(Delivered on 20/11/2018)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This is a complaint filed under section 17 of the Consumer Protection Act, 1986.

 2.         The case of the complainant  as set out in the complaint  in brief is as under:

a.         The opposite party (for short O.P.) No. 1   is  the dealer of Truck manufactured by  Mahindra and Mahindra Company. The O.P.No. 2 is the said manufacturing company. The O.P.No. 3 is Financer Company. The complainant purchased  one truck bearing  registration  No. MH-31-25-FT-6100-MM on 06/04/2012 for consideration of Rs. 19,12,000/- from the O.P.No. 1 as manufactured by the O.P.No. 2.  The complainant obtained loan from the O.P.No. 3 for purchasing the said truck, which was to be repaid with interest as per agreement.

 b.         However,  the said truck was required to be taken  to service centre  for 20 to 25 times  for repairing,  starting  from  lapse of two months  , after  purchase of the  same.  The said truck was required to be stationed at the service centre many times for three to four days for the purpose of repairing.

 c.         Moreover,  the O.P.No. 1 had  assured that  the said truck will  give average of consumption  of diesel at the rate of 4 Km. per litter. However,  it gave  the average of 2.4 Km. per litter only.  Moreover,  its battery  was required to be replaced on multiple occasions. So also during the period of 18 months , its tyres  were required  to be replaced  20 times. Therefore, the  complainant suffered  loss. There is  manufacturing  defect in the said truck. The O.Ps. did not pay any heed to the requests of the complainant  to remove the manufacturing  defects.

 d.         Therefore,  the complainant issued  legal notice dated 10/02/2014 to the O.P.No. 1 to 3.  They  did not  give  the reply to the said notice and failed to redress  the aforesaid grievance  of the complainant.

 e.         Therefore,  the complainant  had initially  filed consumer complaint  No. 170/2014 before the  District Consumer Forum, Nagpur. The O.P. Nos. 1 to 3 had filed reply to the said complaint. But  said  District Consumer Forum  returned  the  said complaint  vide order dated 21/03/2017 for filing  before this Commission  on the  ground that  the subject matter of the  said complaint  exceeded value of 20,00,000/- and thus it  is beyond  its  pecuniary jurisdiction.  Hence,  the present  complaint is filed before this  Commission seeking  the following  reliefs .

 i.          The O.P. Nos. 1&2 may be directed to replace the truck by new truck or to pay the price of  the said truck along with expenses  incurred for repairing,  to the  complainant or  alternatively to pay  the monthly installements  of loan  to the O.P.No. 3.

 ii.          Direct the O.P. Nos. 1,2&3 to pay compensation at the rate of Rs. 50,000/-  per month towards  losses due to  manufacturing  defect in the truck, from the year  2012  to till the realization  of the  aforesaid  amount by the  complainant.

 iii.         Direct the  O.P. Nos. 1 to 3 to pay to the  complainant  further  compensation  of Rs. 50,000/- for  physical  and  mental  harassment.

iv.        Direct the O.P. Nos. 1 to 3 to pay to the  complainant  litigation cost of Rs. 20,000/- and  legal notice charges  of Rs. 2500/-.

 v.         To direct the O.P. No. 3 to collect  the  outstanding  loan amount  from the O.P. Nos. 1 & 2 and to return the cheques of the complainant  and not to demand  any amount towards loan  installments  nor charge any interest over the same.

3.         The complainant  along with  complaint  filed copies  of the order passed by the District Consumer Forum, Nagpur 21/03/2018, list of documents filed  before the Forum below, copy of complaint  filed before  the Forum, list of documents  along with  documents filed before  the Forum, reply filed  by the O.P.Nos. 1,2&3 separately to the  complaint  before the Forum and written notes of arguments  filed by the  O.P. No. 3 before the Forum.

 4.         As per application  of the complainant, the  original  record and proceedings of the complaint  No. 170/2014 are also called from the District Consumer Forum, Nagpur  and placed before  us  and  same is considered  for  deciding  the present  complaint.

 5.         The notice of this Commission  was issued  to the O.P. Nos. 1 to 3.  Advocate Mr. Vora appeared  for the  O.P. No. 1. Advocate Mr. Azamat Shah appeared for the   O.P.No. 3. The O.P.No. 2 failed to appear despite service of notice of this complaint. Therefore,  this complaint  is proceeded exparte against the O.P.No. 2. The reply filed to the complaint  before  the District Consumer Forum by the  O.P. Nos. 1 to 3 is treated  as  reply since this  complaint is filed after  return of previous complaint  by the Forum below for  filling  before this  Commission to the  present  complaint.  We have perused  the record and proceedings of the present  complaint and  record  and proceedings  of complaint  No. 170/2014 which  was filed before  the District Consumer Forum, Nagpur. We have  also considered  the submissions  made by the aforesaid  advocates  before us.

 6.         The learned advocate of the complainant has drawn our attention to the copies of  job cards produced on record  regarding  the repairing  of the truck at the workshop of the  O.P. No. 1 and submitted  that the said job cards prove  that  the  truck in question was taken  to the  work shop for 20 to 25 times for repairing, which  is sufficient  to come to the conclusion  that  there is manufacturing  defect in the vehicle, which is not removed by the O.P. Nos. 1&2.  He therefore, requested that the reliefs sought  for in complaint may be granted.

 7.         On the other hand, the learned advocate of the O.P.No. 1 submitted that  the job cards do not prove any such  manufacturing  defect in the vehicle. According to him the  vehicle was  used for  commercial  purpose  and it was run for long  distances and it was taken  to  service centre for servicing &  repairing  and accordingly  the vehicle  was  got repaired to  the satisfaction of  complainant every time.  Hence,  he submitted that  as the  manufacturing  defect  in the vehicle is not  proved, the complaint  may be dismissed.

 8.         The advocate of the  O.P.No. 3 appeared to day and submitted that  the reply  filed by the O.P. No. 3 to the complaint  before the  Forum  and  may be considered  as his oral arguments.

 9.         We find that the O.P.  Nos. 1, 2 & 3 by filing  reply to the  complainant, resisted the same.   According to the reply of the O.P.No. 1, though the vehicle was brought to the work shop of the O.P. No. 1, it was duly repaired  of which details  are given in the said reply. It is denied  by the O.P.No. 1 that  tyres of the said vehicle  were required to be  replaced  20 times in 18 months. It is also  denied by the  O.P.No. 1 that  there is manufacturing  defects in the vehicle.  Thus, it is the case  of the O.P.No. 1 that  the vehicle was   delivered to the complainant  after his full  satisfaction  about the repairing.   Hence, the complaint  is liable to be  dismissed.

 10.       The O.P.No. 2 also resisted  the complaint  by filing  reply and  denying the manufacturing  defect in the vehicle. It is also  denied  that  it was assured /promised  that  the vehicle will  give  consumption average  of  4 Km. per litter. It is the case  of the O.P.No. 2 in brief that  the fuel average /mileage  of the vehicle  depends on the driver habits  and road  circumstances.  It also submitted that  the vehicle  was duly repaired  as it was brought  to the service centre  and there is no question  of manufacturing   defect in the  vehicle.  Hence, it was prayed  by the O.P.No. 2 that  the complaint  may be dismissed.

 11.       The O.P.No. 3 by filing  reply resisted the complaint mainly on the ground  that  as it is a financer of the vehicle & it is not a  necessary  party to the complaint.  It submitted that   it granted loan  of Rs. 19,50,000/- to the complainant  for purchasing   said truck. But the said loan was not repaid  as per installments granted  and therefore, it is entitled  to recover from him  said  amount  as per account statement . It thus requested  that  the complaint may be dismissed.

 12.       At the outset, it is pertinent  to note that  the  complainant in the complaint  has not specified  as to what are  actually manufacturing  defects  in the vehicle.  Moreover, it is also not stated  in the complaint  as to what  type of repairing  was required  and what  was the actual  problems  in  running of the vehicle.  In our view  it was necessary  for the complainant  to give  particulars of defects  in the vehicle  and problems faced by him while  driving  the vehicle  due to those defects. Therefore, in the absence of  any specific pleading  about the same, it is very difficult  to ascertain  as to what  is actual manufacturing defect in the vehicle /truck.

 13.       Copies of the job cards filed on record no doubt to show that the vehicle in question was taken from time to time for servicing and repairing to the service centre. However, the said job cards are not clear  to prove that what were major defects in the vehicle for which repairing was required.  It also appears  form the job cards  that  vehicle was  run for  a very long  distance  & also the vehicle  was duly   attended  and repaired from time to time.  We therefore find that  in the absence  of expert opinion about  the manufacturing  defect in the vehicle it cannot be  proved  that  there is any such manufacturing  defect in the said vehicle.

 14.       The learned advocate of the complainant has relied on the decisions in the following  cases.

 i.          Hind Motor (I) Ltd. & another Vs. Lakhbir Singh & another, reported in   I(2014) CPJ 120 (NC).  In that case  the  Hon’ble National Commission observed that  manufacturing  date of  vehicle is mentioned as July, 2005, whereas  vehicle  was sold  and delivered on 02/01/2006.  Selling  old vehicle  without  disclosing date of manufacture  amounts to unfair trade practice. There are  inherent defects in vehicle  as major repairs were required just after short  span of eight months from the date of sale  of vehicle.   Hence, the impugned order  was upheld.

 ii.          SAS Motors Ltd. Vs. Anant Haridas Choudhari, reported in  III (2013) CPJ 520 (NC).  In that case the Hon’ble National Commission observed that  the vehicle was  purchased  on 05/02/2005 and it was  taken for  repairs within 12 days  i.e. 17/02/2005 and that vehicle  remained in showroom for 38 days  for repairs & that defects listed  in complaint  are corroborated by job cards placed on record.  Facts  speak for themselves. No expert  advice was required. Thus, manufacturing  defect is  proved.

 iii.         Krishanpal Singh Vs. Tata Motors Limited & others, reported in II (2014) CPJ 731 (NC).  In that case the Hon’ble National Commission observed that  the car is lying with dealer since year 2008. Needful was not done. Expert was  not appointed. Car can neither  be replaced nor its amount can be refunded. Repair of  vehicle  was therefore  directed. It was also directed that  the  General Manager of Tata Motors should certify that  vehicle is  road worthy and  it will not  endanger life of complainant or his family members.  Warranty period was also  extended by 12 months.  As the complainant visited service  station for 26 times,  he shall   get compensation of Rs. 5000/- per visit.

 15.       However, we find that  the aforesaid  decisions  are not applicable  to the facts and circumstances  of the present  case since  in the present case  no such  major defects were   occurred much less within  short  span of  purchase of the truck & the said truck was also not required to be retained at service  centre for long  time for  repairing. Moreover, every  time it was  duly got repaired. The facts and circumstances  of  present  case are  thus totally different  from those of  said cases.  

 16.       Moreover,  no document is filed  by complainant  to prove  that  tyres  of the  truck  were of  sub standard quality  & the said  truck  did not give oil consumption  average as agreed.

 17.       Thus, we hold that  the complainant has  failed to prove that  there is manufacturing  defect in the  vehicle  in  question.  Therefore,  the O.P. Nos. 1&2 cannot be  held liable  to pay any compensation  to the complainant.  So also the O.P.No. 3 is the financer and no deficiency  in service   or unfair  trade practice can be attributed to it under above  discussed  facts and circumstances  of the present  case. Thus, the complaint deserves to be dismissed.

ORDER

i.          The complaint is dismissed

ii.          No  order as to cost in complaint.  

iii.         Copy of order be furnished to both the parties, free  of cost.

iv.        The original record and proceedings  of  complaint bearing No. 170/2014 be retained with  the record  and  proceedings of this complaint.