Date of Filing:30.10.2018

Date of Disposal:23.03.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S,

PRESIDENT

1. The complainant files a complaint with this Commission under Section 12 of the Consumer Protection Act of 1986 with a direction to the OP to  replace the  car of the complainant with registration No.KA-04-MS-2470 make Renault  Kwid and  further direction to pay compensation of  Rs.5,00,000/- and such other reliefs.

2.   The following are the complaint's key facts: 

When the complainant purchased the car from the OP Renault KWID bearing registration No.KA-04-MS-2470 and therefore took the delivery of car on 02.10.2016. Subsequently, the complainant started using the car for his daily and withina few day the complainant noticed somenoisy in the gears and also find that the clutch was hardto use. There after he used to be sudden engine stoppage on the main roads most often when the AC was put on and fuel indicator was not functioning properly, which resulted inindicating wrongreading whichcaused great inconvenience and danger to the complainant.Upon which when the complainant was approached OP-1, they have assured the complainant of prompt attention and solution of the service, the technical defect of the car. The complainant when he left the car with OP-1for attending the above said problems. Thereafter OP intimated that they have rectified the above technical issues of the car and it was once again delivered to the complainant for usage. Subsequently, the complainant using the said car for01 or 02 days, once again the car developed some of the technical and mechanical issues continued once again. The complainant being aggrieved by the performance of the car he has once again approached the OP-1 for the rectification and upon receipt of the car the OP has once again rectified the issues and car was delivered to the complainant for his usage. After taking delivery of the car when the complainant using the same,once again he started finding similar technical and mechanical issues in the same car. Upon which the complainant being aggrieved by the non functioning of the car he approached the OP for replacement of the said car or to pay the value of the car along with other reliefs as the said car is having manufacturing defect. In such event when the complainant approached the OP, the OP neither responded nor complied the demands of the complainant. Under such event the complainant was forced to maintain the present complaint for the reliefs as prayed for in the complaint.

3. The OPs represented by their counsels and filed written version. They denied the complainant’s allegations and also any deficiency of service to the complainant. The specific contention of the OPs on the allegations of the complaint that the complainantt has merely made a mechanical and technical issues in the said car, which is mere allegations which has to not substantiate any expert report on the part of the manufacturing defect in the said car. The contentions of the OP is that even though what ever allegations made against OP alleging some mechanical issues in the said car requires with their same expert service men of their establishment.  In spite of that the complainant alleges some of the defects in the said car.  When such being the case the burden of proving the fact, but proof of manufacturing defect in the said car always lies on the person who ever makes allegations by any technical  or mechanical issue pertaining to said car. In the absence of any expert report in order to substantiate the contentions of the complaint the OP contended that the allegations of manufacturing defect is to be held as not proved and for the want of expert and technical report issue the complaint deserves to be dismissed.

4. The  complainant and OPs not filed their chief examination affidavits.

5. Heard arguments. The matter is posted for orders.

6.  The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

7. The findings on the above points are as under:

Point No.1          :       Negative

Point No.2          :       As per final order

REASONS

8. POINT NO.1:- It is very important to note that purchase of car from the OP by the complainant and it is used for sometime is not in dispute.  Only the contention of manufacturing defect in the same car which has alleged to be proved by the complainant with an expert report. On this issue during the proceedings of the complaint the complainant has maintained Interlocutory Application Under order XXVI Rule 9 CPC seeking for appointment of an expert as Court Commissioner. In the complaint in order to examine the said car and also to submit the report on technical and mechanical issues and also alleged manufacturing defect. The IA came to be allowed and Commission has directed both the parties to suggest the name of the Court Commissioner in order to  examine and submit the report on the technical issues of the said car. Despite of the several opportunities the complainant has faield to suggest the name of the Court Commissioner even though appointment of the court commissioner is sought by him only and the proceedings was dodged on the same stage for 02 years. On 16.05.2022 the complainant has filed memo, wherein by way of this memo they made prayer that the IA for the appointment of the Court Commissioner which is pending to dismissed as not pressed and as per the prayer of the memo the matter is posted for the arguments. Neither the complainant nor their counsel are present. Despite of sufficient opportunity, the matter is posted for orders on merits of the complaint.

9. In view of the above events and the conduct of the complainant in the proceeding is to be observed  very carefully despite of the IA filed for the appointment of court commissioner of an expert in order to get the report on the mechanical issue in the said car. Even when the IA is considered as allowed  nothing prevented the complainant to suggest the name of an expert person as Court commissioner. It is surprise move that after the commission directed the complainant to suggest the name of the court commissioner belatedly the memo is filed by the complainant by making the prayer that the IA which is allowed and pending for consideration is to be treated as not pressed.  This act of the complainant appears to be suspicious one.  When once the complainant decided to take the expert report in the complainant in order to substantiate his complaint allegations as against the OP company and particular to the issue of said car nothing has prevented the complainant to proceed further in order to get the report pertaining to the car and it is manufacturing defect as alleged in the complaint. When the commission has allowed the appointment of the court commissioner IA, subsequently withdrawal of the IA by way of filing of memo by complainant needs to be explained by the complainant. In the absence of  any explanation for withdrawal of the Interlocutory Application  the commission observed as follows.

10.   In view of the above facts and by considering the contentions of both parties and also on the conduct of the complainant it is observed that the mechanical and manufacturing defect issue in the said car needs to be proved by way of getting or adducing an expert evidence on the said issue. Surprisingly, even though the commission permitted the complainant for the appointment of court commissioner to get the report, by withdrawing the said IA the complainant has shown negligence and carelessness attitude towards his complaint allegations. It is also opined that when ever there is defect of technical or manufacturing defect in the car or any product when the same  is vehemently agitated by the complainant the burden of proof the allegations always lies on the person who ever makes allegations and the facts of allegations needs to be proved by way of producing expert report on the said facts.  The commission functions as layman  whenever  there a mechanical issue  involved in the complaint, it is bounden duty of the complainant to give an expert report on the issue, which is alleged in the complaint, without which that the commission  will not be in a position to adjudicate the complaint on merits of the case. Only with the aid and assistance of an expert report the issue of the said care could be disposed on the merits.

11. Here from the conduct, complainant has failed to obtain an expert report on the complaint allegations. When such being the case the complaint maintained by the complainant is liable to be dismissed for want of an expert report on the mechanical and manufacturing defect pertaining to the said car.

12.    In view of the above discussion, the complaint is deserves to be dismissed. Accordingly, the Point No.1 we answer Partly in Negative.

13. POINT NO.2:- In the result, we passed the following:

ORDER

1. The complaint filed by the Complainant U/s 12 of the Consumer Protection Act, 1986 is dismissed. No costs.

2. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 23^rd  March 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

         MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit: Nil

Documents produced by the complainant:

Witness examined on behalf of the OP-1,2 & 3 by way of affidavit: Nil

Documents produced by the OP-2 & 3:

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*