BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 5th April 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.256/2012
(Admitted on 13.08.2012)
Sri. Umashanker N.H,
S/o Hala Naik, Aged about 40 years,
R/at No. 28.2, Sridevi Kripa,
3rd cross, Anegundi, Bejai,
Mangalore 575004.
….. COMPLAINANT
(Advocate for the Complainant: Sri NBPR)
VERSUS
- M/s Auto Matrix,
Authorised Dealers of
Tata Motors and Fiat, Bejai,
Mangalore 575004
Represeneted by its in charge/
Authorised signatory.
- M/s Fait India Automobiles Limited,
B 19, Ranjanhaon MIDC,
Industrial Area,
Ranjangaon 412210
Shirur Taluk, Pune District, India.
Represented by its in charge,
Authorised Signatory.
….............OPPOSITE PARTIES
(Advocate for the Opposite Party No.1. Sri DS)
(Opposite Party No.2: Ex parte)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to replace the vehicle with a new one or to take back the vehicle and to refund the price with commercial rate of interest i.e. interest at the rate of 25% per annum, to pay a sum of Rs.5,00,000/ towards the mental agony tension, loss hardship and harassment caused to the complainant, and further reliefs.
2. In support of the above complainant Sri. Umashanker N.H, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C22 as detailed in the annexure here below. On behalf of the opposite parties Mr. Rajaram, (RW1) Assistant General Manager, also filed affidavit evidence and answered the interrogatories served on him. Mr. Yogish, (RW2) Diagnostic Expert and trainer Auto Matrix, is examined in person. Mr. Santhosh Kumar, (RW3) Diagnostic Expert, examined by way of personal examination and cross examination.
The brief facts of the case are as under:
We perused the complaint and the version of the parties. The dispute is the complainant purchased a car FIAT GRANDE PUNTO (hereinafter called as the car) from the opposite parties and within few days the car started giving problems and the Opposite parties have sold a defective car to him and hence deficiency in service alleged. The complainant alleged the he had purchased a car from the opposite parties and the car was delivered on 03.10.2011 with a warranty of 24 months and an extended warranty for another 24 months. Immediately he observed the defect in the car and continuously facing problem with the car. The Opposite party contention is the car is defect free and the usage of the complainant is rough and badly maintained. The terrain the car is being used is also rough and hence there is problem with the car but it is not due to manufacturing defect. These are being the facts of dispute in resolving it we consider the following.
POINTS FOR ADJUDICATION
We have closely examined the evidence adduced and the documents produced. The admitted facts are the purchase of the car, the bringing of the car to the service station many number of times for repair and the repair done with in warranty period. It is denied by the opposite parties that the defect is of manufacturing defect. The complainant denies that the defect is because of the rough handling and because of poor road conditions. Admissions and the denials reconciled and considered the following points for adjudication.
- Whether the complainant is a consumer under the consumer protection Act 1986?
- Whether the complainant proved manufacturing defect and the deficiency in service from the part of the opposite parties.
- Whether the complainant is entitled for the relief prayed for?
- What order?
We considered the evidence of record and the documents produced. The notes of arguments considered and we heard the counsels and answered the above points as under.
- In the affirmative.
- In the negative.
- In the negative.
- As per delivered order.
REASON
POINT NO 1: The complainant had produced job cards and the tax invoices for service done and the copy of the RC of the car which shows the complainant had given his car for servicing with the Opposite parties. Even though the complainant not produced the purchase receipt/tax invoice for the purchase made, the opposite party has not disputed the car being purchased by the complainant. Hence we answered the point no 1 in the affirmative.
POINT NO 2 & 3: The complainant specific case is the car purchased by him is having manufacturing defect and he is entitled for replacement or refund as the defect found during the warranty period of 24 months and an additional warranty of another 24 months. It will be the complainant case to prove the manufacturing defect as well as the replacement/refund because it is during warranty period.
2. As per complainant pleadings the complainant bases his contention on the basis of the defect reported and service done during the warranty period. The complainant narrated that many number of times the car given for servicing for different type of problems. We find among which there are general maintenance of consumables like oil changing wheel alignment, break fluids etc, and other maintenance with regard to usage conditions like wheel balancing, break liner, arm problems, wobbling etc,.
The major problems in our view faced by the complainant are, more wobbling at higher speed, problem related to break disc, (however the complainant elaborated the repair work in detail as to remove/replace and install break Disc, remove/replace front break, thereafter break disc two in numbers were replaced by the opposite party no 1 in page 2 last para of the complaint, power steering oil leak, swinging arm LH. It is admitted fact that all these complaint are attended by the Opposite parties whenever complained. It is not the case of the complainant that the opposite party has not repaired or cured the defect. There is no service deficiency alleged.
Some of the problem faced by the complainant in his pleading is note worth in deciding this dispute.
The alleged defects are pointed out here below.
Rear tool tag broken, rear mud liner side paint scratched, and surface rusted, Bonnet bush broken, rear lever scratched, wind shield cover gap, wiper sprayer not functioning, vehicle left side pulling, rear seat noise, vehicle wobbling, rear RH door setting, wind shield trim, Front right door glass noise, glove cover rattling noise, Emotion LOGO letter I to be fixed properly, Wiper noise at high speed, rear LH door hard, Tail gate rattling and gap adjust, top roof breeding to be fixed properly , front wiper fiber cover to be fixed properly, Nitrogen filling, wheel alignment, wheel balancing etc, and major of them repeated in coming service job card also. In our opinion the complainant has tried to show all trivial problems of which most of them due to running in the bad terrain. It is admitted by the complainant that he is using the car in the regions of Dhakshina Kannada, Udupi, shimoga, and chikmagalur. These are the area where the road condition presumed to be of bad maintenance due to monsoon effect. On close examination of the complained defect, it is noticed that majority of them is the result of rough drive and the road condition where the car is used. The Rw 2 and the Rw 3 who were repaired the car and expert in the opposite party service station are examined and deposed in personal examination that, the complaint faced by the car is due to drive in rough road. The complainant counsel cross examined the Rw 3 only but could not elicit that the defect arose is due to manufacturing defect. Self We also noticed that the complainant had produced the certified copy of the extended warranty of the FIAT cars but not produced the terms of the warranty. The complainant can only prove that the replacement/refund of the whole car if there is provision in the terms of the warranty. The warranty as itself stands for replacement of defective parts and not the whole car it if at all there is any manufacturing defect. It is true that if major defect found many number of times, the higher authorities held the vehicle shall be considered as having manufacturing defect. But in the instant case there is no such major defects repeated numerous of times. The opposite party provided an authority of our Honorable National commission 2009 CJ 1073. It is held that the complainant should produce evidence to show that the defect pointed out by him was a manufacturing. Again in II (2013) CPJ 72 (NC) it was observed that the complainant has not able to produce any evidence including that of an expert to indicate that there was manufacturing defect and held the manufacturing defect is not proved.
With all the above observations and discussions we hold the complainant not proved the manufacturing defect and also the deficiency in service against the Opposite parties. Hence we answered the point no 2 in the negative and the point no 3 in the negative as well.
POINT NO 4: In the light of above discussion and adjudication of the above points we deliver the following
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 7 directly typed by Member, revised and pronounced in the open court on this the 5th April 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (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 Sri. Umashanker N.H,
Documents marked on behalf of the Complainant:
Ex.C1: The Notarised copy of the certificate of Registration issued by the State of Karnataka.
Ex.C2: The job slip.
Ex.C3: The job slip.
Ex.C4: The wheel alignment receipt.
Ex.C5: The job slip
Ex.C6: Tax invoice
Ex.C7: Receipt
Ex.C8: The job slip
Ex.C9: The job slip
Ex.C10: Tax invoice
Ex.C11: Receipt
Ex.C12: The tax invoice
Ex.C13: The tax invoice
Ex.C14: The job slip
Ex.C15: Tax invoice
Ex.C16: The job slip
Ex.C17: The Invoice
Ex.C18: The notarised copy of the extended warranty certificate for the car belonging to the complainant.
Ex.C19: The office copy of the legal notice
Ex.20: The acknowledgment
Ex.C21: The acknowledgment
Ex.C22: Service certificate issued by Videocon Digital DTH service.
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Rajaram, (RW1) Assistant General Manager.
RW2 Mr. Yogish, (RW2) Diagnostic Expert and trainer Auto Matrix.
RW3 Mr. Santhosh Kumar, Diagnostic Expert.
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 5.4.2017 MEMBER
