(Passed on 13.06.2016)

Per Mr B A Shaikh, Hon’ble Presiding Member

1.      The appeal Nos.A/03/537 & A/03/1853 are filed respectively by the opposite party (for short O.P.) Nos.1 & 2 against the same order dtd.04.03.2003 passed by District Consumer Forum, Yavatmal in consumer complaint bearing CC No.264/2002, whereby the complaint has been partly allowed.

(Both parties in appeal are hereinafter referred to by their original status in the complaint as complainant and O.P.Nos.1 & 2 for the sake of convenience.)

2.      The case of the original complainant, who is respondent No.2 in both these appeals, as set out in the complaint in brief, is as under.

          The complainant purchased a car from a dealer, who is original O.P.No.2, which was manufactured by original O.P.No.1 for a consideration of Rs.3.66 Lacs on 14.02.2000.  The complainant after purchasing that car found that when the said car was moved towards right side, left side or back side, its gear used to come down to neutral automatically and its engine was raising sound. The car was taken for repairing to O.P.No.2 on 22.05.2000, 05.07.2000, 13.03.2001 and 27.08.2001. However, the said defect could not be removed by O.P.No.2. On the contrary, on 13.03.2001 the O.P.No.2 recovered Rs.1,137 & Rs.125/- from the complainant for repairing.  Considering the warranty period, the complainant made complaint in writing on 07.08.2011 to O.P.No.2 and to its Head Office on 30.08.2001 about the said defect in the car.  They gave reply to the said complaint and regretted for the inconvenience caused to the complainant.  However, they could not remove the said defect, which was found to be manufacturing defect. Therefore, lastly the complainant served legal notice dtd.28.06.2002 to the O.P. Nos.1 & 2 but they did not pay any heed to the notice.  Therefore, the consumer complaint was filed before the District Consumer Forum, Yavatmal praying for direction to O.P. Nos.1 & 2 to replace that defective car by new car or in alternative to refund the price of the car, expenses incurred by him for registration of the vehicle with RTO, carrying the vehicle from Yavatmal to Nagpur for repairing and compensation for physical & mental harassment and cost of the complaint as specified in the complaint in detail.

3.      The O.P. Nos.1 & 2 filed their separate reply before the Forum and thereby resisted the complaint.

4. They admitted that the complainant purchased the car from O.P. No.2 manufactured by O.P.No.1 on 14.02.2000 for Rs.3.66 Lacs.  According to their case, warranty period of 365 days from the date of delivery of the vehicle, was expired on 13.02.2001.  The complainant availed their services during the period of warranty.  The complainant had brought the vehicle to their workshop at Nagpur on 22.04.2000, 05.07.2000, 13.03.2001 and 27.08.2001.  The car was run for 1944 Kms, 2796 Kms, 7187 Kms & 10,489 Kms respectively. The necessary servicing and work was done on the said four dates but the complainant did not report about the vehicle since 27.08.2001. The car was delivered on 27.08.2001 to the complainant as the vehicle was found okay and to the complete satisfaction of the complainant. The complaint about the slippage of the gears occurs only when car is damaged due to external force and negligence of the complainant while driving.  All the defects were eliminated by O.P.No.2 whenever it was brought for servicing.  The O.P.No.2 had sent letters dtd.24.07.2002 and 22.08.2002 calling upon the complainant to make his car available though warranty of the car had already expired on 13.02.2001. But the complainant did not bring his car to O.P. No. 2 to carry out any such repairs free of cost. The O.P.No.1 had instructed the O.P.No.2 to carry out the repairs namely replacement of car’s rail, free of cost by which the grievance of the complainant can be eliminated once for all.  However, the complainant did not make available that car to O.P.No.2.  It is denied that while turning the vehicle towards left or right or back side, the gears come into neutral side and it engine makes noise.  It is denied that there is manufacturing defect in the vehicle.  It is also submitted that the Forum below has no territorial jurisdiction to entertain the complaint and to decide it as the registered office of O.P.No.1 is at Mumbai and that of O.P.No.2 is at Nagpur and no cause of action arose within the territorial jurisdiction of District Consumer Forum, Yavatmal.  The O.P.Nos. 1 & 2, therefore, requested that the complaint may be dismissed with cost.

5. The Forum below after hearing both parties and considering evidence on record, passed the impugned order and thereby partly allowed the complaint.  The Forum while partly allowing the complaint observed in the impugned order that it has got jurisdiction to entertain and decide the complaint since the O.P.No.1 has given public notice that their car is available at Yavatmal and since part of cause of action arose at Yavatmal as last inspection of the car by representative of the O.P. was carried out at Yavatmal on 15.06.2002. The Forum also observed in the impugned order that though the vehicle was taken by the complainant to O.P.Nos.2 on four dates i.e. on 22.05.2000, 03.07.2000, 13.03.2001 & 27.08.2001 for repairing and though every time the complainant has made a complaint of gear slippage, the said defect was not removed and therefore it is a manufacturing defect.  The Forum therefore, directed the O.P. Nos.1 & 2 to take back the said vehicle from the complainant and to give new vehicle of the same model to him with warranty period and if it is not possible then refund him the price of car i.e. Rs.3.66 Lacs and also to pay him registration charges of the vehicle, insurance premium and also to refund him Rs.1,137/- and Rs.125/-, which the complainant had paid to O.P.Nos.2 in repairing and also to pay him compensation of Rs.10,000/- for physical & mental harassment and cost of Rs.2,000/-.

6. As observed above, the O.P.No.1 – manufacturer of the car filed appeal bearing No.A/03/537 and O.P.No.2 – dealer filed appeal bearing No.A/03/1853. Advocates of both parties in both appeals appeared and filed their respective Written Notes of Arguments, which we have perused.  We have also perused copies of the documents filed in appeal as filed before the Forum by both parties.

7. Advocate Mr Amit Kukday appeared for O.P.No.1 and Advocate Mr Jayesh Vora for O.P.No.2 in these appeals and they are also heard.  Advocate Mr Bhoyar had earlier appeared for the complainant in both these appeals but he failed to appear at the time of final hearing. Therefore, we considered his Written Notes of Arguments as his oral arguments.

8. The common submission is made by the learned advocates of the appellants in both appeals as made by O.P.Nos.1 & 2 before the Forum.  They, in addition to the same, have also submitted that as there is no expert evidence brought on record showing the manufacturing defect in the vehicle, the Forum erred in holding that there is manufacturing defect in the vehicle.  They have also brought to our notice the affidavit filed by the complainant in these appeals admitting that vehicle was used even after the passing of the impugned order and it met with roadside accident on 29.05.2005.  Thus, it is contended by them that had there been any such manufacturing defect in the gear box in the vehicle, then the said vehicle could not have been used by the complainant even after passing of the impugned order.  They also submitted that the Forum erred in entertaining the complaint as it has got no jurisdiction to entertain the same.  They, therefore, requested that the impugned order may be set aside by allowing both appeals.

9. On the other hand, the learned advocate of the respondent NO.1 / original complainant in his Written Notes of Arguments filed in the appeals supported the impugned order and reiterated the case of the complainant as set out in the original complaint and reproduced above in brief.  He also submitted in his Written Notes of Arguments that as the defect was not removed from the vehicle, it met with an accident on 29.05.2005 in which Ku. Trupti Upadhye died and other family members of the complainant travelling in the same car sustained grievous injuries.  Thus, according to him due to manufacturing defect in the car, the said accident took place.  He, therefore, requested that both appeals may be dismissed.

10. It is not disputed that the car in dispute was purchased on 14.02.2000 by the complainant from O.P.No.2 as manufactured by O.P.No.1, for Rs.3.66 Lacs. Thereafter, the complainant had brought that vehicle to O.P.No.2 for servicing and repairing on 22.05.2000, 05.07.2000, 13.03.2001 and 27.08.2001. At the time of servicing the complainant made complaint about slippage of gear and engine noise.

11.  It is pertinent to note that the complainant, even after passing of the impugned order on 04.03.2003 by the Forum, used that vehicle. He filed an affidavit before this Commission in the appeals. He stated in the said affidavit that during the pendency of the appeals when he was going with his family member to visit his relative at Alapalli on 29.05.2005, the vehicle met with an accident and in that accident one of the family members Ku. Trupti Upadhye died and other members sustained grievous injuries.  He also filed a copy of the FIR lodged at the Police Station, Aheri, Dist. Gadchiroli. It shows that the vehicle was driven in a high speed and negligence by its driver and therefore, it turned turtle and came to left side of the road under the condition of dragging and jumping and its two passengers got injuries and taken them to the hospital for treatment.

12. The aforesaid FIR itself has made it crystal clear that the car was being driven by its driver with high speed and therefore accident took place on 29.05.2005 when it was within the jurisdiction of Police Station, Aheri, Dist. Gadchiroli.  Thus, car was taken to long distance from Yavatmal on the date of accident.  Therefore, presumption can be drawn that there was no manufacturing defect in the vehicle before the said accident. Had there been any such manufacturing defect in the gear box of the vehicle then it could not have been driven to such a long distance in such a high speed by its driver.  It is also not specific case of the complainant that the car was not used by him due to manufacturing defect in the car.  Therefore, we find it very difficult to hold that even though there was manufacturing defect in the car, it could be used by the complainant even after the date of impugned order.

13. No doubt, car was taken for four times to the O.P. No.2 by the complainant i.e. on 22.05.2000, 07.05.2000, 13.03.2001, 27.08.2001 for repairing.  However, on the said four occasions O.P.No.2 did the servicing and repaired the car and ultimately the car was taken back on each occasion by the complainant.  The complainant drove the car from the date of purchase i.e. from 14.02.2000 till last date of servicing i.e. 27.08.2001 up to 10,489 Kms as seen from the Job Card not and disputed by the complainant. The complainant has not explained as to how he could drive the car for said long distance of 10,489 Kms during the period from 14.02.2000 to 27.08.2001 when there was such manufacturing defect in the gear box of the car.  There is not expert opinion to prove that the gear box of the car was having manufacturing defect. In our view, when car was driven before and after the impugned order for a such long distance and there is no cogent evidence to prove that there is manufacturing defect in the engine of the car, it cannot be accepted that there is actually any such manufacturing defect in the car.

14. The Forum, thus, erred in coming to the conclusion without any evidence on record that there is manufacturing defect in the vehicle. Hence, the impugned order cannot be sustained in the law on this sole ground. Therefore, both these appeals deserve to be allowed.

Hence, we pass the following order.

ORDER

1. Both appeals bearing Nos. A/03/537 & A/03/1853 are hereby allowed.
2. Impugned order is set aside.
3. The complaint stands dismissed.
4. Both parties to bear their own cost in both the appeals.
5. Copy of the order be furnished to both parties free of cost.