BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 27th January 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.251/2012
(Admitted on 03.08.2012)
Mr. Krishan M
S/o M. Ganapathi Bhat,
Aged about 26 years,
No. 1.128, Anugraha House,
Swamilapadavu, Bajpe,
Mangalore.
….. COMPLAINANT
(Advocate for the Complainant: Sri SD)
VERSUS
1. Managing Director,
Chevrolet Sales India Pvt. Ltd.,
Block ‘ B ‘ Chandrapura,
Industrial Estate,
Halol Panchamahals, Gujarat.
2. Proprietor,
Front Line Auto Mobiles,
N.H. 17 Kuloor,
Mangalore.
….......OPPOSITE PARTIES
(Advocate for the Opposite Parties No.1: Sri DR)
(Advocate for the Opposite Parties No.2: Sri NBPR)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant case is he purchased Chevrolet Cruze L.T Saloon manufactured by opposite party No.1 sold by opposite party No.2 on 25.11.2010 for a total of Rs.12,16,000/. It was purchased for Self Employment purpose to eak out his livelihood. The vehicle has 3 years or 1,00,000K.ms of warranty from the date of purchase. On the date of sale of car on 25.11.2010 there was some accidental repair in the showroom. The pre delivery check up details issued by 2nd opposite party clearly showed on 26.11.2010 the car was late clutch and cylinder was replaced. On 30.11.2010 and the body denting were repaired there were lot of problems to the vehicle on07.12.2010 and on 12.2.2011 noise from the vehicle gear at the time of the gear shift the shock absorber was faulty and the same was replaced on 25.2.2011 and the brake was not effective. There were numerous problems on complainant’s vehicle leading to stoppage of vehicle in the midway causing inconvenience to the customer the complainant. In view of defects and recurring defects in the vehicle due to manufacturing defect legal notice were issued and served on the opposite parties. The 2nd opposite party has suppressed the damage caused of the car and after sale dent was removed and repainted by the 2nd opposite party. When vehicle was sold as a brand new one and factory fresh to the complainant’s knowledge as the paint was shading considerably at specific repaired portion. Hence seeks refund of the amount of Rs.12,60,000/ with 12% interest from 25.1.2010 till payment, Rs.1,00,000/ towards compensation and Rs.50,000/ as cost.
II. Opposite party No.1 in the written version clams when a vehicle is delivered to the customer after purchase it is require to confirm to the expected from a brand new vehicle. If there are any services required to be undertaken on the vehicle the same in fact befalls to be undertaken as a matter of duty on part of seller. The automobile passenger car is extremely complex machinery consisting of thousands of parts and components including furnishings, upholstery, interiors and related body work. The allegation of vehicle had problem from the beginning is not correct. Had there been any problems in the vehicle in the beginning would not have run at a daily sustained rate of running of over 65 km since its purchase. Since the purchase of the vehicle in a near one and a half years it had aggregated 36977 km even as per complainant says. As to noise problem at the time of gear shift the present vehicle model is finding sale in the market only after stringent statutory testing on all material counts as required under the law. A person with hypersensitivity with noise or having wholly unrealistic expectations or standards may perceive noise where by ordinary and reasonable standards and expectations, there stands to be no abnormal noise. Whenever a concern is reported noted down in the job card of the vehicle is very much possible to be not on account of any manufacturing defect or abnormal but on the account of improper handling. The mere fact that a concern reported is noted down in the job card does not mean it is present as a matter of manufacturing defect. The alleged fault in this is denied. Damage to the clutch mechanism take place not from the mechanism but of overriding of the clutch. Damage to the bumper stand to be on account of a mishap for which the responsibility lies on the complainant unless and until the complainant produces credible, reliable expert evidence from even competent expert agencies same is unworthy of acceptance. Proceeding with the respect to goods and service for commercial purpose are not maintainable under the C P Act. Hence seeks dismissal.
2. Opposite party No.2 in the written version contends the complainant is to prove on 7.1.2010 and on 12.2.2011 the vehicles gear was having problem at the time of shift as stated in the complaint. The problem was attended to by Bangalore branch. Bangalore branch is a necessary party to be represented. Alleging that there is no deficiency in service seeks compensation to allegation made in the complaint against opposite party No.2.
3. In support of the above complainant Mr. Kishan M filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C12 as detailed in the annexure here below. On behalf of the opposite parties Mr. Rajesh Pawar (RW1) Authorized Representative and Mr. Vinod M Sharlekar (RW2) Managing Partner also filed affidavit evidence and answered the interrogatories served on them.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer within the meaning of the words used in the C P Act?
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of arguments. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties. Our findings on the points are as under are as follows:
Point No.(i) : Affirmative
Point No. (ii) : Affirmative
Point No.(iii) : Negative
Point No. (iv) : As per the final order.
REASONS
IV. POINTS No. (i): Section 2 (1)(d)(i) reads thus:
(d) “Consumer” means any person who
(i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
[Explanation:- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]
In the case on hand the complainant asserts he purchased the vehicle in question for earning his livelihood with opposite party No.1. On the other hand denied his allegation and asserted that no one could invest an amount of Rs.12,16,000/ for purchasing the vehicle to earn his livelihood. But we are not impressed with this stand of opposite party that complainant’s assertion that complainant purchased this vehicle for making of his livelihood is not controverted by cogent evidence by opposite party. Hence we are of the view that in view of explanation of (i) the case of the complainant falls within in the section 2(1)(d)(i) of C P Act. Hence objection on this count of opposite party are rejected. Hence we answer point No.1 in the affirmative.
POINTS NO (ii): The complainant claims that the purchase of the vehicle in question from opposite party No.2 manufactured by opposite party No.1 on 25.11.2010 and before delivery of the vehicle to complainant certain repairs were carried out. The carrying out of repair in some many words is admitted in their written version both by opposite party No.1 and No.2. However suffice to mention the opposite parties denied the nature of damages observed by the complainant like sound in the gear noise while reversing the car and above repainting done just before delivery of the brand new vehicle to complainant. These facts in our view are indicative that of existence of facts pleaded by complainant and denied by opposite parties. As such there is consumer dispute between the parties within the ambit of section 2(1) (e) of the C P Act. Hence we answer point No.2 in the affirmative.
POINTS NO (iii): To substantiate the claim of deficiency in service and that there was manufacturing defect in the vehicle given at the time the vehicle was deliver to the complainant. The first and foremost things to be observed in question no. 3 posted to opposite party RW1 is quote ‘do you dispute the detail show in the service detail at Ex.C5 no direct answer was given by opposite party No.1’ in the reply. Instead a clubbed answer for question no.1- 9 it is nothing but reproduction of the assertion made in the written version. He also mention during the course of shifting the vehicle from manufacturer to the showroom of the dealer accident occurred etc was responsible to occur which needs to be appropriately to be remedied. If what is mentioned at Ex.C5 is only in the respect of body repair and painting this explanation defect could have been accepted by us. Ex.C5 dated 25.11.2010 mentions PLATE CLU PRESS WI late and release bear in and about PLATE, CLU DRVN WI as replaced under wty possibly to mean warranty. Ex.C5 also details the various works attended on the vehicle. There are 21 items attended as per the work commencing from 7.5.12 till 7.10.2010 to mention some of the detail of the mal functioning we tabulate it as follows:
Chronological reference to the date with
1. Sl.No. 21 given at Ex.C5
2. km. 1087
3. The invoice number/date: 2010002110 / 07.12.2010
4. Details of malfunction: CHK GEAR TIGHT-CARRY OUT RAC CHK UP-
Ongoing through this portion of the statement from the very beginning i.e. the date of purchase on 25.11.2010 innumerable complaint and repair attended on that the complainant in respect of vehicle by the complainant attended to.
2. The learned counsel for complainant has drawn our attention into a reported order in Scooter India Limited and Anr. vs. Madhabananda Mohanty & Ors. II (2005) CPJ 136 (NC) wherein it is held:
Consumer Protection Act, 1986-Section 21(b)-Motor Vehicles-Auto-rickshaw purchased on hire purchase basis-vehicle not giving proper service right from day one-Manufacturing defects alleged-complaint dismissed by Forum, relegated to Civil Court-Order set aside in appeal- Damages and costs awarded-Hence revision-New vehicle is bound to be mechanically perfect-if the vehicle is defective, consumer entitled to seek replacement or refund of price-Warranty given for whole of vehicle and would be breached even if no individual part could be identified as defective-Expert testimony not always necessary though if given will add weight of evidence-Use of vehicle must have been substantially impaired due to defects-Manufacturer must maintain sufficient repair facilities reasonably close to all areas where vehicles are sold-Accessibility of repair facility implicit when new vehicle sold-Order of State Commission upheld.
Like in the facts of the reported case the case on hand also the vehicle started giving trouble even before delivery of the vehicle purchased by complainant to him by opposite party No.2 if that is not sufficient in the case on hand on 7.12.2010 within 15 days from the date of delivery there were problems with the vehicle reported to and attended by opposite party. In fact in the service attended to on 12.2.2011 as per the copy of the retail invoice produced by complainant indicates from right hand noise not fixed and that it will be covered in the next service. On 8.8.2011 as seen from the detail invoice copy of which is produced indicates certain repair effective with total bill amount of Rs. 29,524/ . However this bill pertaining to accidental job and cannot be attributed to any manufacturing defect in the vehicle.
3. As can be seen from the copies of the retail invoices produced by the complainant at the time of evidence along with affidavit evidence by opposite party No.2 ongoing through these copies of the invoices produced they does not indicate major problems with the vehicle almost all the repair works undertaken described as running repairs and some replacements of 2011 and in June 2012 of clutch going down. As to clutch going down, it is indicative of resting foot on the clutch while running the vehicle to be considered as due to faulty driving only. As such we are of the opinion that as seen from the reported judgment in Scooter India Limited & anr case it was the case of auto rickshaw previews used as an auto converted and then sold as a new vehicle there was also no facility available for carrying out the repairs. As can be seen from the fact of the case on hand repair were effected on the date of sale before delivery of the vehicle. Considering that the complainant did use the vehicle on road regularly for one and half year aggregating more than 35,000 km indicates the healthy condition of the vehicle and the regular maintenance of the vehicle were undertaken by opposite party. The repair charge details produced by complainant Ex.C12 along with affidavit reply evidence does not indicate regular repairs other than running repair carried out except on 2 of the occasion one of which is as a result of accidental repair for which the complainant cannot blame opposite party. Hence we are of the opinion that the allegation of the complainant of manufacturing defect in the vehicle cannot be accepted as true.
4. The learned counsel for complainant to substantiate the claim as to manufacturing defect with reference to the notice in the job card the details of which are at Ex.C5 referred earlier indicate there was inherent manufacturing defect in the vehicle. On this count reference was made to a reported order of Delhi State Consumer Disputes Redressal Commission, New Delhi in Sunil Bhasin vs. Tata Engg & Locomotive Company Ltd & ors. I(2010) CPJ 169. In this reported judgment it is held interlia that in case of Motor Vehicle as to manufacturing defect the burden of proof of allegations of complainant in respect of defects in vehicle supported by job cards are sufficient to put onus upon manufacturer to disprove manufacturing defect.
5. However in the case on hand as read from Ex.C5 the details on the notice in the job card on various dates and the copies of invoices produced by complainant for the sake of convenience it is now marked at Ex.C12 shows there were no such various defects in the vehicle. The defects found before taking delivery to the complainant was rectified and the scratches of the painting was also repaired before delivery to the complainant. In fact the complainant running the vehicle regularly as indicated from the noting in the job card is suggestive of the job card that the complainant was regularly making use of the vehicle. The claim of complainant that he had to stop which due defect in the vehicle having to disturbance caused to his customers are also not established by the complainant. Hence we are of the opinion that the complainant had failed to establish deficiency in service on the part of opposite parties towards complainant. Hence we answer point No.3 in the negative.
POINTS No. (iii): Wherefore the following order
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 12 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 27th January 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 –Mr. Kishan M
Documents marked on behalf of the Complainant:
Ex.C1: 25.11.2010: Copy of the Tax Invoice issued by 2nd OP
Ex.C2: : Copy of Warranty issued by 1st OP
Ex.C3: 25.11.2010: Copy of the R.C
Ex.C4: 31.01.2006: Copy of Driving Licence
Ex.C5: : Service details provided by OP
Ex.C6: 26.05.2012: Email reply of the 1st OP
Ex.C7: 26.06.2012: O/c regd. notice
Ex.C8: : Postal Acknowledgement
Ex.C9: : Postal Acknowledgement
Ex.C10: : Letter issued by Karnataka Bank
Ex.C11:15.04.2009: Copy of the Diploma certificate
Ex.C12: copies of Retail Invoice sheets
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Rajesh Pawar, Authorized Representative
RW2 Mr. Vinod M Sharlekar, Managing Partner
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 27.01.2017 PRESIDENT
