ADDITIONAL PUNE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT PUNE (BEFORE :- PRESIDENT :- Smt. Pranali Sawant ) MEMBER :- Smt. Sujata Patankar ) ************************************************************************ Complaint No. : APDF/27/2010 Date of filing :- 03/02/2010 Date of decision :- 28/09/2011 Mr. Dattatraya Laxman Phatak, .. ) R/at : Bhangarwadi, Phatak Nivas, .. ) Near Rachana Garden Society, .. ) Lonavala, ‘A” Ward, Tal. Maval, .. ) Dist. : Pune Pin 410401. .. )… COMPLAINANT : versus: 1. M/s. Force Motors Ltd., .. ) Mumbai-Pune Road, .. ) Akurdi, Pune – 411 035. .. ) .. ) 2. M/s. Maya Motors, .. ) S.No.132/2A/3A, Tathawade, .. ) Mumbai – Bangalore Bye Pass, .. ) Near Sai Petrol Pump, .. ) Tal. Mulshi, Dist. : Pune – 411 033. .. )… OPPONENTS For Complainant : Advocate Smt. Devki S. Iyer For Opponent No.2 : Advocate Sanjeev Dudhat ********************************************************************* Per : Hon’ble MEMBER, Smt. Sujata Patankar //JUDGMENT// [1] The facts giving rise to the complaint briefly stated are as follows :- It is the case of the Complainant that the Complainant had purchased Minidor Three Wheeler Tempo manufactured by the Opponent No.1 Company and was earning his livelihood by carrying goods of public within the town of Lonavala. In the year 2008, believing on the statements made by the Opponents No. 1 and 2 about the performance of the new product ‘miniforce’ and purchased one vehicle through Opponent No.2. The Engine No. and Chassis No. of the said pick up van was D-30003628 and T-19003440A08 respectively and its R.T.O. registration No. was MH-14 AZ 2735. According to the Complainant, his whole life and that of his family depended upon the same. It is also the case of the Complainant that the Opponent No.2 introduced the Complainant from M/s. Shriram City Union Finance Ltd. The Complainant took delivery of the said Miniforce pick up van on 18/3/2008 on payment of Rs.2,65,800/- including Rs.12,000/- towards RTO registration, Rs.10,800/- towards taking insurance policy. Out of the said total cost of Rs.2,65,800/-, Rs.40,000/- was adjustment of the old (previous) Bajaj Minidor van. Over and above the same, the Complainant had paid Rs.20,000/- cash to the Opponent No.2 for which he refused to give any receipt but stated that the same was required to be spent in cash only. For the balance amount of consideration, the Complainant had availed of financial credit facility from M/s. Shriram City Union Finance Ltd.. It is further alleged that the mini force pick up van which is manufactured by the Opponent No.1 and the Opponent No.2 who is the dealer of Opponent No.1, it was found that the said vehicle was a failure as within two months of purchase the said van became non functional for one reason or the other. It was noticed that within three months of purchase and use, the engine needed to be opened and the said vehicle was breaking down during running suddenly, there was failure of the starter, there was always starting problem, the base of steering broke. The engine itself was defective and there was manufacturing defect in the said vehicle. The Complainant needed to tow the vehicle to the workshop of the Opponent No.2 every now and that which itself cost Rs.1,500/-. It is also further stated that the Opponent started delaying the repair of the vehicle and kept the same for ten days and therefore due to starvation, it became necessary and unavoidable for the Complainant to get some repairs done from locally available mechanics. It is also the contention of the Complainant that the Opponent No.2 did not hand over the manual alongwith the warranty card at the time of delivery of the vehicle. The Complainant also further stated that the Complainant had to spend more than Rs.55,000/- on repair of the said vehicle. It is also the contention of the Complainant that due to denial of post sale services by the Opponent No.2 , the vehicle was idle since at least last four months. The Complainant became a defaulter in respect of the loan taken by him and therefore on about 07/01/2010 the Financers seized the vehicle and took it in their custody etc.. It is also the contention of the Complainant that the Complainant sent the notice to the Opponents on 29/10/2009 but the Opponent failed and neglected to comply with its terms. According to the Complainant, there is deficiency in service rendered by the Opponent in that the vehicle supplied by them to the Complainant is faulty and its engine is defective and does not serve the purpose. On all these grounds and as specifically stated in the complaint application, the Complainant has prayed to direct the Opponent No.1 and 2 to take delivery of the vehicle from the custody of M/s. Shriram City Union Finance Ltd. by paying the outstanding. As also direct the Opponents to refund the amount of Rs.60,000/- paid by the Complainant to the Opponent No.2 alongwith cost of proceedings etc.. The complaint is supported with the affidavit of the Complainant dtd.02/2/2010. The Complainant has also filed 33 documents alongwith the complaint application, comprising relevant documents, bill of servicing by Kamat Battery works, tax invoice, A.N. Pathan transport bill, receipt vouchers of Shriram City Union Finance Ltd., notices sent by Advocate and various bills etc.. [2] In pursuance of the notice of appearance issued by this Forum, the Opponent No.1 appeared and filed its written statement and has denied the averments in the complaint. It is further submitted that the complaint is not maintainable both in law and facts. According to the Opponent No.1 the vehicle is a commercial vehicle. It is also further stated that the Complainant has never filed any document to show that the alleged vehicle purchased was being used for earning livelihood. As also it is the contention of the Opponent No.1 that the Complainant has not submitted all the papers of the vehicle such as RCTC Book and Insurance copy before the Forum apparently suppress the true fact. Hence according to the Opponent the Complainant does not fall within the definition of the term “consumer” . It is also further stated that the model of vehicles manufactured by the Opponent are approved by the Independent testing Laboratory/Institute which is approved by the Central Government. It is also the contention of the Opponent that the vehicles undergo pre-delivery inspection carried out by the Dealer. The Opponent further stated that the complaint of this Complainant alongwith the complaint of Mr. Vinayak B. Ghadge bearing no.28/2010 it is crystal clear except for name of the Complainant, date of purchase of vehicle, repairing expenses, rest of the content are exactly replica of each other. However the facts are entirely different while the vehicle owned by Mr. Vinayak B Ghadge in CC No. 28/2010 did not report any operational problem, relating to engine starter which were duly attended free of charge under warrant, Mr. Phatak’s vehicle had not reported to the dealership during the warranty period. Also it is to be noted that repair bills attached with the complaint at Sr.No.1 to 18 and the expenses incurred for repair by the Complainant it shows that the vehicle is wholly attended by unauthorized workshop/garage other than the Opponent No.2, the authorized dealer. Mr. Ghadge has samaltaneouly filed the case with false frivolous concocted, speculative and vexatious contentions and allegations with a malafide intention to grab monetary relief. Thus this complaint is liable to be rejected under Section 26 of the C.P. Act, 1986 with cost of Rs.10,000/- The Opponent No.2 is the authorized dealer of this Opponent, the Company. It is true that the vehicle bearing Chassis No. T 19003440 A08 and engine No. D30003628 is manufactured by this Opponent and sold to the Complainant by the Opponent No.2, the dealer. The relationship between this Opponent and the Opponent No.2 is on a Principal to Principal basis i.e. dealings between the Company and the dealer is not that of principal and agent. There is no vicarious liability. It is further submitted that the dealer buys the vehicle manufactured by this Opponent in bulk and the dealer in turn effect retail sale to the customers. The Opponent no.2 is an independent entity to manage the sale and after sales services. Therefore there is no control over any administrative or functional operations and/or affairs of the Opponent No.2 by this Opponent and hence this Opponent cannot be held responsible for any act or omission on the part of the Opponent No.2. The Opponent further submits that the date of purchase mentioned in the complaint and the legal notice that is issued to the dealer, Opponent No.1 on dated 2/6/2009 and 29/10/2009 is different. The Complainant has purchased the same vehicle from the Opponent No.2 on 7/2/2008 of which PDI (Pre delivery Inspection) took place on 23/1/2008 the Certificate is also enclosed. Hence at the out set of the same, it can be revealed that the Complainant has filed this complaint with some ulterior motive and holds no merit and hence liable for rejection and it may kindly be rejected in toto. The Complainant has purchased the same vehicle on 7/2/2008 and the warranty of the vehicle is ends on 6/2/2009. As per Clause 3 of the Terms and Conditions of the warranty policy this policy reads as under “ the warranty period of M4 vehicle is defined as 360 days or 36000 kms whichever occurs earlier from date of sale of the vehicles, subject to the terms and conditions”. The Opponent denied that within two months the said vehicle become non functional and engine was broken during running, starter, gear box and battery problem in the said vehicle. The Complainant is silent with regards to date pertaining to failure of engine, starter gear box and battery etc. It is further submitted by the Opponent that the Complainant be put to strict proof of the alleged facts and problems. It is further asserted that there is no manufacturing defect whatsoever in the said vehicle. It also further submits that the averment made in the complaint by the Complainant about the vehicle necessarily and unavoidably repaired from the local mechanics due to delay in repairs by the Opponent No.2. It is the contention of the Opponent that the Complainant neither notified in writing nor communicated to this Opponent about alleged concerns. As per the terms and conditions of the warranty policy Clause 15 which reads “ the warranty hereby offered shall not be available and we shall not be responsible in any way if the vehicle or any part thereof is repaired or altered otherwise in accordance with our standard repair procedure or when the repair/changes have been done by any person other than our Authorised dealer. Our decision regarding repair, alternation and the person who carried out such repair or alternation shall be final and binding in all respects”. It is also further submitted that the Complainant has not complied the pre-defined maintenance schedule, routine and mandatory checkup, daily and running maintenance within warranty period and also after warranty period. As per the progressive report, the Complainant’s vehicle was running continuously and in roadworthy condition and the Complainant has used the same extensively till the date 10/4/2008 from the date of purchase 7/2/2008 i.e. for two months. It is also the contention of the Opponent that the Complainant has availed 1st free services on the said vehicle during the two months. Therefore the contentions of the vehicle become non functional within two months from the date of purchase is denied in toto. Also the Opponent denying the engine, starting gear box and battery problem in the said vehicle and submitted that the service record of the same shows that the vehicle was repaired during the above service period for some minor problem of starting and general checkup which is repaired by this Opponent through the Opponent No.2 under the warranty. All free service checks and routine maintenance as specified in the owners manual and service coupon book handed over to the Complainant. As per the clause No. 19 of the terms and conditions of the warranty policy. The warranty will available for necessary compliance on the part of the Complainant. The Clause No.19 can be read as under “The above warranty is available subject to your having necessarily complied with the mandatory daily maintenance, running maintenance, routine checkups, free checkup services and mandatory checkup services on the vehicle”. It is also the submission of the Opponent that the Complainant misrepresenting the actual fact to getting the benefit from this Opponent. It is also further stated that certain problems may occur due to several other reasons beyond the control of any manufacturer or dealer; like nature, manner of usage, lack of proper maintenance of the vehicle, driving habits, road conditions, oil and fuel quality, weight of the load put on the vehicle etc.. Hence according to the Opponent, the Opponent is not at all responsible for any amount of compensation or the alleged loss to the Complainant. It is also further stated that the Opponent cannot be held responsible for the latches on the part of the Complainant himself. The Complainant might have filed such a frivolous and speculative complaint to shift his own responsibility to repay loan installments. The Opponent submits that the pleadings of the Complainant and the seizure of the vehicle on 7/1/2010 it is clear from same that the Complainant approached to this Hon’ble Forum to avoid its repayment liability and harass this Opponent under the terms of being a “consumer” to avail monetary benefits which is not comes under the jurisdiction of this Hon’ble Forum. Also this Opponent is not responsible for any act or omission on the part of the Opponent No.2. It is also the contention of the Opponent that the Opponent is unnecessarily dragged into this false complaint as the Complainant has availed maximum benefit of Warranty policy. The Complainant has never made a party to the Finance Company as the vehicle is hypothecated to the Finance Company and the Complainant’s ownership is subject to the repayment of the loan. According to the Opponent, there is neither manufacturing defect in the vehicle nor deficiency in service on the part of the Opponent. It is the submission of the Opponent that the Complainant has never made a party to Finance Company as the vehicle is hypothecated to the Finance Company and the Complainant’s ownership is subject to the repayment of loan. Hence this complaint is liable to be reject against this Opponent due to the non-joinder of the necessary parties to the proceedings. The Opponent submits that this Opponent has not received any legal notice from the Complainant prior to this case otherwise this Opponent tried its best to resolve this issue amicably and the Complainant would not file this complaint before this Hon’ble Forum. Thus this Opponent cannot be held responsible for the latches on the part of the Complainant himself. It is also the contention of the Opponent that as per clause 2 & 4 of the Terms and Conditions of the warranty, warranty is limited for only repairing and replacement of the defective parts in genuine cases and the entire vehicle is never required to be replaced during the warranty period. It has quoted the Clause 2 – “ Extent of Warranty : Our obligation under this warranty will be limited to repairing or replacing, free of charge such parts, which in our opinion are defective, when the vehicle is brought to our dealer’s workshop within warranty period and if the terms and conditions below are satisfied. Our decision as to whether the part is defective and/or the cause of defect is manufacturing deviation/defect shall be final and binding”. Clause 4 – “The extent of warranty is limited to replace only defective parts and not the entire engine/gear-box/vehicle. Thus the Opponent is not liable to replace the vehicle; hence question of its replacement cannot arise. On all these grounds and as specifically stated in the written statement, the Opponent has prayed to dismiss the complaint as being false, speculative and frivolous with exemplary costs etc.. Alongwith the written statement supported with the affidavit, the Opponent No.1 has also filed list of documents, such as, PDI check list, vehicle history etc. [3] The Opponent No.2 also filed written statement supported with the affidavit. It has admitted that the vehicle bearing engine no., chassis no., registration number, was sold to the Complainant. The Complainant had paid Rs.20,000/- in cash to the Opponent No.2 for which no receipt is issued is totally false and not admitted by this Opponent. The contentions of the Complainant that vehicle sold to the Complainant was defective; that within two months of purchase the said van became non functional; that the engine was breaking down that there was starter failure and bursting of battery; breaking up gear box, are all false and frivolous statements made by the Complainant not substantiated with any evidence worth. It is further stated that rest of the contentions of the break-down of the engine and towing the vehicle for repair, is not known to the Opponent. It is pertinent to note that the towing charges bills dtd. 15/5/2009 and 18/7/2009 annexed with the complaint does not show that the said vehicle which is subject matter of the complaint was towed to the Respondent No.2’s workshop. It is also the contention of the Opponent that there is nothing to show that the vehicle allegedly towed was brought to the workshop and Opponent thereafter allegedly delayed the repairs for ten days or more which subsequently alleged forced the Complainant to get the repairs done from local mechanics. It is further denied that Opponent failed to hand over the manual alongwith warranty card at the time of delivery of the vehicle. It is further denied that the Complainant was using the vehicle quite carefully and took all the care of the same as was expected of him. The possibility of misusing the clutch due wrong habits of the Complainant cannot be ruled out since it has been specifically mentioned in user manual that driving the vehicle habitually with clutch paddle half pressed will cause fast wearing of the clutch plates. It is further denied by the Opponent that the vehicle was standing idle. It is the contention of the Opponent that on the contrary since the Complainant did not bring vehicle for repairing to the Opponent No.2, or to any other authorized dealer for reason best known to him, there is no way to find out what really happened to the vehicle and if the alleged defects like failure of battery, starter problem, breaking of gear box etc. really occurred due to any inherent manufacturing defect or for any other reason or that the contentions of the Complainant are false. If the vehicle had been brought to the workshop of the Opponent a problem sheet would been generated and recorded. The Complainant by giving the vehicle to unauthorized workshop for alleged repairs infact disentitles the Complainant to seek any warranty which particularly envisages the Clause that if the vehicle is handled or permitted to be handled and repaired by mechanics unauthorized by the manufacturer of the vehicle i.e. Opponent No.1 then the said vehicle is deemed to be outside the preview of the warranty assured. The possibility that the vehicle is used defectively cannot be ruled out in given facts and circumstances. Changing of clutch plate twice in a year reflects faulty practices on the part of the driver of the vehicle of keeping the clutch half pressed continuously while the vehicle is in motion. Pressing of clutch is required to be pressed only during the changing of gears. Breaking of gear box may also have occurred due to over loading of the vehicle. There is no guarantee of electrical parts including the battery which is not manufactured by the Complainant. Thus unless and until the said vehicle was brought for repairs for the alleged defects to the workshop of the Opponent No.2 nothing can be confirmed in respect of the alleged failure of the said model as well as the fixing of liability and responsibility of the Opponent to repair and/or replace any part of the vehicle some of which are only guaranteed and not all. It is also further stated that the said model is duly certified by ------ which is certifying government authority that vehicle manufacturers is road worthy and does not suffer from any inherent manufacturing defect. Incorrect use of the vehicle, overloading of the vehicle, and handling the vehicle by unauthorized mechanics, cannot be ruled out considering the admission given by the Complainant himself in the complaint. The Opponent further submitted that the Complainant cannot seek any alleged compensation and/or refund of the money (Rs.55,000/-) as well as in prayer clause of the complaint (Rs.60,000/-) which the Complainant states that he has allegedly spent on the alleged repairs of the vehicle. The Opponent in the first place denies the fact that the Complainant has spent any money as claimed over the repairs of the vehicle. Whatever repair and servicing carried out by the Opponent a report the same was generated and duly signed by the Complainant stating that he is fully satisfied with the works carried out. Payment for the same was collected from Complainant after taking his approval. Hence the Complainant is estopped from claiming said charges from the Opponent. Rest of the repairs carried out by other mechanics is neither authentic nor justified. The Complainant is put to strict prove that the said vehicle is tow to the Respondent’s workshop on any particular date and the Respondent inordinately delayed the repairs of the same. The Complainant purchased the vehicle and default made the Complainant does not concern Respondent. It is pertinent to note that without divulging the details of the dates when the Complainant failed to pay the installments (EMI), the Complainant has filed their complaint against the Respondent. admittedly only after the vehicle was towed away by the Financer. The Complainant admittedly purchased the vehicle in the year 2008 and the complaint was filed in 2010 with not a single protest lodged earlier in the context of the vehicle or its servicing with either of the Respondents despite of the fact that the vehicle was purchased on the loan and there was considerable pressure upon the Complainant to earn on the vehicle and pay the installments. The Complainant who had purchased the said vehicle for commercial purpose without demur suffered the defects found in it immediately after two months from its purchase and never even objected to the non supply of manual by the Respondent as is alleged in the complaint in para 5 it is only when the vehicle was towed away by the financers. The Complainant for the first time complains about alleged defects in the vehicle and seeks damages before the consumer forum without substantiating any concrete evidence of loss of business due to alleged non-functioning of the vehicle and due to the alleged fact that the said vehicle when towed to the workshop of the Respondent No.2 the Respondent delayed the repair works causing the Complainant to loss business and ultimately in future forcing him to place the said vehicle in hand of local mechanics. The fact that the said vehicle was tempered by unauthorized dealers and mechanics disentitles the Complainant to seek free servicing and repairs under warranty given for the vehicle. Warranty becomes inapplicable in these circumstances. . There is no way to find out why the vehicle is not working since the possibility of using of bad engine oil brake oil, clutch oil and substandard spare parts by unauthorized inexperienced, unskilled and crude road side mechanics will deteriorate the functioning of the vehicle. This possibility cannot be ruled out in case of the Complainant. The manufacturer or its agent thereafter shall not take any responsibility of defects in vehicles subjected to repairs by such roadside mechanics. The fact that the Complainant failed to give the vehicle for its servicing to Respondent despite of knowledge and prevalent custom that first few services are free of charges, it cannot be ruled out the Complainant himself has indulged in using the vehicle wrongly without caring to se user instructions in the manual provided to the Complainant. The contention raised by the Complainant that the Respondent did not provide him with user manual is any a blatant lie on part of the Complainant made with the intention to justify himself against all the odds committed by him which cannot be justified otherwise. On all these grounds and as stated specifically in the written statement, the Opponent has prayed to dismiss with cost. The Opponent has also filed written statement in support of the affidavit. The Opponent No.2 also filed documents comprising true and verified extract of Register, computerized print out maintained in website of the free service coupon availed by the Complainant. [4] On 13/6/2011, the Opponent filed one document i.e. form of application and grant of no objection certification (Form 28). [5] After filing of the written statements by both the Opponents, the Complainant has also filed rejoinder affidavit. The Complainant as also the Opponents Nos. 1 and 2 have filed their written notes of arguments . Advocate for the Complainant filed purshis to the effect that the Complainant relies upon written submissions on record no oral arguments necessary. We have heard the oral submissions of Advocate on behalf of the Opponent No.2. [6] On perusal of the documents, evidence and pleadings of the parties, the following points arouse for our consideration. Points Answers 1. Whether the Complaint is a “consumer” of the Opponents? … Yes. 2. Whether the Opponents have rendered deficiency in service to the Complainant? … No 2. What order ? … As per final order. REASONS :- [7] It is the case of the Complainant that the vehicle has been purchased for the livelihood as against this, the Opponent has stated that the Complainant has purchased the vehicle having yellow number plate for commercial purpose. Relying upon the provisions of Section 2 (1) (d) (ii) of the Consumer Protection Act “For the purpose 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”, hence we opined that the vehicle is purchased for livelihood and therefore the contention of the Opponent regarding the vehicle purchased for commercial purpose is not acceptable. Moreover, there is no dispute in respect of purchase of the vehicle by the Complainant from the Opponents, which fact is also not denied by the Opponents in their written statements. Therefore, the Complainant is a “consumer” under Section 2 (1) (d) (ii) of the Consumer Protection Act of the Opponents and hence we answered the point No. (1) in the affirmative. [8] The Complainant came with the case that the disputed vehicle purchased from the Opponents is having manufacturing defects. As contended by the Complainant himself in para (8) of the complaint application, the Complainant became a defaulter in respect of loan taken by him and therefore on about 07/01/2010 the said Financer seized the vehicle and took it in their custody etc. The Complainant took the delivery of the said mini force pick up van on 18/3/2008, thereafter the Complainant sent notice to the Opponent on 02/06/2009 and on 29/10/2009 through Advocate and filed this complaint against the Opponents on 3/2/2010 before the Hon’ble Forum. The Complainant in the complaint application contended that it was noticed that within two months of purchase, the said van became non functional for one reason or the other. It was noticed that the engine was breaking down during running suddenly, starter failure bursting of battery, breaking of gear box etc. . The engine itself was defective and there was manufacturing defect in the said vehicle. It is also the contention of the Complainant that the Complainant needed to tow the vehicle to the workshop of the Opponent No.2. The Complainant specifically has not mentioned about the defects of vehicle noticed by him on specific date at first time. It is the duty bound to the Complainant whenever he noticed the defect of the vehicle at first time, he should brought this fact immediately to the Opponent. It means that there is no all of sudden correspondence sent by the Complainant to the Opponent for observing defects in the disputed vehicle. There is no any evidence putforth by the Complainant for communicating the Opponents regarding the defects in the vehicle from time to time. [9] The Opponent No. 1 has stated in their written statement that the Complainant has purchased the said vehicle on 7/2/2008 and the warranty of the vehicle is ends on 6/2/2009. The Opponent is relying on Clause 3 of the Terms and Conditions of the warranty policy “ the warranty period of M4 vehicle is defined as 360 days or 36000 kms whichever occurs earlier from date of sale of the vehicles, subject to the terms and conditions”. As against this, the contentions of the Complainant about the vehicle necessarily and unavoidably repaired from local mechanics due to delay in repairs of the Opponent No.2. As per the terms and conditions Clause No. 15 of the terms and conditions of the warranty policy mentioned in the written statement which is also not denied by the Complainant revealed “ the warranty hereby offered shall not be available and we shall not be responsible in any way if the vehicle or any part thereof is repaired or altered otherwise in accordance with our standard repair procedure or when the repair/changes have been done by any person other than our Authorised dealer. Our decision regarding repair, alteration and the person who carried out such repair or alteration shall be final and binding in all respects”. It means that the Complainant got repaired his vehicle by third person or the engine of the disputed vehicle is opened by the third person, which fact is admitted by the Complainant in the complaint application itself and filed the various bills for repairs of disputed vehicle . Therefore it proves that the Complainant has failed to perform his part as per the terms and conditions of the warranty. It is also observed on perusal of the entire record and proceedings that the Complainant had not taken facility of all free servicing as per the schedule for whatever reason. It is established practice that when the new vehicle is purchased then the vehicle is sent after running the vehicle on the road for the servicing as per schedule and norms prescribed by the manufacturer. However in the present case it is the fact that the Complainant himself failed to do so. As far as the manufacturing defect is concerned the Complainant did not produce any relevant document to show that the Complainant’s vehicle is having the manufacturing defect during the warranty period. The Opponents stated in their written statement clause No. 19 of the terms and conditions of the warranty. “The above warranty is available subject to your having necessarily complied with the mandatory daily maintenance, running maintenance, routine checkups, free checkup services and mandatory checkup services on the vehicle”. It is nowhere any document which shows that the Complainant was regular in running maintenance and routine check up services and mandatory check up services of the vehicle. On perusal of the entire record it appears that there is no expert opinion brought on the record through any documentary evidence by the Complainant to prove the defects in the vehicle. Mere pleadings without supporting relevant concrete evidence cannot be considerable in the eyes of law. [10] In the present case, the Complainant came with the case of manufacturing defect in the vehicle. As against this the Opponent has stated in their written statement that the Complainant’s disputed vehicle have not manufacturing defect during the warranty period as per the terms and conditions and also the Opponents are not responsible whenever the Complainant opened the engine of the vehicle at another means without any authorized dealer. At this juncture, the Complainant himself admitted the fact that the disputed vehicle sent to the third person for repairing work and therefore the Opponents are not liable for disputed vehicle’s defects. It is not evident that the Complainant’s vehicle having manufacturing defect before the opening of the engine of the disputed vehicle. [11] Moreover, after receiving the vehicle the Complainant used the vehicle till its seizure by finance company. There were no any documentary evidence or letter sending to the Opponent about manufacturing defect by the Complainant on the record till 2/06/2009. There is no any supporting expert opinion i.e. affidavit of automobile engineer or expert opinion on the record by the Complainant to substantiate his contentions about the manufacturing defects. As also, the Complainant did not file any application for appointing ARAI or for Court Commissioner to examine the vehicle and to bring on the record the defects in the vehicle in support of his contentions. It is also crystal clear that in the present case the Complainant has failed to furnish expert evidence as per Section 13 (1) ( c ) of Consumer Protection Act, 1986. Therefore, it appears that in the absence of any cogent evidence, the Complainant has not proved his case of deficiency in service on the part of the Opponents. Hence we opined that the Opponents are not responsible for deficiency in service. With the aforesaid discussions, we answer the point No.2 in the negative. [12] On 13/6/2011, the Opponent filed one document i.e. form of application (Form 28) with the application for production of document, this application is allowed. After perusal of this document, it reveals that Dattatraya Phatak’s disputed vehicle was transferred in the name of Mr. Dilip Narsing Gatte, Latur and this Complainant given signature on the form. But this fact brought before the Forum by the Opponent and not by the Complainant. It means that the Complainant suppressed the present status of the disputed vehicle even after having the knowledge about it. In these circumstances, the complaint of the Complainant is liable to be dismissed. Today i.e. on 28/9/2011, the Complainant has filed application in the form of further submission on the record of the proceedings to the effect that the vehicle ceized by the Finance Company and disposed off the same and if they had done so, the Complainant is not responsible for the same. [13] In the present case the Opponent raised the contention of non-joinder of necessary party i.e. M/s. Shriram City Union Finance Ltd. It is pertinent to note that the Complainant raised the loan from M/s. Shriram City Union Finance Ltd. for purchasing the disputed vehicle. As a defaulter, the vehicle of the Complainant seized by Finance Company. Thereafter. the Complainant has filed the present complaint against the Opponents regarding defects in the vehicle. In our opinion it is essential to make M/s. Shriram City Union Finance Ltd. as a necessary party in the present case. But the complaint itself is dismissed on merits in absence of expert opinion. [14} Relying on the judgment delivered by the National Commission in the matter 2011 CTJ 268 (CP) (NCDRC) in the matter of Suresh Chand Jain V/s. M.R.F. Ltd. And Another defect tyres Consumer Protection Act,1986 Section 2 (1) (f) Complaints accepted by the District Forum – Compensation awarded- State Commission set aside the Forum’s orders on appeals relying on the report of the Technical Service Engineer of Respondent No. 1 the manufacturing company – Nothing wrong in accepting a report of an employee provided it is examined with care and caution – So done by it – Revision Petition – Admittedly one tyre used for four months and the other twelve months before complaining about them – Had there been any defect in them, it would have been noticed by the Complainant immediately after the purchase – On us to prove the defect undoubtedly on the Complainant – Not proved – No expert evidence brought on record to pinpoint the defect – Consequently the state Commission’s order upheld – Revision petitions dismissed. In addition to that, I (2007) CPJ 204 (NC) in the matter of Ajitha Chit Funds (P) Ltd. V/s. Tata Engineering And Locomotive Co. Ltd. & Ors.Consumer Protection Act, 1986 – Section 2 (1) (g) – Motor Vehicles –Manufacturing defects alleged – Car giving excessive noise – Car had diesel engine which gives more noise compared to petrol engine – Absence of evidence of expert/automobile engineer to state that car was having manufacturing defects – Further car being purchased for commercial purpose, complainant not consumer – Complaint rightly dismissed. As also, Kerala State Consumer Disputes Redressal Commission, Vazhuthacaud Thiruvananthapuram in APPEAL NO.624/09 JUDGMENT DATED 29.3.2010 in the matter of Tata Motors Ltd. Vs. Dr.A.P.Philip, S/0 Philipose, “It is pointed out the counsel for the appellant that there is no expert evidence in the matter as contemplated under Section 13 (1) ( c) of the C.P. Act. Hence in the absence of expert evidence as to the manufacturing defects there cannot be a total replacement. Further, for the defects of a particular part the entire vehicle cannot be replaced”. As per the above discussions and relying on the judgments of the Apex Authorities, we proceed to pass the following order :- // ORDER // (1) The complaint stands dismissed. (2) No order as to costs. (3) Certified copies of this order be furnished to the Complainant and the Opponents Nos. 1 & 2 free of costs. (Smt. Sujata Patankar) (Smt. Pranali Sawant) MEMEBR PRESIDE NT ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PUNE. Place : Pune Date : 28/09/2011
| | [ Smt. Sujata Patankar] MEMBER[ Smt. Pranali Sawant] PRESIDENT | | 
