<br /> O R D E R <br /> <br /> <br /> SRI. D.KRISHNAPPA., PRESIDENT., <br /> <br /> The grievance of the complainant against the Ops in brief is, that he purchased AVEO 1.6 LT, of General Motors car manufactured by OP 1 and that OP 2 and 3 are the dealers for sales and services of OP 1. That he purchased it on 18-08-2006 from Garuda Autocraft a dealer. That within a period of one week he realized that the car was not functioning smoothly and he brought it to the notice of Garuda Autocraft and it was even taken to them on 16-09-2006 with a compliant of noise in the clutch. Though Garuda Autocraft tried to rectify the problem but was in vain. That car was not road worthy and there was noise in the initial stage. Within one or two weeks noise came in the front suspension etc as detailed in the work sheet furnished by OP 2. Then he sent a vehicle for service and for removal of the defect to the Garuda Autocraft and to OP 3 for rectification of the problem. But none of them were successful in rectifying the mal-functioning of the car. All the three dealers opined that it was a manufacturing defect. That he requested OP 3 and 4 to give it in writing about the manufacturing defect but they refused to do so. That he sent several e-mails to Karl Slim VP GM, GM customer care and contacted them about the malfunctioning but they failed to cure the defect. Then he thereafter from June 2008 asked OP 2 several times to tell OP 1 to replace the car or to refund the amount with interest but they failed to respond. Hence prayed for refund of the value of the car Rs.7,30,000/- with interest @ 18% alongwith compensation of Rs.1,00,000/- and cost of this compliant. <br /> <br /> All the three Ops have appeared through their respective advocates. OP 1 has filed version contending that the compliant is barred by limitation, that the complainant has not made M/s. Garuda Autocraft as a party in this compliant who alleged to had told him about the manufacturing defect and who sold the car to him. The 1st Op denying the allegations of the complainant that there is manufacturing defect in the car has further contended that the complainant has not proved to the satisfaction of this forum about the defect and stated that the complaint has run the car for nearly 30,000 kms within a span of two years. The problem that the complainant has aired is and are nothing but the routine problems that would rise in the course of using the vehicle for all these years and when it has run for nearly 30,000 kms. It is further stated that certain parts of the car are subject to wear and tear are bound to become defective or break down because of long use and re-placement of them have been done by attending to effective repairs by the approved service providers and denied the other allegations of the complainant and prayed for dismissal of the compliant. The 1st OP has filed further additional version contending that the vehicle as on that date had run 40,000 kms and the routine repairs are attended and the car do not contain any inherent defect. <br /> <br /> OP 2 and 3 who are the approved service providers have in their version denied any deficiency in their service. The 2nd OP has further stated even as per the allegation of the complainant if there is any manufacturing defect they are not answerable for it. That the complainant has not pointed out any deficiency in their service when they attended to certain routine repairs and he is nothing to do with the manufacturing defects if any and he has been un-necessarily dragged to the forum and thus has prayed for dismissal of the compliant. OP 3 has stated that he is neither a manufacturer nor a dealer who sold the car to the complainant. That the complainant has not made is dealer as a party to this compliant. Therefore the compliant is bad for non-joinder of necessary party. That his further contention is that as and when the car was taken to them for any routines repairs and check up they attended them and stated that comparison of the complainant about the noise he is hearing in his car with the noise of his wife’s car is un-comparable because of the characteristics of the car of the complainant which has hydraulic action of the shock absorbers. That noise the complainant complaining is natural. This OP further denying his knowledge about the problem faced by the complainant that Garuda Autocraft failed to rectify the problem, denied any deficiency and also denied that he had opined and told the complainant that there was manufacturing defect in the car of the complainant.<br /> In the course of enquiry into the complaint, the complainant and Ops 2 and 3 have filed their affidavit evidence by reproducing what they have stated in their respective compliant and version. The complainant alongwith the compliant has produced copies of RC and a copy of the work sheet furnished by OP 2, copies of correspondences, legal notice and copies of postal acknowledgement. 1st OP has produced a copy of comprehensive history sheet of the vehicle, other Ops have not produced any documents. Counsel for the 1st OP has filed written arguments. Heard the counsel for the complainant and OP 3 and perused the records. <br /> <br /> On consideration of the materials referred above, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the car manufactured by OP 1 and purchased by him is having manufacturing defect or defects? <br /> <br /> 2. To what relief the complainant is entitled to ?<br /> <br /> Our findings are as under:-<br /> <br /> Point No: 1 in the negative.<br /> Point No: 2:see the final order.<br /> <br /> REASONS: POINT No:1 & 2:: The 1st opponent admitting that a car manufactured by them was sold to the complainant on 18-08-2006 for consideration, has denied the allegation of the complainant that it contain manufacturing defect or defects. Therefore it is for the complainant to prove the same in order to become entitle for the reliefs he has sought.<br /> <br /> The complainant in the compliant and also in the affidavit evidence has stated as if the car he purchased from Garuda Autocraft a dealer was not functioning smoothly and he realized it within a period of one week from the date of purchase and he brought it notice to the dealer. It is further contended by him that the dealer from whom he purchased the car though tried to rectify the same but he could not. The complainant has not made the dealer as a party and produced documents to prove that the defect which could not be rectified at that stage. It is his further allegation that then he took the car to OP 3 to rectify the problem, but he has not stated during which month and the year he took his car to OP 3 for attending the problems. However he has further stated he thereafter requested OP 2 also to attend to his problems who gave the detail work sheet but OP 2 and 3 could not rectify the problem and opined that there is manufacturing defect in the car and despite requesting Ops 1 and 2 to replace the car, they have not done and alleged that Ops 2 and 3 have failed to cure the defect. The complainant except producing copies of some e-mails sent to his dealer regarding extension of warranty period and complaining certain problems and requesting for repair in the month of March 2007 has not produced any documents, job sheets and complaints he lodged to OP 1 and OP 2 and 3 as the repairs to prove that therewere any problem in the car which speak of manufacturing defect or defects. Ops 1 to 3 denied that there is nay manufacturing defect or defects. Ops 2 and 3 further stated when the car was taken to them by the complainant for routine repairs they were attended and they did not find any manufacturing defect or defects and any short comings in attending to the repairs. As stated above the complainant except making some general allegations regarding some problems in the car and it is is not road worthy and not free from problem has not at all pointed out what the subsequent specific problems he is facing in the vehicle. Apart from the compliant he has raised at the beginning about the noise he was hearing in comparison to his wife’s vehicle he has not specified. Ops have answered this by explaining that the noise is of a natural one because of the hydraulic action of shock absorbers which is its characteristic. This is not denied by the complainant. OP 1 has produced copies of comprehensive history sheet of the vehicle from 24-08-2006 to 27-045-2009. Which reveal the maintenance of the vehicle, free services done and it also contain functioning of the parts of the car and certain re-placement of worn out parts of the vehicle. The complainant has not been able to invite our attention to any manufacturing defects from the history of the vehicle produced by the 1st OP. <br /> <br /> On consideration of the entire materials placed before us we find nothing but the general allegation of manufacturing defect in the vehicle. Whenever a consumer and the complainant who comes to forum with a compliant of manufacturing defect in the car or any other vehicle for that matter it is for him to prove the same through acceptable, oral or documentary evidence or through experts opinion. In the case on hand we do not even find any substance in the claim of the complainant that there is any manufacturing defect in the vehicle. He has also not been able to prove the same through any other documents like service records. History of the car and through the complaint he lodged to the concerned. If not atleast during the course of enquiry of this complaint. The complainant could have applied for appointment of an expert to get this vehicle examined and to prove the manufacturing defect. But has not choosen to, as such we find no force and merits in the allegation of the complainant. <br /> <br /> Coming to the allegations of OP 2 and 3 is concerned, those Ops have categorically stated they are neither the manufacturers nor dealers and they are only service providers. They have denied to had given any opinion to the complainant about the car having any manufacturing defect. Added to this they have further stated as and when the car was taken to them by the complainant they have effectively attended to the repairs and the complainant getting himself satisfied about the service done had taken delivery and he is using the same. This statements of the Ops are not denied by the complainant and he has not been able to prove that Ops 2 and 3 have failed to perform their duties as repairs by not repairing the car which was within their limit as such we find no proof against this Ops 2 and 3 regarding any deficiency in their service. If the dealer of the complainant namely Garuda Autocraft had given the opinion about the manufacturing defect in the car and he was being a dealer ought to have been impleaded in the compliant or atleast the complainant would have examined him in this proceedings to prove the manufacturing defect. OP the manufacturer denied all the allegations of the complainant and submitted the car of the complainant on 23-11-2009 had run 40,000 Kms from 18-08-2006 on which date he purchased the car and in the course of running for such good number of kms, the vehicle is bound to develop certain routine problems because of the expiry of life span of perishable parts, which sounds to the reason. The counsel for the 1st OP argued that in the absence of any proof of manufacturing defect this forum cannot order for either replacement of the car or for refund of the cost of the car and relied upon few decisions reported in II ( 1999 ) CPJ page 47 (SC) ; II (2005) CPJ page 72 (NC) and two more decisions. There cannot be any dispute with regard to the law laid down by the Hon’ble Supreme court and National commission the circumstances under which replacement or refund of the cost of the product can be ordered. For the reasons assigned above we are constrained to hold that the complainant has failed to prove any deficiency against the Ops and any manufacturing defect in the car he purchased. As the result we answer point NO:1 and 2 in the negative and pass the following order. <br /> <br /> O R D E R<br /> <br /> Complaint is dismissed. Parties to bear their own costs. <br /> <br />