BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.208 of 2017

Date of Instt. 05.07.2017

Date of Decision: 23.08.2017

Rohit Sharma, Prop. M/s Rohit Sharma Construction Co., 451, Gopal Nagar, Jalandhar.

..........Complainant Versus

1. Kosmo Vehicles Pvt. Ltd., Shree Ram Plaza, Opp. Adarsh Nagar Park, Mahavir Park, Jalandhar through its Branch Manager.

2. Garyson Motors Pvt. Ltd Sherpur Chowk, Ludhiana through its Mg. Director.

3. Tata Motors, Bombay House, 24, Harimodi Street, Ford, Mumbai 400001, through its Mg. Director/Authorized Signatory.

….… Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh, (President)

Sh.Parminder Sharma (Member)

Present: Sh. Rajiv Kohli, Adv Counsel for Complainant.

OP No.1 and 3 exparte.

Sh. Jaswinder Singh, Accountant on behalf of OP No.2.

Order

Karnail Singh (President)

1. This complaint received by way of Remand Back from the Hon'ble National Commission with the direction to decide the instant complaint afresh. In nutshell, this complaint was decided by this Forum, vide order 14.01.2013 and against that order, complainant Rohit Sharma prefereed an appeal before the State Commission, which was decided on 04.01.2016 and order of the District Forum was upheld and against that order, appeal was preferred by complainant Rohit Sharma and accordingly the Hon'ble National Commission remanded back the instant complaint with the direction to District Forum to take a final view in the complaint and further directed to the party to appear before the District Forum on 05.07.2017 and accordingly the counsel for the complainant as well as counsel for the OP No.2 appeared but neither the OP No.1 and 3 themselves appeared even for making a payment of cost of Rs.2500/-, imposed by the Hon'ble National Commission, a notice was also issued despite that OP No.1 and 3 did not bother to appear before this Forum and accordingly OP No.1 and 3 were proceeded against exparte.

2. Briefly the case of the complainant is that he purchased one TATA Indigo Dicor LXE-III Car from OP No.2 in the year 2008 and the OP No.3 is the manufacturer of the same and the OP No.1 is authorized dealer in Jalandhar, who is running the spare and service facility on behalf of OP No.3 and the complainant has the extended warranty of the said vehicle upto 2013. That from the very beginning, the vehicle in question was having manufacturing defect and was having various problems which was time to time reported to the OPs and the complainant regularly visited them for its repairs and services. From the very beginning, the vehicle in question became very hot in a very short drive. The temperature of the vehicle went upto peak level due to which, so many times, the vehicle was broken down on road during its drive and so many times, the complainant after arranging the crane and towing the vehicle, bring the vehicle into the service centre of OPs. Besides this, there was a problem in electronic points injectors and in mechanical parts also. There is also problem in the radiator in the staring rack, due to which there was a trouble in starting the vehicle, which called starting trouble. All this various problems create more problems in to the engine of the vehicle in question and the complainant was harassed too much by taking his vehicle again and again into the service centre of the OPs but these troubles were not cured at any stage.

3. That the service history of the vehicle is attached with the complaint, which shows numerous visits of the vehicle in question to the OPs for its repairs but the vehicle in question was not at any stage was perfectly repaired by the OPs because it was not repairable. The vehicle/car was having the trouble because this model was not perfectly tested before launching by the OP No.3, due to which they had discontinued this model, which shows that they were under the obligation to recall all the vehicles sold by them of the model in question. That the complainant is a consumer and the OPs are not fare and doing the unfair trade practice and while not delivering the perfect vehicle and then while not repairing the same in a perfect manner because it was not repairable, then by not exchanging the same or by not refunding the amount paid by the complainant at the time of purchase of the vehicle amounts to deficiency in service on the part of OPs.

4. That the complainant has paid his hard earned money i.e. Rs.6,19,000/- to the OP No.2 and thereafter spent Rs.50,000/- on its registration and Rs.20,000/- each year on insurance and Rs.50,000/- on its accessory and the complainant has suffered a great financial loss and mental agony, due to the harassment and humiliation given by the OPs for which the OPs are liable to pay the compensation and accordingly the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the basic price of the vehicle i.e. Rs.6,19,000/- and further OPs be directed to pay Rs.50,000/-, spent by the complainant for registration and be also directed to pay a sum of Rs.20,000/- each year for insurance of the said vehicle upto date and further be directed to OPs to pay Rs.50,000/- spent on accessory of the said car and also be directed to pay Rs.1,00,000/- approximately spent by the complainant on repair of the said vehicle and further be directed to pay Rs.1,00,000/- as compensation for harassment and be also directed to pay Rs.11,000/- as litigation expenses.

5. Notice of the complaint was given to the OPs but despite service, OP No.1 and 3 did not come present and ultimately OP No.1 and 3 were proceeded against exparte, whereas OP No.2 appeared through his counsel and filed reply, whereby contested the complaint by taking preliminary objections that the answering OP has been unnecessarily dragged into false and frivolous litigation and further alleged that there is no deficiency in service on the part of the answering OP. It is further alleged that no cause of action has ever arisen to the complainant to file the present complaint against the answering OP. The answering OP has merely sold the vehicle and thereafter the vehicle was never reported with the answering OP since its sale in 2008 except in June, 2009 for the purpose of accidental repair and for fourth free service. The vehicle was delivered after repair and to the full satisfaction of the complainant. No such alleged complaint was ever made with the answering OP. It is further alleged that without prejudice, it is submitted that the present complaint is time barred. The car in question was sold in the year 2008 and the present complaint is not maintainable after 4 years of the sale of the car and even this Forum has no jurisdiction to entertain and try the present complaint. On merits, the purchase of the car and bringing for service of the car is not denied but the remaining allegations are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.

6. Prior to proceeding exparte, OP No.1 also filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable in this Forum and further alleged that the complainant is not being covered under the definition of a Consumer as defined under the provisions of Consumer Protection Act and further submitted that the complainant is estopped by his own act and conduct to file the present complaint. It is further averred that the replying OP is neither deficient in service nor is guilty of any unfair trade practice. The present complaint has been filed by the complainant with the ulterior motive to harass the OP and further averred that the complainant is guilty of suppressing of truth because the vehicle in question had met with an accident five times but this fact has been deliberately concealed by the complainant and as such the vehicle was not covered under the warranty and remedy with the complainant is only to lodge a claim with the insurance company and further submitted that the complainant is not a consumer as he is carrying on the business under the name and style of M/s Rohit Sharma Construction company, which is a commercial venture and the vehicle is being used as such and even the complaint is time barred, hence the same is liable to be dismissed and further submitted that there is no manufacturing defect in the vehicle in question rather the vehicle of the complainant had met with an accidents five times. The vehicle of the complainant came to the workshop at 60955 KMs in an accidental conditions but the remaining allegations as made in the complainant are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

7. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit Ex.CA alongwith some documents Ex.C1 to Ex.C4 and closed the evidence.

8. On the other hand, counsel for the OP No.1 tendered into evidence affidavits Ex.OP-1/1 and Ex.OP-1/2 along with copies of documents Ex.OP-1/3 to Ex.OP-1/29 and closed the evidence. The Authorized Representative of the OP No.2 tendered into evidence affidavit Ex.OP-2/A and closed the evidence.

9. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

10. After hearing both the parties, we find that the factum in regard to purchase of the car by the complainant from OP No.2, in the year 2008 for an amount of Rs.6,19,000/- is not denied and even it is also not in dispute that the car of the complainant came to the workshop of the OP No.2 as well as OP No.1 time to time for service and service history i.e. Ex.C3 produced by the complainant is not denied rather the same service history is produced on the file by the OP No.1, which is Ex.OP1/3.

11. Now the plea taken by the OP is only that the complainant is not consumer as he is carrying on the business under the name and style of M/s Rohit Sharma Construction company, which is a commercial venture and the vehicle is being used as such. Therefore, complaint is not maintainable before the Consumer Forum being the same is used for commercial activity but we find that this factum has been already adjudicated by the Hon'ble National Commission in the order, whereby the complaint was remanded back. So, this argument of the OP is not sustainable.

12. So far the concern of the allegation of the OP that the complaint is time barred, regarding that we have gone through the case file as well as documents available on the file and find that the vehicle in question was parked in the service centre of the OP for repair in the year 2012, whereas the instant complaint filed on 14.01.2013, which is well within 2 years. Therefore, the complaint of the complainant is well within limitation.

13. Coming to the main controversy, whether according to the allegation of the complainant, the vehicle in question is having any manufacturing defect, for that purpose it is required to the complainant to produce on the file some expert evidence to prove the said inherent manufacturing defect but in order to establish the factum that there is a manufacturing defect, the complainant has brought on the file service record Ex.C3 and the same service record is produced on the file by the OP i.e. Ex.OP1/3, the said service record itself shows that whenever vehicle in question came to the service centre for service of the vehicle and what is the defect in the said vehicle. Here one thing is important to discus here whether the vehicle in question is within warranty or not, for that purpose the complainant in his complaint alleged that he purchased a vehicle in the year 2008 and further alleged that the extended warranty of the said vehicle is to 2013, but no document has been placed on the file by the complainant to prove the extended warranty upto 2013. So accordingly, we considered the original warranty and as per document placed on the file by the OP i.e. OP1/23, wherein the warranty period of the vehicle is mentioned 18 month from the date of sale. So, it means the warranty of the vehicle is upto 2009 or it may be upto June 2010 because the exact month of purchase in the year 2008 has not been mentioned by the complainant in the complaint. So, if we assess the period of 18 month from December 2008 even then the warranty is upto June 2010 that after June 2010, the complainant has to get services of the vehicle on payment basis.

14. Now coming to the basic question whether there is any manufacturing defect in the vehicle, admittedly one thing is concealed by the complainant that the vehicle of the complainant had met with an accident 5 times i.e. on 03.06.2009, when the vehicle has run a kilometer of 29527, then second accident on 30.07.2006, when vehicle run upto KM 55236 and then third accident occurred on 18.11.2010,when vehicle has run a km of 60955, then forth accident took place on 30.04.2011, when the vehicle has run a km of 71965 and then fifth accident happened on 10.02.2012, when the vehicle has run a km of 89468 and since 10.02.2012 the vehicle is parked in the service centre of the Kosmo Vehicles Pvt. Ltd. In order to analyze whether there is a manufacturing defect in the vehicle, we have no other documents because the complainant has not examined any engineer or expert/mechanic of the motor vehicle rather placed on the file a service history of the vehicle and first service of the vehicle was done on 30.04.2008, this is the first free service and nothing is recorded in the service history whether there is any defect in the engine or not, similarly in the second service dated 28.07.2008, nothing has mentioned in regard to a defect in the engine then next service was conducted on 06.09.2008, again there is nothing described in regard to defect in the engine. Similarly further more, the other services conducted on 06.01.2009, 03.06.2009, 10.07.2009, 23.11.2009, 11.05.2010, 11.06.2010, 30.07.2010, 10.08.2010, 18.11.2010, 21.11.2010, 21.12.2010, 26.01.2011, 29.01.2011, 19.02.2011, 18.03.2011, 23.04.2011, 26.04.2011, 30.04.2011, 17.06.2011, 01.09.2011, 10.09.2011, 12.10.2011, 23.11.2011, 30.11.2011, 02.12.2011 and then 10.02.2012, we have gone through the entire record and find that not on any occasion, at the time of service of the vehicle, the mechanic has mentioned the defect in the engine rather minor repair is conducted on each time, which is due to running of the vehicle and moreover, the vehicle of the complainant has completed the kilometers of 89418, when last vehicle was brought for service in the service centre of Kosmo Vehicles Pvt. Ltd on 10.02.2012 and the reason for bringing the vehicle is very much mentioned in the said report i.e. service type is accident. So, it means that the vehicle was brought, when it met with an accident and further we assess that when vehicle runs a kilometers of 89418 and so many services has been got done by the complainant from the service centre and service centre never mentioned any mechanical defect in the engine and after running too much kilometers, we cannot say that there is any manufacturing defect in the vehicle, moreover if there is any mechanical defect in the vehicle that can be alleged before the company or the service centre within a period of warranty but after four years from the date of purchase the vehicle, we cannot claim that there is any manufacturing defect in the vehicle. After parking the vehicle, when it met with an accident on 10.02.2012, the complainant did not turn back to get the delivery of the vehicle and even did not discuss the matter in regard to repair of the car with the service centre i.e. Kosmo Vehicle Pvt. Ltd and then Kosmo Vehicle Pvt. Ltd sent an email letter to the complainant, copy of the same is available on the file Ex.OP1/22.

15. Apart from that the service centre also wrote a letter to the complainant, which is brought on the file by the complainant himself i.e. Ex.C1, whereby sought a permission from the complainant to start the job of the vehicle. Further informed the complainant that if he failed to inform the service centre of his any decision then after one month, they will charge Rs.150/- per day as parking charges, this letter is dated 23.03.2012, but the complainant did not bother to give reply to this letter. So, under these circumstances, we find that it is not established on the file that there is any manufacturing defect in the vehicle and even there is any deficiency in service on the part of the OPs or unfair trade practice. So, under these circumstances, we do not find any force in the argument put forth by the learned counsel for the complainant and therefore the complaint of the complainant is dismissed with no order of cost. Parties will bear their own cost.

16. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

23.08.2017 Member President