reference made in the documents with regard to eminating annoying noise from the engine and inherent defect in the car as stated in the complaint. The second repair order dated 29-11-2010 does not make reference in respect of any annoying noise from the engine and inherent defect in the car, as made out in the evidence of partner of the complainant and averments of the complaint. The third repair order of the complainant produced by the 1st OP show that, wheel alignment done, check cigarette lighter charger 15 AMP fuse replace done, but the said documents is silent about the annoying noise in the engine car of the complainant. The fourth and fifth documents repair order produced by the 1st OP do no show the problem of annoying noise of the car from the engine and inherent defect as stated in the complaint. The problem of noise from the engine of the car has been stated first time only, when the car was taken to Dakshin Honda service station on 5-8-2010 but not in the previous service of the car and for that the complainant has produced annexure-G being service check sheet dated 5-8-2011. The complainant has failed to explain with documentary evidence as to why the said the problem of annoying noise from the engine of the car, was not stated in previous service check sheet. The said act of the complainant in no disclosing the engine problem of its car in the previous service check sheet shows that the complainant has hided the problem of engine defect earlier to 5-8-2011 for the reason best known to it and has come up with this complaint making the said problem as big issue and claimed replacement of new brand car or refund of money alongwith interest and damages. More over in the complaint at para no.12, the complainant has stated that the complainant is a firm involved in industrial electronic business the above said car is a necessity for the company to accommodate and impress foreign delegates and business partners etc. and accordingly the car was purchased in the name of complainant’s firm and not in the name of particular person, whereas in the affidavit of Naresh Chawla who being the partner of the complainant firm has stated in the para no.2 that the said car was purchased for his personal use to maintain his status, symbol of the firm and it is not used for business purpose. So, looking to the averments of the complaint and evidence of partner of the complainant as mentioned above. It is no doubt true that, the purpose for which, the car was purchased as stated in the complaint and purpose for which the car was purchased as stated in the evidence of partner of the complainant are having no consistency and amity. But onething is manifest from the case file and reading of the complaint in between lines, that the car in question was purchased in the name of complainant’s firm and not in the name of individual person of the firm, and it is for the business of the firm and not for the personal use of any of the partner or their family members. So having considered the reason for purchase of the car by complainant’s firm and definition of consumer under section 2 (1) (d) of the CP Act, we are of the considered view that, the complaint of the complainant does not fall within the definition of section 2 (1) (d) of CP Act. So, the complaint of the complainant is not maintainable as the car in question was purchased for commercial purpose.
12. At this stage, the learned counsel for the complainant has placed his reliance on the following authorities.
II (1993) CPJ 974 (Chairman, Ajara Urban Co-operative Bank Ltd- vs- M/s. V.J. & Sons and Another)
“(i) Consumer Protection Act, 1986-Section 2 (1) (d)- Consumer – Ambassador Car – Complainant, a bank, purchased ambassador car for its officers – Had manufacturing defects since beginning – Complainant filed – Resisted on ground that complainant is not a consumer – Whether consumer ? (Yes)”
I (1993) CPJ 268 (Jai Dev Sharma –vs- Wheel world, Staffroad, Ambala Cantt,. & Ors)
“Consumer Protection Act, 1986 – Section 14 (1) – Findings – Car – Manufacturing defects – On 6-7-1990 the complainant purchased a car from opposite party no.1 – vehicle insured – from the very beginning vehicle disclosed inherent defects – On 17-9-1990 it stopped dead on the road – Loaded in a truck - Brought back to the premises of opposite premises of opposite part no.1 and the vehicle burnt down – No redress from the insurance company – Filed a complaint – Cost of the vehicle sought – Whether the complainant is entitled to the return of the price of the defective vehicle supplied? – (Yes)”
II (1993) CPJ 986 (Dr.Geeta Kampani –vs- M/s. Sipani Automobiles Ltd & Others)
“(i) Consumer Protection Act, 1986 – Section 14 (1) (d) – compensation –Car-Complainant purchased a Montana car-Within a period of few months gear box started giving trouble – pressure plate also started giving trouble – Complainant – Whether entitled for refund of price? (Yes)- Whether entitled for damages? (Yes)”
III (1994) CPJ 187 (T.Nagaraju –vs- TATA Engineering & Locomotive Co. Ltd and Ors)
“(ii) Consumer Protection Act, 1986 – Section 2 (1) (d)- Consumer – Car – Complainant purchased car in personal capacity – Using car for travelling in connection with his business – Complaint filed alleging defects in car – Whether consume – (Yes)”
III (1997) CPJ 138 (Delhi Auto Mobiles Ltd and Ors –vs- Paramjit Batta)
“Consumer Protection Act, 1986 – Section 15 – Appeal – Section 14 (d) – Compensation – Scooter – Replacement – Section 2 (1) (d) – Defect – Complainant purchased scooter – Defects from very beginning – Complaint – Defects were continuous – District Forum directed opposite party to replace scooter – Granted Rs.500/- compensation – Appeal – Whether a fit case for directing replacement? (Yes)”
13. We are in total agreement with guidelines of the said decisions. So taking the present case on hand, on the back ground of the said decisions, we are of the opinion that, the fact of the present case on hand and facts and circumstances of the above decision are on different footings, as the complainant of the case on hand has failed to prove with believable material evidence that the car purchased in the name of the complainant was having inherent defect, since beginning. So the said citations do not come to aid of the complainant.
14. The learned counsel for the 1st OP has placed his reliance on the following authority:
II (2004) CPJ 563 (Maruti Udyog Ltd and Anr –v-s P.Rathinadurai)
“-Certain defects did occur which were rectified – Manufacturer not liable to replace vehicle or refund its price merely because some defects identified which can be rectified or replaced – Absence of expert evidence in support of allegation – Deficiency in service not proved – Order directing OP to replace the car or repay the cost and sustainable – Set aside”.
II (2005) CPJ 102 (NC) (Durham Vasantial Dakoria –vs- Bajaj Auto limited and ors)
“Consumer Protection AC, 1986 – Section 21 (b) – Motor Vehicles – Manufacturing defect – Crack developed on chassis within warranty – Forum held vehicle has manufacturing defects, replacement of vehicle directed – order modified in appeal – Replacement of chassis directed – Hence revision if a part could be replaced or defect could be removed, replacement cannot be ordered – No manufacturing defect in vehicle proved-“
I (2007) CPJ 204 (NC) (Ajitha Chit Funds (P) Ltd –vs- TATA Engineering and Locomotive Co Ltd and Ors)
“Consumer Protection Act, 1986 – Section 2 (1) (g) – Motor vehicles – Manufacturing defects alleged - Car giving excessive noise – Car had diesel engine which gives more noise compared to petrol engine – Absence of evidence of expert/engineer to state that car was having manufacturing defects – Further car being purchased for commercial purpose, complainant not consumer – complaint rightly dismissed.
15. Viewing the present case of the complainant, on the back ground of obiter dictum of the said citations relied above by the 1st OP, it is no doubt true that, the complainant has failed to prove with documentary evidence that, the car purchased in the name of the complainant was defective from the beginning. So, in view of the guidelines of the said decisions relied upon by the 1st OP, and material on record placed by the complainant, we are inclined to come to straight conclusion that, the complainant has miserable failed to prove inherent engine defect in the car, and as such, we answer this point in a negative.
16. In view of the negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 31st day of July 2012.
MEMBER MEMBER PRESIDENT
