DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                      Consumer Complaint No.176 of 2016                                          Date of institution:  28.03.2016                                         Date of decision   :  27.09.2017

Jatinder Singh son of Lakhbir Singh resident of village Fatehulapur, P.O. Kharar, District Mohali.

                                  ……..Complainant

                                        Versus

1.     General Manager C.M. Auto Sales Pvt. Ltd., N.H.95, Kharar, Morinda Road Village Khanpur, Tehsil Kharar.

2.     Works Manager C.M. Auto Sales Pvt. Ltd., N.H.95, Kharar, Morinda Road Village Khanpur, Tehsil Kharar.

                                                      ………. Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President                          Shri Amrinder Singh Sidhu, Member.

Mrs. Natasha Chopra, Member.

Present:    Shri H.S. Kang, counsel for the complainant.

                Shri Amit Bhanot, counsel for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant, Jatinder Singh has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.             The complainant purchase new Maruti Swift Car Model VDI BS-iv colour white and  delivery of which was made to the complainant on 26.08.2014.  At that time, the OPs had given warranty of two years from 26.08.2014 to provide free service to rectify any defect pointed out in the material, workmanship and development etc. After six months i.e. third service by the authorised service station of the OPs, the colour of the windows, side doors and back bumper etc.  has changed/turned yellowish.  The complainant visited the OPs many times with the request to remove the defect. The OPs took out photographs of the changed colour of side doors, windows and body of the car but no action has been taken for removing the defect.  The complainant sent a legal notice to the Ops but the OPs have not sent reply to the legal notice also. Hence this complaint for giving directions to the OPs to cure the defect or to exchange the car and pay him compensation of Rs.2,00,000/- for the inconvenience suffered by him alongwith litigation expenses to the tune of Rs.50,000/-.

3.             The complaint is contested by the OPs by filing reply, in which they have pleaded in the preliminary objections that the complaint is bad for mis joinder and non joinder of necessary party. The OPs have no concern with the issue involved in the complaint as the discolouring of the body of the vehicle could be a manufacturing defect or it could be due to ill maintenance/repair by the complainant. The complainant has not impleaded the manufacturer as a party in the present complaint. The answering OPs are merely authorised car dealer and not manufacturer. The vehicle was delivered to the complainant to his satisfaction. The complainant lastly visited the OPs on 20.05.2016 and the complainant must have got the vehicle serviced/repaired after an accident while using some inferior quality paint from some local paint shop.  The complainant has neither annexed any expert report nor photographs to show or conclude as to what is the real problem or why the problem has persisted in the first place. On merits, the OPs have pleaded that the warranty is by the manufacturer and not by the OPs. The two years warranty upon any manufacturing defect is subject to just and fair exception and that not everything is covered under warranty period of the car. The OPs have provided the services as per schedule of the vehicle well on time and to the satisfaction of the complainant. The complainant has himself admitted that the colour of the vehicle at the time of delivery was white to his satisfaction.  The complainant when visited the OPs, the vehicle was duly inspected and the complainant was told that the problem was due to improper use and occupation of the vehicle by the complainant or could be due to bad paint service by some local shop using inferior quality paint on the bumpers. The complainant has not disclosed that the manufacturer, at the request of the complainant inspected the vehicle and reported the same to the complainant and the complainant is well aware of the same. Had there been a manufacturing defect, then the problem of discoloring would have been all over the car.  The warranty does not include improper use and occupation and misuse of the vehicle in any manner.  The complainant has been provided satisfactory services by the OPs on his visits to them. The OPs have denied receipt of legal notice from the complainant. Thus, denying deficiency in service on their part, the OPs have sought dismissal of the complaint.

4.             In order to prove the case, the counsel for the complainant tendered in evidence his affidavit Ex. CW-1/1; copies of sale certificate Ex.C-1; RC Ex.C-2; warranty policy Ex.C-3; second free service bills Ex.C-4 to C-7; cover note of insurance Ex.C-8;  original photographs Ex.C-9 and C-10 and legal notice Ex.C-11. In rebuttal counsel of the OPs tendered in evidence affidavit of Jagdish Thakur their Workshop Manager Ex.OP-1/1.

5.             The learned counsel for the complainant has submitted that that OPs have committed deficiency in service by not removing the defective yellowish colour from the window, side doors and its back bumper as it is evident from the photographs Ex-C-9 and Ex.C-10. Learned counsel pleaded that as per the warranty policy Ex-C-3, the OPs were liable to remove or replace the defective paint parts as the said vehicle was within the warranty period. He argued that the act and conduct of the OPs has caused unnecessary mental and physical harassment to the complainant and the complainant deserves to be compensated for the same.

6.             On the other hand, learned counsel for the OPs has submitted that the answering OPs are merely authorized car dealer and not manufacturer. He further submitted that the warranty policy was issued by the manufacture and it was a necessary party. Learned counsel pleaded that the complainant had got his vehicle inspected from the manufacture, but this fact has intentionally been concealed by the complainant. He argued that in absence of any expert opinion, the answering OPs cannot be held liable for deficiency in service. Learned counsel also argued that complicated facts are involved in the present case, thus the same be referred to civil court for proper adjudication.

7.             After hearing the learned counsel for the parties and going through the pleadings, evidence, written submissions and oral submissions, we are of the view, that  the onus to prove manufacturing defect lies on complainant.  No expert evidence produced to prove alleged defects of paint being manufacturing defect in vehicle. Further the complainant has also not impleaded the manufacture, who had issued the warranty policy Ex.C-3. The complainant has also failed to file any application for inspection of the said vehicle by expert nor he has place on record any material to prove his contentions. The photographs Ex-C-9 and Ex.C-10 of the vehicle without any support of expert opinion cannot be relied upon.

8.             In the case of Ess Pee Automotives Ltd. Through its Director vs. SPN Singh & Ors.; 2015 (1) CPR 321 (NC), the Hon'ble National Commission has held that the dealer cannot be held liable for manufacturing defects in car. Further in the case of Tata Engineering & Locomotive Co. Ltd. & Ors. vs. Bachchi Ram Dangwal & Anr.; II (2009) CPJ 90 (NC), the Hon'ble National Commission has held that the deficiency in warranty period services alleged in that case, if no reliable expert evidence produced in support of manufacturing, order allowing complaint set aside.  The complainant-respondent No. 1 in both the appeals, neither submitted any cogent evidence or reliable expert evidence of any automobile engineer or expert to prove that there is a manufacturing defect in the said motorcycle nor he had prayed before the District Forum to obtain expert report from an automobile engineer by sending the said motorcycle in any lab for test with a view to find out whether such motorcycle was suffering from any defect alleged in the consumer complaint.

9.             In view of our aforestated discussion and the decision of the Hon’ble National Commission in Ess Pee Automotives Ltd. Through its Director vs. SPN Singh & Ors (supra)  and Tata Engineering & Locomotive Co. Ltd. & Ors. vs. Bachchi Ram Dangwal & Anr. (supra) the complainant has been failed to prove any deficiency in service or unfair trade practice on the part of the OPs. Accordingly, the present complaint is dismissed with no order as to costs.    

                The arguments on the complaint were heard and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced.

27.09.2017      

                                         (A.P.S.Rajput)           

President

(Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member