This is a case filed by the Complainant u/s 12 of C.P. Act, 1986 as amended upto date.

The present complaint under Consumer Protection Act related with automobile dispute.  Complainant PranabMondal, S/o Nimai Ch. Mondal of Dubrajpur, P.O. Nutangram, P.S. Simlapal, Dist. Bankura filed a complaint against B.D. Motors Ltd. and 3 others.

As stated by the Complainant for the purpose of personal and family use purchased a four wheeler from O.P. no.1 & 2 by way of financial loan assistance from O.P. no.4.

Complainant booked one Indigo ECSLS TDI four wheeler car on 24-09-2013 from O.P.  no.2 i.e. B.D. Motors Ltd.  O.P. no.1 & 2 is joint and amalgated venture and O.P. no.3 is the manufacturer of the cars.

On 30-09-2013 Complainant purchased a Tata Indigo CS Diesel 2S version car for a sum of Rs.5,32,734/- (Five lakhs thirty-two thousand seven hundred and thirty-four only) bearing Engine No.4751 DT 4F WYP 32098, colour PORCLN WHITE with seating capacity 4 + driver.  Registration No. of the car WB 68N / 9002.

Within a short span of time Complainant faced trouble with the aforesaid vehicle and O.P. no.1& 2 and on their engineering intervention the problem was sorted and

temporarily.  Thereafter, O.P. no.1 & 2 offer a scheme namely Amc Gold for meeting all sorts of trouble for the vehicle in future which costs Rs.6340/- (Six thousand three hundred and forty only).  Complainant took this offer on 30-11-2013.  Later on, Complainant paid Rs.38, 777/- (Thirty eight thousand seven hundred seventy seven only) for service of the vehicle to the authorized service centre of the O.P. No.1 & 2.  All this happened during the effective period of warranty and AMC Scheme.

Complainant again faced major trouble with the vehicle in question within a period of couple of months.  This time face a major Jerk when the aforesaid vehicle went out of order and dead.  This time Complainant had to pay Rs.34,865/- (Thirty four thousand eight hundred sixty five only).  Although this was warranty and AMC covered period.

Complainant intimated time and again to the officials of O.Ps. over their cell phone.  At last within one year the aforesaid vehicle suddenly got out of order and major break down and since then the vehicle placed under care and custody of O.P. no.1 and till date the same is within the possession of O.P. no.1.  Because the vehicle purchased through financial assistance from O.P. no.4.The Complainant compelled to pay loan EMI along with interest.

        Complainant lodged complain before Asst. Director, C.A., F.B.P., Bankura which was duly registered as Complaint index No. 72/Bank/14-15 dt. 11-07-2014. Notice issued upon O.P. No.1 &2 but no response made by O.P. No.1&2.  Since then the defective vehicle lying at the possession and custody of O.P. No.1.  Suffered inexplicable harassment, trouble, mental pain and agony and Complainant prayed for replace of defective vehicle with a new one or to pay back the cost of Rs.5,32,734/-(Five lakhs thirty two thousand seven hundred thirty four only) with @18%interest from the date of purchase of the vehicle.  The prayer also contains refund of illegal changes of Rs.73,642/-(Seventy three thousand six hundred forty two only), Rs.3,00,000 (Three lakhs only), a compensation and Rs.50,000/- as litigation cost.  Hence the complaint.

            On notice, O.P. No.1 &2 being a joint venture filed a joint W.V. O.P. No.3 filed W.V. respectively and O.P. No.4 filed W.V. in the argument stage.  During proceeding of the case, in spite of filing W.V., O.P. No. 1, 2 & 4 did not participate in the argument and heard ex-parte.  O.P. No.3 filed a petition claiming expert intervention should have done by Complainant.  Vide order no. 21 dated 03-01-2017 the petition rejected by this Ld. Forum. The order was not challenged.

The case record shows as per order no.27 dated 22-03-2018 of the Forum both Complainants and O.P. No.3 written notes on argument.  Complainant stated the matter in brief which related to the vehicle in question had a manufacturing defect and within warranty and AMC period Complainant had to pay charges which was unlawful and an act deficiency in service and unfair trade practice.  No expert opinion taken place to find out and solve the manufacturing defect by O.P. No.1, 2 & 3 sides.  It is also stated that O.P. no.1 & 2 did not take part before the Dy. Director, Consumer Affairs & Fair Business Practices, Bankura to solve the litigation.

O.P. no.3, the manufacturer of the vehicle in question contested the case.  O.P. no.3 is a multinational company and manufacturer of various types of passenger cars.  All the allegations made by the Complainant denied by O.P. no.3.O.P. no.3 relying on expert report from a recognized and notified laboratory under sec. 13(1) of the C.P. Act.  As stated by O.P. no.3 the vehicle in question had a extensive usage.  Details of servicing report with covering of distance and accident repairs on 02-01-2014 have been discussed during the argument stage and have annexed so far.  Numbers of citation referred by O.P. no.3.  In connection with warranty case of MarutiUdyog Ltd. Vs. Sushil Kr. and Others case (JT – 2006(4) SC 113) has placed.  In the present case O.P. no.3 clearly denying of the manufacturing defect of the vehicle in question.

                                                                                   Points for Determination.

The core  issue is to be decided in this complaint are :

1)  Does the vehicle in question had a manufacturing defect ?

2)  Was there any deficiency in service ?

3)  On whom onus of proof lie ?

4)  Was there any need of expertreport ?

5)  Does the Complainant entitled to refund back of the cost of the vehicle and other reliefs prayed for.

                                                                                      Decision with reasons.

After thoughtful consideration and upon perusal of records on the file in our view the vehicle in question had manufacturing defect.  Defect in a vehicle may come under the category of manufacturing defect or a vehicle is said to suffering from defect if there was any fault, imperfection or shortcomings in the quality, quantity, potency Purity and

standard, which was required to be maintained under any law in force.  In the instant case O.P. no.3 the manufacturer, has taken the plea that the vehicle did not suffer from any manufacturing defect and hence they had no liability in the matter.

It is very clear that the vehicle did suffer from defects as it had taken to the work shop of O.P. no.1 & 2 from time to time.  The owner of a vehicle is not expected to take such vehicle to the workshop a number of times, unless the vehicle suffers from genuine defect.  It was the duty of O.P. no.1, 2 & 3 to solve the problem of Complainant and ensure that the vehicle is delivered back to the Complainant in a road-worthy condition free from all defects.  In the present case however the same appears not to have been done.

Ld. Counsel for the Complainant argued that the Complainant is a common individual and he cannot be equated with the O.P. no.1, 2 & 3.  Wherever there is a complaint of manufacturing defect it should be the burden duty of the O.P. no.1, 2 & 3 to appoint expert and call to prove that the car does not suffer from manufacturing defect.

It is observed that regarding warranty the Counsel for O.P. no.3 argued that during warranty period the vehicle in question covered more than 7000 kms. within 9-months and again in the W.V. stated that the vehicle had fallen of accident and warranty shall not apply.  We find no documentary evidence of the same have supplied in this regard.  The statement is totally contradictory.  Although it is right that each and every damage vehicle cannot be repaired free of cost under warranty.

It is well-known that from the consumer point of view.  Liability based on contract is in practice strict, for once it has established unfitness or unmerchantability he cannot be defeated by a defence that all reasonable care has taken to prevent the defect.  O.P. no.1, 2 & 3 has tried to take same defence.

We are in opinion that in the instant case there is gross deficiency in service on the part of O.P. no.1,2 & 3.  No relief has been claimed on O.P. no.4.  So, O.P. no.4 is being set free from the case.

During warranty and AMC period the Complainant had to pay charges several times which is unjust and illegal and part of unfair trade practice done by O.P. no.1 & 2.

Taking a view that 60% cost of the vehicle and first service charge of Rs.38,777/- (Thirty eight thousand seven hundred seventy seven only) will be refunded to the Complainant as to end the dispute.  Replacement or repair of the vehicle may not be upto the satisfaction of the Consumer.

Hence, it is

                                                                       Ordered

That the Complainant Case No.136 of 2014be and the same is allowed on contest against O.P. no.3 and exparte against O.P. no.1, 2 and 4. 

O.P. no.1, 2 and 3 are jointly and / or severally directed to pay Rs.3,19,614.40 (Three lakhs nineteen thousand six hundred fourteen and forty paise only) to the Complainant.

O.P. no.1 and 2 are also directed to refund of service charge of Rs.38,777/- (Thirty eight thousand seven hundred seventy seven only) and to pay Rs.10,000/- (Ten thousand only) as litigation cost to the Complainant.

All the above mentioned order shall be carried out within 40-days from the date of this order.  In default the aforesaid amount Rs.3,19,614.40 (Three lakhs nineteen thousand six hundred fourteen and forty paise only) shall carry simply interest @ 10 % p.a. for the entire period of default.

Complainant is directed in compliance of the above order, the Complainant will not have claim as the vehicle in question lying with O.P.no.1 and he shall complete formalities for transfer of ownership of the vehicle to O.P. no.1 / their assignees.

Let a plain copy of this order be supplied to the parties free of cost.