For the Complainant: Ld. Advocate Sambit Mahata

For the OP: Ld. Advocate Kaushik Sinha

FINAL ORDER / JUDGEMENT

Order No-38

Date:22-04-2024

The record is taken up for delivery of Judgement.

The complainant’s case is that he purchased a four wheeler (XUV-300) bearing registration no-WB50C6460 from OP/Dealer under invoice dated- 27.12.2019 for Rs. 11,64,828/-            (Rupees Eleven lakh sixty four thousand eight hundred twenty eight only) but after purchase  some technical defect in particular engine cropped up operational problem for which the car was placed for service and repair at Service center. Even after first and second free service the complainant could not ply the car on road smoothly. Ultimately the engine of the car was inactive. The complainant was not satisfied with the service and maintenance of the car and has reason to believe that the car is pre-owned and has been sold to the complainant with inherent and manufacturing defect beyond service and repair. The complainant has therefore approached this Commission for appropriate relief against the OP alleging deficiency in service and unfair trade practice.

OP-Dealer contested the case by filing written version/Additional Written Version denying the material allegation of the complaint contending inter-alia that the complainant has filed the instant case with false allegation of inherent defect of the car and also the fact of pre-owning the same on mere assumption and presumption without any material basis. The OP has therefore prayed for dismissal of the case.

In support of the Complaint case Affidavit-in-Chief of the Complainant has been filed and the OP-Dealer also filed Affidavit-in-Chief in support of the defence case. Questionnaires and rejoinder has as usual been filed by the parties. BNA has been filed on behalf of the Complainant.

-:Decision with reasons:-

Having regard to the fact of the case contention / submission / document of both sides the Commission finds that admittedly there was existing operational problem of the engine after purchase of the car but that problem/ technical defect of the engine could not be sorted out even after requisite service. The Complainant is no doubt entitled to get through service and maintenance of car and overhauling of the engine to be rendered by the OP-Dealer at his (Dealer) own cost and expenses in view of section 86(e) of the Consumer Protection Act-2019 which provides for product liability action of the product seller.

But the serious allegation of the complainant is that the car is pre-owned as it has been sold to the complainant after it is officially sold and in support of his contention Ld. Advocate for the complainant has referred to Bill dated-18.08.2020 and Bill dated-16.01.2021 which shows that the car is earlier sold on 28.02.2019. It is not conceivable how the car in question sold on 28.02.2019 could be sold subsequently to the complainant on a later date that is on 27.12.2019 as per invoice.

But the real fact is otherwise as is evident from the documents on record. The manufacturing Company Mahindra and Mahindra Ltd. sold the car in question to the OP-Dealer under invoice dated-11.02.2019 the copy of which is on record produced by the Ld. Advocate on behalf of the OP-Dealer. The OP-Dealer thereafter got delivery of the car in question on-28.02.2019 from the KGP-Workshop. Mentioning of the delivery date that is 28.02.2019 as sold date appearing in the bill dated-18.08.2020 and 16.01.2021 as above has created confusion in the mind of the Complainant as if the car was earlier sold to someone else. OP-Dealer is not the agent of Manufacturing company of the car and there exists principal to principal relationship between the Manufacturing company and the Dealer. In other words it can be said that before sale of the car to the customer the Dealer has to buy the car from the Manufacturing company. So, initial purchase of the car by the Dealer from the Manufacturing company and thereafter sale of the same car to the customer on a subsequent date cannot be said to be a pre-owned car as alleged by the Complainant.

The Commission is therefore unable to accept the contention of the complainant in this regard that the car is pre-owned one. However, OP-Dealer is liable to render all sorts of service and maintenance of the car in question including overhauling of the engine at his own cost and expenses.

Hence, the case succeeds in part.

It is ordered…

that the case be and same is allowed in part on contest but without cost. OP-Dealer is directed to provide satisfactory service and maintenance of the car in question including the overhauling of the engine at his (Dealer) own cost and expenses within one month from this date in default law will take it own course.

Both parties are supplied the copy of this order free of cost.