Delhi

East Delhi

CC/1008/2014

REKHA - Complainant(s)

Versus

KHANDELWAL MOTORS - Opp.Party(s)

13 Sep 2017

ORDER

          DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT of Delhi

              CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092                  

 

                                                                                                   Consumer complaint no.     1008/2014

                                                                                                   Date of Institution               07/11/2014

                                                                                                   Order reserved on               13/09/2017        

                                                                                                   Date of Order                       15/09/2017                                                                                     

 

In matter of

Ms. Rekha, adult   

D/o- Sh Ram Kishan  

R/o – village  Kondli, Nr Durga Mandir   

Nirvan Mohalla, Vasundhara Enclave, Delhi 10096…………….….Complainant

                             

                                      Vs

 

1-M/s Khandelwal Motors

A-1, DSIDC Complex  

Kalyan Puri, Delhi 110091

 

2-Shankar Motors

E-6A, Jyoti Colony, 100 Ft Road,  

Shahdara Delhi 110032

 

3-Mohindra Two Wheelers Ltd.

Plot no. 18/2, D1 Block

MIDC, Chinchwad, Pune, 411019…………………………..….…………..Opponents

 

Quorum   Sh Sukhdev  Singh       President

                  Dr P N Tiwari                 Member

                                                                                                               

 

Order by Dr P N Tiwari  Member  

Brief Facts of the case                                                                                                 

Complainant, a practicing advocate, purchased Mahendra two wheeler KINE on 24/04/2014 vide delivery receipt no 734 from OP1 for a sum of Rs 38061/-(Ex.CW1/1, 1A and 2). The scooty was insured by Sri Ram General Insurance Co. Ltd from 25/04/2014 to 24/04/2015(Ex CW1/3).

The scooty was duly registered by transport department (Ex CW1/4) and the same vehicle was serviced twice also but the manufacturing defect could not be removed by OP2 and it was told by OP2 that the said vehicle required replacement, so complainant contacted OP1 for replacement, but neither replaced the vehicle nor rectified the defect. After seeing the callous behavior of OP1, complainant sent a legal notice (Ex CW1/8) for replacing vehicle or refund of a sum of Rs 38,061/-, but did not get any reply, so she filed this complaint and claimed replacement of vehicle to new one and compensation of Rs 2 Lakh. Complainant also wanted to file a case under section 499/500 IPC as OP had defamed and misbehaved.

 

After notices were served, OP3 (manufacturer) jointly submitted written statement on behalf of OP2 (authorised service centre) and denied all the allegations as wrong and incorrect. It was stated that complainant had filed vexatious and malicious complaint to abuse the process of law, so be dismissed. It was admitted that complainant had purchased the vehicle on 25/07/2014 and took first free service at 921 km and then at 2014 km running her vehicle. As per the record of service, routine checkups were done and minor problems were rectified free of cost as per job sheet details on record (Anne. A2) as the said vehicle was under warranty.

 

It was submitted that OP3 was a repute manufacturing unit of the said vehicle and their all manufactured vehicles carry one year standard warranty and if any defect occurs, their authorized service centre/OP2 provides services free of cost under warranty tenure. In this case, there was no manufacturing defect ever reported by OP2 and vehicle was running well on road without any trouble. As per job slip, complainant had taken two free services much beyond required running mileage. If any manufacturing defect would have been present since it was purchased, complainant could have not able to run the vehicle for 2014 KM up to her second free service. OP 1 and 3 had also annexed warranty policy as Anne. A3.

 

OP3  has also submitted citations pertaining to manufacturing defect by Hon. Supreme Court in 1-C N Anantharam vs Fiat India Ltd. & others, AIR 2011 SC 523 where it was held that –

“A defect which does not make the vehicle incapable of operation and can be rectified by replacing the said component cannot be termed as a manufacturing defect.”

2-In another citation from NCDRC in Sushila Automobiles Pvt Ltd vs Dr Birendra Narain Prasad & others, III (2010) CPJ 130 (NC), it was held that –

“To establish a claim for the total replacement or claim of total refund, complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile / mechanical engineer that the vehicle suffered from inherent manufacturing defect.     

 

3- Maruti Udyog Ltd. vs Susheel Kumar Gabgotra & others, (2006) 4 SCC 644 where it was laid down that –

“where defects in various parts of a car are established, direction for replacement of the car would not be justified and replacement of the entire item or replacement of the defective parts only was called for.”

OP stated that complainant had not even mentioned a single manufacturing defect in the said vehicle/scooty which could be seen in job sheets on record. More so, running vehicle for maximum kilometers without any defect proves, there was no manufacturing defect in her vehicle as neither any evidence nor expert report was on record. Hence, it was prayed for dismissal of complaint.  

OP1 had also submitted written statement and stated that they were the authorised seller of vehicle of OP3 and every vehicle was delivered after thorough checkup and fitness. Hence, there was manufacturing defect ever reported by the complainant or from service centre.

 

Complainant filed her rejoinder to all written statements and evidences on affidavit and affirmed on oath that manufacturing defect was neither rectified nor refund of the cost of her vehicle was made.  So, all her facts and evidences stated in her complaint were correct and true.    

OP1 filed their evidence on affidavit through Mr. Suresh Khandelwal, the manager cum owner and stated on oath that the said vehicle had no manufacturing defect and all the alleged problems were rectified during the warranty tenure up to two free services instead of three. Complainant had never come for any problem pertaining to defect with their authorized service station as OP2.

It was also stated by OP1 that complainant had not submitted any proof of manufacturing defect by any independent mechanical expert to show manufacturing defect in the said scooty. Hence, it was prayed for dismissal of this complaint.

 

OP3 submitted their evidences on affidavit through Mr. Viyendra Singh, working as Manager Legal with OP3 who affirmed on oath that the said vehicle was purchased from their authorised dealer as seller and was serviced twice free of cost as per warranty conditions (up to three free services). Till second free service availed by complainant, the vehicle had no defect. All the defects alleged by the complainant had been shown in their job cards and were removed accordingly. It was also stated that complainant had not put any substantial evidence to prove any manufacturing defect in vehicle. All the allegations alleged by the complainant were denied in their written statement with evidences which were on record. So this complaint had no merit and may be dismissed. 

Arguments were heard from both the parties and order was reserved.

We have also gone through three citations submitted referring to manufacturing defects as—

1-CN Ananthram vs Fiat India Ltd, AIR 2011SC523 decided on 24.11/2010,

2-Sushila Automobiles Pvt Ltd  vs Dr Birendra Narain Prasad, III(2010)CPJ130(NC) decided on 07/05/2010  and

3-Maruti Udhyog Ltd. vs Susheel Kumar & others, CA 3734/2000 decided on 29/03/2006. AIR2006SC1586.

Law has been laid down very clearly that manufacturer is liable to refund or replace the goods having established manufacturing defect. 

Thus after going all the facts of this case, we come to the conclusion that complainant has not ever mentioned any manufacturing defect with any concrete evidence as expert opinion of an automobile engineer or through authorised service centre of OP3. It was also seen that complainant had not submitted any defect even during pendency of her case before this Forum or she was not using her “defective” vehicle.  So, in absence of any evidence on record pertaining to manufacturing defect in her vehicle does not sustain. Hence alleging callous behavior of OP1 or sold defective vehicle does not arise. Also she has not availed third free service coupon provided by OP3 and up to second free service, her vehicle had run over two thousand kilometers. In such situation, OP1 or 3 are not liable to refund the cost of the said vehicle or replace with new one. There is no liability of OP2 and 3 pertaining to defective good manufactured or deficiency in services provided by OP2. This proves goods / scooty is defect free and no harassment or defamation element was present.

The complainant being a practicing advocate should had labeled allegations with concrete and substastantial evidences to prove manufacturing defect in the vehicle or deficiency in the services of OP2. Praying for instituting a case under IPC does not come in the jurisdiction of Forum. Thus, complainant has failed to prove deficiency or defect by single concrete evidence. That being so, this complaint deserves to be dismissed as it is without merit and dismissed without any cost to order.   

Copy of this order be sent to the parties as per the Act and file be consigned to Record Room.

 

(Dr) P N Tiwari  Member                                                                             Sukhdev Singh  President