Sri Shyamal Gupta, Member

Both the Appeal bearing Nos. A/1347/2014 and A/282/2015 originate out of the Order dated 25-09-2014 passed by the Ld. District Forum, Howrah in C.C. No. 157/2013 whereof the complaint has been allowed on contest.

In a nutshell, case of the Complainant is that he purchased the subject vehicle from the showroom of the OP No. 1.  While the Complainant paid Rs. 1,09,209/- from his own coffers, rest of the amount, i.e., Rs. 4,36,000/- was financed by the OP No. 2.   It is alleged by the Complainant that soon after purchase of the car in question, he faced lot of difficulties with the said car for which he had to repeatedly sent the subject vehicle to the service centre for the purpose of carrying out necessary repairing.  Being frustrated with the performance of the car, the Complainant lodged complaint to the HO of the OPs at Pune, but to no avail.  So, the complaint was filed before the Ld. District Forum.

OP No. 2, in its defence, stated that the Complainant used the car for commercial purpose.  Therefore, the complaint was not maintainable.  It further stated that being a financier, it was in no way liable for delivery or quality of the vehicle.

OP No. 3 also contested the case.  By filing a WV, it is stated by this OP that cars and vehicles manufactured at its plant are thoroughly inspected for control system, quality checks and test drive before passing through factory works for despatch to authorized dealers appointed on a ‘principal to principal’ basis for selling purpose.  It is further stated that the vehicle in question met an accident and brought to the workshop of the OP No. 1 for necessary repairing.  In this regard, it is pointed out by this OP that as per Clause 7 of the terms and conditions of warranty was not applicable to any repair or replacement as a result of accident or collision.  This OP denied any knowledge about the instances of repairing through the OP No. 1.

Decision with reasons

We have heard the Ld. Advocates of the parties and gone through the material on record carefully, including the citations relied upon by the parties.

It appears from the petition of complaint that since delivery of the car on 14-12-2012 till 15-05-2013, the subject car had to be taken to the service centre of the OP No. 1 nine times for the purpose of repairing of one problem or the other.  Needless to say, it is an apology of a product if the same warrants repairing at such frequent intervals.  Although the OP No. 3 attributed it to rash and negligent driving, we do not come across any proof to that effect.  Further, in terms of Clause no. 5 of Warranty terms & conditions, the warranty does not cover damage to parts due to negligent or improper operation. Given that warranty benefit was extended to the Complaint most of the times show that the allegation of rash/negligent driving was purely motivated having no basis at all. 

It is also alleged by the OP No. 3 that the subject car met an accident which caused damage to the said car.  It appears from the record that the OP No. 1 on 10-04-2013 raised a bill amounting to Rs. 8,482/- towards repairing charge and in the said invoice the type of service request was mentioned as ‘accident’.  However, Ld. Advocate appearing on behalf of the Complainant strongly disputed such fact stating that had the car indeed met an accident, the Complainant would definitely lodge insurance claim and also necessary police case filed.  He, therefore, put the OPs to strict proof thereof. 

Further, even if it is assumed for the sake of argument that the subject car indeed met an accident for which the same had to be taken to the service centre of the OP No. 1 on 09-04-2013, OPs could not give any satisfactory reply as to why the car developed problems five times in a row before that day.  

The OP No. 3 though pitched hard to escape its liability towards the car stating that the Complainant did not furnish any expert opinion to drive home the allegation of manufacturing defect in respect of the car, be it mentioned here that in the opinion of the Hon’ble Apex Court, requirement of expert evidence cannot be imposed upon the consumer. When fact speak for itself, principle of `res ipsa loquitur has to be applied.

In a case where negligence is evident, the principle of res ipsa loquitur operates and the Complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence [Spring Meadows Hospital v. Harjol Ahluwalia (1998) 4 SCC 39 relied upon].

Irresistible conclusion in the case is that there exists a manufacturing defect in the car and therefore, the Ld. District Forum rightly allowed the case in favour of the Complainant.  However, in the facts and circumstances of the case, the impugned order is modified to some extent.

Hence,

O R D E R E D

That A/1347/2014 and A/282/2015 be and the same are dismissed and allowed in part, respectively.  The impugned order is modified as under.

OP No. 2 shall refund the sum of Rs. 2.13.624/- to the Complainant within 45 days hence.  OP No. 2 is exonerated of all other liabilities towards the Complainant.  OP No. 3 shall make good the loss suffered by the OP No. 2 in this regard. Rest of the impugned order shall remain intact.

Let the original copy of this order be kept in the case record of A/1347/2014 and photocopy thereof in the file of A/282/2015.