Per Mr P N Kashalkar, Hon’ble Presiding Judicial Member
This is an appeal filed by the original complainant whose complaint was dismissed by the District Consumer Forum, Chandrapur by passing an order dtd.24.08.2009 in consumer complaint No. CC/09/33.
Facts to the extent material may be stated as under:-
1. Complainant had purchased Tata Safari Décor bearing No.MH34-K-7040 for Rs.7,25,032/- on 18.01.2008 from the o.p. No.1. The engine of the said vehicle was under warranty for 18 months. According to the complainant within four months the said vehicle went out of order on the road on 25.05.2008. Till that time the vehicle had travelled 17992 Kms. He took the vehicle to o.p.No.1 at Jayka – o.p.No1 regarding the complaint like vehicle break down for the complaint of engine not starting, timing belt found broken, cylinder head aluminum cover cracked, HLA broken, Plastic timing belt cover broken with. The vehicle was kept with o.p.No.1 and it was returned after repairing. As per the Job-card O.p. No.1 replaced cylinder head assembly, 4 injectors, time belt U.W. Thereafter, the complainant continued to run the vehicle. But again within 6 months i.e. on 11.11.2008, when the vehicle had travelled the distance of 33778 Kms, it broke down. Hence, the vehicle was taken to o.p.No.1 – Jayka Motors. He was told that the same type of problem rectified and repaired as occurred previously and he was assured that the vehicle would not break down. The complainant alleged that within 10 months owing to same problem vehicle had broken down twice on the road and therefore, he filed consumer complaint and claimed for replacement of said vehicle with new one or refund of cost of vehicle alongwith interest @ 15% p.a., damages of Rs.50,000/- towards physical and mental harassment and Rs.10,000/- towards cost of complaint from o.p. Nos. 1 & 2.
2. O.p.No.1 & 2 filed their written version and pleaded that the vehicle was not having any manufacturing defect as per the Job-card. Whenever there was defect or deficiency or the repairs required to be done in the vehicle, it was repaired free of cost, made roadworthy and returned to the complainant. O.ps. further pleaded that the complainant was driving the vehicle very recklessly and irresponsibly. The complainant was responsible for the defects occurring to the vehicle. He had not used the vehicle properly. He used to drive the vehicle in very high speed. He was negligent in driving the vehicle but still whenever the vehicle was brought in the workshop of o.p.No.1 it was repaired free of cost, since it was within warranty period. Therefore, they pleaded that the complaint filed by the complainant should be dismissed with cost.
3. The Forum below, on considering the affidavits and documents placed on record and after hearing both the counsels of o.p.No1 & 2, found that o.ps were not guilty of deficiency of service. They had repaired the vehicle twice but the vehicle was driven very recklessly. The vehicle had travelled 33778 Kms within a span of 10 months. Moreover, several times the vehicle was taken to o.p. No.1 they had changed the spare parts required to be replaced for making it roadworthy. Since it was in the warranty period they had changed the spare parts free of cost. The Forum below agreed with the contention of o.ps that the vehicle was not having any manufacturing defect. Moreover, the Forum below also noted that whenever the vehicle was kept in the workshop of o.p.No.1 for its repairs, the standby car-Indigo was given to the complainant for his use. Complainant had used this car for three months. But the complainant did not mention this material fact in the complaint. The Forum below also held that the complainant had not come before the Forum with clean hands. The Forum below discarded the report of Gautam Kothari for the valid reason because his affidavit was prepared by filling up some gaps and it was observed that Mr Kothari had not seen the vehicle when it was lying in the workshop of o.p.No.1 and Mr Kothari also noted in his affidavit that only after opening the engine, the defects, if any, could be noticed. Therefore, the forum below was of the view that the complainant failed to establish the manufacturing defect in the engine and as such the Forum was pleased to dismiss the complaint.
4. More over, the Forum below found that consumer complaint was filed by the complainant at Chandrapur, whereas o.p. Nos.1 & 2 were from Nagpur. He had purchased the said vehicle at Nagpur and it was also repaired at Nagpur. The cause of action occurred at Nagpur. So District Consumer Forum, Chandrapur had no jurisdiction to entertain and try the said complaint but the o.ps did not take any objection on this point so the Forum did not make further comments in its order.
5. Under the circumstances, the Forum was pleased to dismiss the complaint; hence, the complainant filed this appeal.
6. We heard Adv. Mr Nabira for the appellant and Adv.Mr Pathak for the respondent and perused the impugned order and documents available on record.
7. We are finding that the order passed by the District Consumer Forum, Chandrapur is appearing to be just and proper and there is no substance in this appeal. The said vehicle was not having manufacturing defect. The vehicle had travelled more than 33700 Kms within a span of 10 months, which per se proves that the said vehicle was totally in roadworthy condition. The said vehicle was driven very rashly, negligently and speedily and appellant was not taking due care of the vehicle.
8. We fully agree with the finding of the Forum below. There is no substance in appeal The Forum has rightly dismissed the complaint.
Hence, we pass the following order:-
ORDER
1. Appeal stands dismissed.
2. No order as to cost.
3. Copies of this order be supplied to the parties.
Pronounced on 14.07.2011.
