ADDITIONAL PUNE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT PUNE (BEFORE :- PRESIDENT :- Smt. Pranali Sawant ) MEMBER :- Smt. Sujata Patankar ) ************************************************************************ Complaint No. : APDF/28/2010 Date of filing :- 03/02/2010 Date of decision :- 28/09/2011 Vinayak Baburao Ghadge, .. ) Bhairvnath Nagar, Kusgaon, Aunda Road, .. ) Near Ganpati Mandir, .. ) Lonavala, 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-30003677 and T-19003730A08 respectively and its R.T.O. registration No. was MH-14 AZ 3522. 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.35,000/- 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 15/11/2009 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 19/12/2009 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 as stated in para No.(4) alongwith cost etc.. The complaint is supported with the affidavit of the Complainant dtd.19/6/2009. The Complainant has also filed (1) to (5) documents alongwith the complaint application, comprising relevant documents. [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. Dattatraya L. Phatak bearing no.27/2010 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 fact are entirely different while the vehicle owned by Mr. Dattatraya L. Phatak in CC No. 27/2010 did not report any operational problem, Mr. Ghadge’s vehicle had certain minor concerns relating to wiper and starter motor which were duly attended free of charge under warranty. According to the Opponent the Complainant filed this case with false, frivolous contentions. The Opponent admits that the Opponent No.2 is the authorized dealer of the Opponent No.1. It is also admitted by the Opponent that the vehicle bearing Chassis No. T 19003730 A08 and engine No. D30003677 is manufactured by the Opponent and sold to the Complainant by the Opponent No.2. 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. It is also further submitted that the dealer, 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 there is no relationship of agency-principal, and hence no vicarious liability. As such the Opponent is neither aware of the subsequent transaction nor responsible for any deficiency in service on the part of the dealers. It is also submitted that the Complainant has purchased the same vehicle on 17/2/2008 and the warranty of the vehicle is ends on 16/2/2009 . 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”. The Opponent denied that within two months the said vehicle become non functional and within three months engine needed to be opened, starter problem in the said vehicle. It is also pointed out that the Complainant is silent with regards to date pertaining to failure of engine, starter steering 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 except the legal notice. The Opponent also quotes the Clause No. 15 of the terms and conditions of the warranty policy “ 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. Thus this Opponent cannot be held responsible for the latches on the part of the Complainant himself. It is also further submitted that the said vehicle was running continuously and in roadworthy condition and the Complainant has used the same extensively till the date 14/6/2008 from the date of purchase 17/2/2008 i.e. four months. It is also the contention of the Opponent that the Complainant has availed 1st and 2nd free services on the said vehicle during the four month. Therefore the contentions of the vehicle become non functional within two/three months from the date of purchase is denied in toto. Also the Opponent denying the engine problem, starting problem in the 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 on 24/9/2008 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. The Opponent also states that it has relied upon the 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 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 contended that the Opponent is neither aware of the subsequent transaction nor responsible for any deficiency in service on the part of the Opponent No.1, dealer, as expressly stipulated in dealer’s appointment letter. Thus there is no privity of contract between the Complainant and the Opponent. It is also further stated that the Opponent cannot be held responsible for the latches on the part of the Complainant himself. The Opponent also further contended that the Opponent cannot be held 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. It is also further contended that it is prime duly of the Complainant to maintain the vehicle as per the warranty policy as the Complainant failed in availing the all the free service check up and services. It is also the contention of the Opponent that the Opponent complied its warranty obligations and repaired the vehicle through the Opponent No.2 whenever the Complainant approached to the Opponent No.2. 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. It is also stated that the Complainant has failed to repay the loan amount which showed in the seizure letter dated 15/11/2009 that the Complainant has voluntarily handed over the vehicle to the Finance Company. Hence this complaint is liable to be rejected against the Opponent due to the non-joinder of the necessary parties to the proceedings. It is alleged that the Complainant with some ulterior motive and avoiding the responsibility of own misrepresenting the actual facts. Therefore it is the contention of the Opponent to direct the Complainant to pay to this Opponent cost of Rs.10,000/-. 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, service coupons.. [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 contentions of the Complainant that vehicle sold to the Complainant was defective; that within two to three 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 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.35,000/-) as well as in prayer clause of the complaint (Rs.60,000/-)which the Complainant states that he has allegedly 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 contents of para 8 that the Opponent No.2 denied that the post sale services is totally false. The Opponent further stated that the Complainant is put to strict proof to prove that the said vehicle was towed to the Opponent’s workshop on any particular date and the Opponent inordinately delayed the repairs of the same when it was towed to their workshop. The Complainant had raised no complaints whatsoever, in context of the alleged defects and alleged refusal of the Opponent to service the vehicle the Complainant has filed the complaint against the Opponent admittedly only after the vehicle was towed away by the financers without substantiating any concrete evidence of loss of business due to alleged non-alleged fact that the said vehicle when towed to the workshop of the Opponent No.2 the Opponent 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. It is the contention of the Opponent that the Complainant purchased the vehicle for commercial purpose. 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. On all these grounds and as stated specifically in the written statement, the Opponent has prayed to dismiss the complaint 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] 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. [5] 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 :- [6] 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. [7] 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 15/11/2009, the said Financer seized the vehicle and took it in their custody etc. Thereafter the Complainant sent notice to the Opponents on 19/12/2009 and filed this complaint against the Opponents on 3/2/2010 before this Hon’ble Forum. On perusal of the documents filed by the Complainant alongwith the complaint application, there is no any documentary evidence on the record in the support of contentions of the Complainant to spend more than Rs.35,000/- on repair of the said vehicle. In this context it is the duty of the Complainant to putforth his case by authentic documentary evidence. The another contention of the Complainant that the vehicle has been seized by the Finance Company but on the seizure letter at exh. 4/15 it shows that the Complainant himself handed over the possession of the said vehicle to the Finance Company. It means that the Complainant took the delivery of the said mini force pick up van on 18/3/2008 and sent the notice to the Opponent on 19/12/2009 at first time. The Complainant in the complaint application contended that he 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. It is also the contention of the Complainant that the Complainant needed to tow the vehicle to the workshop of the Opponent No.2. In all these respects, there is no any single document putforth by the Complainant to support his contentions for repairing charges and for towing charges. The Complainant specifically has not mentioned about the defects in vehicle noticed by him on specific date at first time. It is the duty bound to the Complainant whenever he noticed the defect in the vehicle at first time, he should brought this fact immediately to the Opponent. But the documentary evidence filed by the Complainant show that the Complainant took the delivery of the vehicle on 18/3/2008 and sent the notice to the Opponent on 19/12/2009 at first time after the finance company seized the disputed vehicle on 15/11/2009 being a defaulter and as per the seizure letter. It shows that the Complainant himself hand over the disputed vehicle to the Finance Company as a defaulter. It means that there is no any letter, notice 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. [8] The Opponent No. 1 has stated in their written statement that the Complainant has purchased the said vehicle on 17/2/2008 and the warranty of the vehicle is ends on 16/2/2009. 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. 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. Moreover it is evident 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. [9] 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 was 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. [10] 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 19/12/2009. 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. [11] On the date of arguments, the Complainant was directed to file purshis on the record about the present status of the vehicle however the Complainant did not brought on the record about the custody of the vehicle. 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. 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 Complainant himself handed over the custody of the vehicle to M/s. Shriram City Union Finance Ltd. as per seizure letter dtd. 15/11/2009 filed by the Complainant himself on exh. 4/15. 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. 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 | | 
