BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                               Dated this the 11^th of April 2011

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT                 

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.148/2010

(Admitted on 07.05.2010)

Mr.P.A. Abdul Khader,

Aged about 45 years,

So. Moidu Kunhi,

RA. Post Ishwara Mangala,

Puttur Taluk.                                    …….. COMPLAINANT

(Advocate for the Complainant: Sri.P.P. Hegde).

          VERSUS

Karnataka Agency,

N.H. 17, Kottara Chowky,

Ashoka Nagar Post,

Mangalore.

Represented by its Manager.               ……. OPPOSITE PARTY

(Advocate for the Opposite Party: Sri.O.T. Bhat).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging defect in vehicle against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submitted that, he has purchased a New Mahindra Logan Car from the Opposite Party on 31.12.2009, immediately on taking delivery of the vehicle, he has noticed the following defects in his car i.e.,

1. R.H. Rear Door Paint Difference (its paint was entirely different from other painting in the car and it looked very old).
2. R.H. Rear Door Pad Sound.
3. All the glasses of the vehicle are of 2007 and 2008 make even though the car sold stating that it was of 2009 make and the same was brought to the notice of the Opposite Party in their service station. The main allegation of the Complainant is that, the car sold by the Opposite Parties is defective as stated supra.  Aggrieved by the above, the Complainant issued a legal notice dated 02.03.2010 calling upon the Opposite Party to replace the car with a new car and also compensate for the defects in the vehicle sold by them but the Opposite Party not complied the same.  Hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to refund the value of the car for Rs.6,82,629/- along with interest at 12% p.a. from the date of payment till the date of repayment or to replace the car with a new car and also claimed Rs.2,00,000/- as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version stated that the complaint is not maintainable as the complaint is filed against the Manager of the Opposite Party, in fact M/s.Karnataka Agencies is a partnership firm represented by its partners. It is stated that, M/s.Karnataka Agencies is only a sales and service concern of Mahindra and Mahindra Limited.  Mahindra Renault Private Limited which are the manufacturers of the respective vehicle marketed by them and the complaint filed without arraying the manufacturer Company is bad for non-joinder of necessary party.

          It is further stated that, the subject vehicle was received by the Opposite Party from the manufacturer Company as per the invoice cum delivery challan dated 19.02.2009., the said vehicle is taken delivery by the Complainant from the Opposite Party as per the invoice No.6684 dated 31.12.2009.  The dates printed in the glasses of the vehicle cannot be considered to decide the year of the model of the vehicle as the same is to be judged from the date of invoice of the manufacturer of the vehicle and the date of delivery of the subject vehicle.  It is also stated that, there is a possibility of replacing the glasses as well as the door of the subject vehicle outside the authorized dealers.  As per the invoice dated 19.02.2009 issued by the manufacturer of the subject vehicle in the name of the Opposite Party that the subject vehicle is of 2009 model.  Thereafter, the first service was done on 15.02.2010 by which time the vehicle had covered 2,127 kms. All the complaints given by the Complainant under the job card were attended by the Opposite Party and delivered back to the Complainant.  The Complainant kept the vehicle for 2^nd service on 15.03.2010 when the vehicle had covered 4,260 kms.  Even during the 2^nd free service, the alleged defects were not brought to the notice of the Opposite Party.  The Complainant also had visited the workshop of the Opposite Party in between the aforementioned two free services, for which the separate job card was opened.  It is stated that, there is no cause of action to raise the dispute and there is no deficiency or defect in car and prayed for dismissal of the complaint. 

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the vehicle purchased by him on 31.12.2009 from the Opposite Party is defective?

2. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

4.         In support of the complaint, Mr.P.A. Abdul Khader (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C6 were marked for the Complainant as listed in the annexure in detail.   One Mr.Fortunate Serrao (RW1), Sales Manager of the Opposite Party filed counter affidavit and answered the interrogatories served on him.  Ex R1 to R8 were marked on behalf of the Opposite Party as listed in the annexure in detail.   The Opposite Party filed written arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                       Point No.(i): Negative.

                       Point No.(ii) to (iv): As per the final order.  

Reasons

5.  Point No. (i) to (iv):

In the instant case, the facts which are admitted is that, the Complainant Sri.P.A. Abdul Khader purchased a new Mahindra Logan Diesel K9K PS DLX BS3 along with accessories and comprehensive Insurance from the Opposite Party by paying on road sale price of Rs.6,82,629/- (as per Ex C4).

The main dispute between the parties before this FORA is that, according to the Complainant the above said car was delivered on 31.12.2009 from the Opposite Party, on taking delivery of the vehicle the Complainant noticed the defect in RH Rear Door paint difference (paint was entirely different from other painting in the car and it looked very old), R.H. Rear Door Pad Sound and all the glasses of the vehicle are of 2007 and 2008 make even though the car sold stating that it was of 2009 make. The Complainant stated that, the above defects were brought to the notice of the Opposite Party at Puttur dealer one Mr.Warish Ali, who in turn advised the Complainant to consult Opposite Party.  According to the Complainant, the car sold by the Opposite Party is defective hence came up with this complaint and filed affidavit of evidence and produced documents Ex C1 to C6.

The Opposite Party denied the allegations made in the complaint and stated that there is no defect in the car.  It is further stated that, the Opposite Party has received the subject vehicle from the manufacturer company as per invoice cum delivery challan dated 19.02.2009, the above said vehicle was taken delivery by the Complainant as per the invoice dated 31.12.2009 and denied that he was given a vehicle of earlier model as against the 2009 model and filed affidavit of evidence and produced documents Ex R1 to R8.

On scrutiny of the oral as well as documentary evidence placed on record, we find that, admittedly the subject vehicle purchased and delivered on 31.12.2009 from the Opposite Party.  On scrutiny of the job card dated 15.02.2010 produced by the Complainant as well as the Opposite Party (i.e., Ex C5 and Ex R3) reveals that the subject vehicle is of 2009 model and had its pre-delivery inspection.  On 15.02.2010 the first service was done by that time the vehicle had covered 2127 kms.  The complaints given under the job card were attended by the Opposite Party.  Further, the subject vehicle was delivered back to the Complainant after getting his satisfaction report as found mentioned in the job card, wherein the signature of the customer could be seen at the bottom column of the job card.  Further we have perused the Ex R4 i.e., another original job card dated 15.03.2010 wherein it reveals that, the Complainant kept the vehicle for 2^nd free service on the above said day when the vehicle had covered 4260 kms.  It is significant to note that, it is seen from the job card that the alleged defects were not at all brought to the notice of the Opposite Party in this case.  Even the 2^nd complaint of the Complainant also duly attended and delivered back to the Complainant after getting a satisfaction report.  Further it is seen that, the Complainant visited the workshop of the Opposite Party in between the aforementioned two free services for getting certain minor jobs carried out, for which a separate job card was opened i.e., Ex R5 dated 22.05.2010.  From the above documents we observed that, the Complainant for the first time noticed the above alleged defects we could say the vehicle ran after 2,127 kms.  That means, there is a possibility of replacing the glasses as well as the door of the vehicle outside the authorized dealers cannot be ruled out.  Because the Complainant taken delivery of the subject vehicle after thorough checking and satisfying about the colour and condition of the vehicle before purchase. 

Apart from the above, the invoice dated 19.2.2009 issued by the manufacturer of the subject vehicle i.e. Mahindra Renault Private Limited in the name of the Opposite Party reveals that, the subject vehicle was delivered on 19.02.2009 to the dealer and the same has been purchased by the Complainant and taken delivery on 31.12.2009.  The above document reveals that, the subject vehicle is of 2009 model.  The model of the car cannot be tested on the dates printed in the glasses of the vehicle.  The model of the vehicle judged by seeing the make and manufacture numbers affixed on the engine and not on the glasses.  The Complainant having taken delivery of the subject vehicle after thorough checking and satisfying about the colour/condition of the vehicle, now he is precluded in complaining about the vehicle at this stage.  Apart from the above, there is no expert evidence produced before this FORA to prove the manufacturing defect or the model of the vehicle.

In view of the above discussion, we are of the considered opinion that the Complainant miserably failed to prove the defects in his car.  Hence the complaint has no merits, deserves to be dismissed.  No order as to costs.                                                                                                         

6.       In the result, we pass the following:                          

ORDER

            The complaint is dismissed.  No order as to costs. 

The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.

(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 11^th day of April 2011.)

          PRESIDENT                                             MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.P.A. Abdul Khader – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 02.03.2010: Legal notice sent to the Opposite Party on behalf of the Complainant.

Ex C2 –                  : Postal receipt.

Ex C3 –                  : Postal acknowledgement.

Ex C4 – 21.12.2009: Proforma Invoice for Rs.6,82,629/-.

Ex C5 – 15.02.2010: Job card.

Ex C6 – 30.12.2009: Xerox copy of the Demand Draft drawn on Vijaya Bank for Rs.6,82,629/-.

Witnesses examined on behalf of the Opposite Party:

RW1 – Mr.Fortunate Serrao, Sales Head in the Sales Department of the Opposite Party.

Documents produced on behalf of the Opposite Party:   

Ex R1 – 19.02.2009: Original invoice of manufacturing Company issued in favour of the Opposite Party.

Ex R2 – 26.10.2009: Original job card issued by the Opposite Party.

Ex R3 – 15.02.2010: Original job card issued by the Opposite Party.

Ex R4 – 15.03.2010: Original job card issued by the Opposite Party.

Ex R5 – 22.05.2010: Original job card issued by the Opposite Party.

Ex R6 – 31.12.2009: Copy of the invoice issued in favour of the Complainant for purchase of the subject vehicle.

Ex R7 – 31.12.2009: Delivery order form duly signed by the party for receiving the subject vehicle.

Ex R8 – 15.06.2010: Notarized copy of the General Power of attorney.

Dated:11.04.2011                                  PRESIDENT