ORDER

( Passed this on 12^th October, 2017)

Shri Shekhar P. Muley, President

01.      This is a complaint of unfair trade practice against a car manufacturing company, its local dealer and an authorised work shop.

02.    The complainant is a teacher by profession and her husband run a business of supply of medical equipments in wholesale. Hence he was in need of a four wheeler for his use. The OP1 is said to be in business of manufacturing and sale of cars. In fact, it is OP3 who was subsequently impleaded, is a manufacturer company. The complainant purchased one car, I-10 model LPG version of the OP1 from local dealer, OP2 for Rs. 4,78,000/-. It was registered as MH-31-EA-3280. Delivery was taken on 11/6/2012, though it was to be delivered on 6/6/2012. At the time of delivery there was a dent near the petrol lid. The OP2 assured that it would be repaired and the company would provide her additional accessories. But the OP2 did not fulfill its promise. After taking delivery the husband of complainant noticed that  air conditioner of the car was not working and the car was producing strange noise. The car was not running smoothly on LPG mode. However he waited till the car run 1180 Km. Since the problems persisted, the car was handed over to the OP2 on 16/6/2012, i.e. just 5 days after taking delivery. After repairs the car was given to the complainant. But again on 22/6/2012 after running 1581 Km. It was again handed over to OP2 for repairs and free service. The car was lying there for 3 days. But even after servicing and repairs the problems continued and it was required to take to the OP2 on and off. Since taking delivery of the car the problems were there and in spite of having the car, her husband was required to hire vehicle for his use and for which he incurred Rs. 60,000/-.

03.    It is alleged the OP2 sold her used car instead of new by accepting cost of new car and suppressing material facts. This amount to unfair trade practise. From the insurance policy of the car it appears that the car was earlier sold to other person, whose name was later erased from the policy. When on 30/10/2012 the car was given to OP2 for repairs, it was informed to her that it would require Rs. 35,000/- expenses. But the complainant was not ready to pay as there was manufacturing defect in the car. After some correspondences the OP2 shown readiness to repair provided she paid 30% expenses. But she was not ready. Then the OP2 was ready to bear full expenses and after repairs she was asked to take delivery on 10/1/2013. She informed OP2 she was not interested in taking delivery and requested to refund the amount with 24% interest along with Rs. 5 lakh compensation. Since her request was not complied, she filed this complaint for aforesaid reliefs.

04.    The OP 1 and 2 in their joint reply stated as the allegations are about manufacturing defects, the manufacturer is necessary party, but was not joined and hence the complaint s bad for non joinder of necessary party. (it was later joined). Further the car was being used for commercial purpose. Hence the complainant is not a consumer. Denying that the OP1 is a manufacturer of cars, it is stated it is a dealer engaged in sale of cars. It is admitted the complainant purchased the said car and it was delivered to her on 11/6/2012. itis denied there was a dent at the petrol lid and it was promised to be repaired. It is also denied there were various problems in the car since beginning. The car was brought to OP2 for routine check up. The car was accepted by her after getting satisfied. It is stated the car was being used extensively on rough road. After free service nobody from her side came to take delivery, hence it was lying there. The car had run 17520 Km in just 141 days which shows it was in good running condition and whatever problems were there , the same were due to normal wear and tear.

05.    It is stated after third free service, on the request of complainantś representative it was noticed the engine was overheating and the car needed replacement of some parts for which Rs. 29,996/- was to be incurred. As goodwill gesture the OP3 was ready to bear complete expenses. The car was then repaired and she was intimated to take delivery. But there was no response. Thus denying there was manufacturing defects since beginning, it is further denied old car was sold to her in the name of new car.  It is denied her husband incurred expenses of Rs.60,000/- for hiring vehicles. It is thus stated the complaint is false and groundless and the same be dismissed.

06.    The OP3 failed to contest the complaint despite service of notice. Hence proceeded ex-parte.

07.    Heard.

08.    At the outset we would like to state that the complaint pertains to manufacturing defects in the car, therefore, it is only the manufacturer of the car who can be said to be responsible for the defects. The authorised dealer cannot be held liable for the defects. The OPs 1 and 2 are, in fact, same entity and is an authorised dealer of cars manufactured by the OP 3. As such, the complaint against the OPs 1 or 2 is not maintainable and so no direction can be issued against them. A reference may be had to the case of Jaika Automobiles Pvt. Ltd. v/s Leela Sahu 2017 (2) CLT 474 (NC)

09.    The OP 3 has not contested the case as it failed to appear in the proceeding despite service of notice. So, the complaint against the OP 3 without contest is likely to be allowed. But considering rival arguments of the counsels for the parties on merits of the case, we deem it proper to assess the case on merits.

10.    It is alleged when delivery of the car was taken on 11/6/2012 there was a dent near the petrol lid, which was assured to be repaired, but not repaired. But this allegation of noticing a dent appears false from the delivery chalan. Because the complainant has written on the chalan that she received the car in proper condition and to her complete satisfaction. Her own document does not support her allegation. Further, after taking delivery it was noticed that the car was not running smoothly on LPG mode, air conditioner was defective and there was a strange noise in the car. After running the car for 1180 Kms it was given to the OP2 for repairs. But even after repairs it was again given for repairs. Thus it is alleged that the problem in the car was persistent and it was to be taken to the workshop on and off for repairs. Therefore it is contended when the car was required to be taken for repairs frequently, that itself indicates there were manufacturing defects in the car. It cannot be disputed from the documents that the car was indeed taken for repairs quite frequently.

11.    Considering these problems and particularly dent near the petrol lid, the complainant apprehends that a used and second hand car was sold to him on the price of new car. It is also contended the insurance cover note of the car has overwriting in the column of engine and chassis numbers and that gives support to her apprehension. Admittedly there is overwriting in the cover note. But that itself is no proof of the fact that a second hand car was sold to her. The cover note was issued on 7/6 2012. That falsifies her allegation that the car was delivered to her on 11/6/2012 instead of 6/6/2012.

12.    Whether or not the car had manufacturing defects is a question of fact which needs to be proved as any other fact. Generally manufacturing defects  being technical in nature, some expert evidence is necessary to prove it, though in all cases it is not necessary. Ld counsel for the complainant submitted no expert evidence is necessary, because frequent repairs of the car itself proves material defect in it. Ld counsel has relied on some judgments.

1. Hind Motors Ltd. v/s Lakhbir Singh I (2014) CPJ 120 (NC)

2. Sas Motors Ltd v/s Anant Haridas Choudhari III (2013) CPJ 520 (NC)

3. Mahdovi Motors Pvt Ltd v/s Pravenchandra Shetty IV (2013) CPJ 410 (NC)

4. Tata Motors v/s Rajesh Tyagi 2014 (1) CLT 238 (NC)

          Except two judgments at Sr No. 2 and 4, other two judgments are not applicable to the facts of the present case, because in one case expert evidence was produced and in other there were major repairs and one year old car was sold without disclosing year of manufacturing.

13.    It is to be noted that even the complainant wanted to have expert opinion. Since she could not comply the terms of the expert services, no expert opinion could be obtained. In the following judgments it is held in absence of any credible evidence regarding manufacturing defects, replacement of vehicle or refund of entire price is not justified or no inference of manufacturing defects can be drawn merely because the vehicle was taken to garage for repairs on one or two times.

1. Ajay Kumar Rhakur v/s Jaiswal Motors II (2017) CPJ 387 (NC)

2. R.C. Grover v/s Tata Motors 2015 (3) CLT 93 (NC)

3. Sukhvinder Singh v/s Classic Automobile I (2013) CPJ 47 (NC)

14.    We would have accepted this contention in absence of any contest from the manufacturer (OP3), but for some facts brought to our notice by the Ld. Counsel for the OP 1 and 2. According to the complaint soon after taking delivery of the car, some problems in the car surfaced and so just after 5 days from delivery it was to be taken to the OP2. What is pertinent to note is that in just 5 days the car had clocked 1180 Kms. Then in just 15 days it ran 1540 Kms. In 4 months the car had run 17,520 Kms. It would be useful to give a chart as under.

          From this table it can be said that the car was used extensively. No vehicle will be used so extensively for private purpose and therefore it is contended the car was being used for commercial purpose. In this respect our attention is drawn to one letter dated 26/11/2012 written by the complainant to the OP2. It is stated therein that during the period the car was given for repairs, her husband had to hire other vehicle for his personal and business purposes which caused financial loss. It is thus contended, the car was being used for some business purposes and therefore it was used so extensively during a short period. It is also to be noted that the complainant has filed some bills of a Travel Agency to show her husband was required to hire vehicle. The bills do not inspire confidence for number of reasons. There is no date on any bills. All the bills are in serial numbers, though vehicles were hired on different dates, as if, except the complainant no other customer hired a vehicle from the agency. It further reveals the vehicles were hired for couple of days but no halting charges were applied. Besides, the bills are in the name of the complainant´s husband. He is not a party to the case.

15.    Though it is a fact that the car was required to be taken to garage for repairs, the question is whether that was due to manufacturing defects or due to extensive running of the car. Because, if the repair orders are perused on first date no complaint of poor functioning of air conditioner and strange sound were reported. It was only on 20/8/2012, when the car had run 8462 Kms, problems such as air conditioner not working, body noise, poor mileage, etc were reported. This could be due to extensive running of the car.

16.     The complainant has alleged that accidental and used car was sold to her, because there was a dent on the petrol lid. However, none of the job orders show such defect was ever mentioned by the complainant. There is no allegation of meter tampering. Therefore the evidence produced by the complainant falls short to prove the car has inherent defects. It is therefore necessary to have expert evidence in this case. In absence of such evidence, it is not possible to accept the complaint of manufacturing defect in the car. It is not the case that the car was not repaired by the OP2. Whenever complaints about the functioning of the car were made, the same were promptly attended to. It is also pertinent to note the OP3 was ready to repair the car by bearing 70% expenses and the complainant was informed and requested to give her approval to carry out the repair job. But she did not respond. Thereafter the OP3 showed its willingness to bear entire expenses of repairs and spare parts. The decision was communicated to her vide e-mail dated 3/1/2013. The car was even repaired in January 2013 and she was intimated and requested to take delivery. But she did not take delivery despite reminders. On29/1/2013 she wrote a letter to the OP2 that she had rejected the offer and so not interested in taking delivery of the car, but she wanted refund of the cost of the car with compensation. It shows she was interested only in refund of cost with compensation, without satisfying herself about repairs of the car. When the car was repaired without charging anything, there should not have been any reason for the complainant not to take delivery of the car. Therefore in our opinion the complainant should take trial of the car and take its delivery, instead of seeking refund of its cost with compensation. These letter are filed by the complainant herself, therefore the averment of the OP2 in this respect gets support.

17.    In the result, the complaint is liable to be dismissed. Hence, the following order.

ORDER

1. The complaint is dismissed with no order as to cost.
2. The complainant, however, is free to take delivery of her car from the OP2, since it has been repaired.
3. Copy of the judgment/ order be given to both the parties, free of cost.