Sri Utpal Kumar Bhattacharya, Member
Instant Appeal has been filed u/s 15 of the C.P Act, 1986 by the Appellant/Complainant challenging the judgment and order No. 25 dated 22.08.2017 passed by the Ld. District Forum, Kolkata Unit—I (North) in Complaint Case No.CC/12/488 dismissing the complaint on contest against the Respondent/OP Nos. 1 and 2 and ex-parte against the Respondent/OP No. 3.
Succinctly put, the facts relevant for disposal of the instant Appeal were that the Appellant/Complainant, being convinced by the advertisement highlighting an attractive oil service, purchased one Nano car from the Respondent/OP No.3 who was the dealer of the Respondent/OP No. 1 and Respondent/OP No. 2, the manufacturer of the said car and the local officer of the said manufacturer respectively. The Appellant/Complainant, after purchasing the car, realized that the oil service which the car was giving was much less than that assured in the said advertisement. The Appellant/Complainant brought the matter to the notice of the Respondents/OPs, claiming from them appropriate corrective measures. No effective step being found forthcoming from the Respondents/OPs, the Appellant/Complainant filed the Complaint Case before the Ld. District Forum praying for refund of Rs. 2,29,442/-, being the cost of the car along with compensation and litigation cost to the tunes of Rs. 5,00,000/- and Rs. 20,000/- respectively. The impugned judgment and order originated from the said Complaint Case.
Heard the Appellant/Complainant and Respondent/OP Nos. 1 and 2 through their respective Ld. Advocates.
Ld. Advocate appearing on behalf of the Appellant/Complainant referred to the newspaper advertisement wherein a run of 25 kilometer per litre oil was promised. As he submitted, realizing that the car was not giving satisfactory oil service, the car was tested at least three times keeping the Respondent/OP No. 3, the dealer, aware of such initiative. The 1st, 2nd and 3rd testing reports at running pages 35, 56 and 63 indicated run per litre as 16.30 Km, 10.33 Km and 10.50 Km respectively which, in all three instances, were much less than the service assured in the said advertisement. The matter was brought to the notice of the Respondents/OPs who did not pay heed to the Appellant/Complainant’s request of taking effective measure for addressing his grievance. The Nano cars, as he continued, had some manufacturing defects which made the Appellant/OP manufacturer withdraw the car from the market.
The Ld. Advocate, in view of the irregularities as above on the parts of the Respondents/OP Nos. 1 and 2, prayed for the Appeal to be allowed setting aside the impugned judgment and order.
The Ld. Advocate appearing on behalf of the Respondents/OPs, contrary to the above submission, pointed out that the fuel consumption of a car depended upon different factors like road condition, efficiency of the driver, usage of the car and the period of such usage etc.
The Ld. Advocate submitted further that low oil service was no manufacturing defect. The tests stated to have been conducted by the Appellant/Complainant were not in the knowledge of the Respondent/OP No. 1 and Respondent/OP No. 2. As submitted, since the Respondent/OP No. 3 who might have had some knowledge about the said tests was absent from hearing, the bench probably had no scope to ascertain as to whether the tests were at all conducted or if conducted, procedure for conducting such test was properly observed.
Still, as he continued, the Respondent/OP manufacturer filed a petition before the Ld. District Forum praying for testing the car by a technical expert to ascertain whether there was really any manufacturing defect. The order passed in the Revision Petition preferred before this Commission against the order of the Ld. District Forum in respect of the said petition, page Nos. 83 and 84 of the record, as contended, affirmed the rejection order of the said prayer passed by the Ld. District Forum leaving in the hands of manufacturer no scope of ascertaining the nature of defect and the reason for poor oil service, as alleged.
Ld. Advocate continued to submit that the Appellant/Complainant did not even avail of the free services offered to him in time. The service history attached with the BNA reflected no complaint about poor oil service. Moreover, as reported, the car had come across an accident. As he continued, the Respondent/OP manufacturer did not have any liability in respect of the car as the warranty of the car ceased to exist after the accident that the subject car had met with.
As continued further, the subject car undertook a run of 50,000 Km without any complaint against oil service. Therefore, manufacturing defect did not sustain and the manufacturer should not be made liable in absence of any manufacturing defect.
With the above submission, the Ld. Advocate prayed for the Appeal to be dismissed affirming the impugned judgment and order.
There was no representative from the Respondent/OP No. 3.
Perused the papers on record and considered submissions of the Ld. Advocates of the participating sides. It appeared that the complaint was limited to unsatisfactory oil service of the car which, as contended, was less than the run per litre of oil as was assured in the advertisement. It is always true that the oil service of a car may vary with different factors like the condition of the road on which the car was being plied, efficiency of the driver running the car, the age of the car, the coverage in kilometer it had already made etc.
It is needless to say that the roadworthiness of the car is normally certified by concerned authorities after all aspects of the vehicular efficiency are ascertained through a series of vigorous tests. Therefore, question of manufacturing defect does not arise unless allegation to that aspect is certified to be true by any competent technical expert after examining the car. The Respondent/OP Nos. 1 and 2, out of their own accord, intended to appoint a technical expert for ascertaining the manufacturing defect, if any, in the said car and a petition was placed before the Ld. District Forum seeking clearance to that effect. The petition was rejected by this Commission in Execution Case No. RP/47/2014 affirming the rejection order of the petition passed by the Ld. District Forum.
Further, the tests substantiating run lesser than that as advertised, as appeared, were conducted not in presence of the manufacturer or his representative which left reasons against acceptability of the said report.
We had an uncontroverted submission to the effect that the Respondent/Complainant did not even go to obtain in time the free services as offered by the Appellant/OP manufacturer to enable it to have a preliminary idea about the condition of the subject car. The reports submitted along with BNA revealed no complaint against oil service of the car. The complaint against the oil service came to the knowledge of the Appellant/OP when the car had already run 50,000 Kilometer.
In view of the facts and circumstances narrated above, we do not find any reason to consider that the car was having any manufacturing defect. It goes without saying that the manufacturer is only liable for any manufacturing defect. So, where there was no manufacturing defect, there was no liability for the manufacturer. The absence of manufacturer’s liability became more apparent when it revealed that the car had met with an accident invoking the reason for warranty of the car being considered to be ceased.
The Respondent/OP No. 3, in fact, had no liability for the defect of the car as he was only the dealer and distributer of the car and was never responsible for any type of defect of the car as alleged in the complaint.
Above being our observation, we are of the considered view that the impugned judgment and order was rightly delivered and did not deserve any intervention from this end.
Hence,
ORDERED
that the Appeal be and the same is dismissed. Impugned judgment and order stands affirmed. No order as to costs.
