FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application filed by the complainant U/s 35 of CP Act, 2019 read with section 34 (2) (b) of CP Act, 2019.
The fact of the case is in a nutshell is that the OP-1 is the authorized dealer of OP-2. OP-2 Tata Motors Ltd. is a leading manufacturer of passenger’s car.
The complainant have purchased a Tata Nexon XZ + Model from the showroom of the OP-2 for his personal use and also for day to day travelling in connection with his business having Reg. No. WB-17-AZ-0051.
The complainant purchased the subject vehicle as mentioned above on payment of Rs. 10, 23,829/- only by way of RTGS/NEFT transfer from his A/c with Central Bank of India, Paikpara branch within PS-Alipurduar. The balance of Rs. 2,00,000/- was adjusted by way of exchange against and old Tata Safari Car of the Complainant. The copy of all invoices and payment receipts are annexed as annexure-“1”.
The complainant further stated that he paid Rs. 46,135/- and Rs. 41,000 on account of Reg. charges and insurance premium receipts respectively to the OP-1. The copies of receipts and invoices are annexed as annexure-“B”.
It is further alleged by the complainant that immediately after delivery of the subject car some defects such as the infotainment system, car clock and other ancillary parts seen not be functioning properly and that was immediately intimated to the OP-1. The representative of the OP-1 informed the complainant that the subject car shall be replaced and /or rectified at the time of 1st free servicing by the authorized service center of the OP-1 at Kusum Nagar, Matigara Siliguri. but in time, no such replacement was made by the OP-1 during such first free services.
The complainant further stated in the petition of complaint that in the month of Feb, 2020, he again noticed further mechanical problems with regard of engine of the subject vehicle while driving on the high way and there was a break down in the certain stoppage of the engine. The complainant made contact with the OP-1 and sent the subject vehicle to the servicing centre of the OP-1 for necessary good care or replacement of defective parts of the subject vehicle informed the complainant that there was some issues with the injector which was duly fixed or rectified in the month of March, 2020. The problem recurred and the subject vehicle sent to the service center of the OP-1 and was returned with the assurance that the problem shall not be recurred. The copies of services and invoices are annexed as annexure-“C”.
The complainant further alleged in the month of Oct, 2020 when the complainant was travelling with his family members in Siliguri through the National Highway Nagrakata. The car lost its pickup and the complainant and his family members narrowly escaped from major accident while overtaking a truck but it was causing serious health problems to the complainant and his family members. On 2nd Nov, 2020, the complainant wrote a letter to the OP-1 for rectification and/or correction of such issues and defects of the subject car. The copy of letter dated 02 Nov, 2020 are annexed as annexure-“D”.
then 4th Nov, 2020 the complaint sent email in the customer care department to the OP-2 manufacturer of the subject vehicle and CEO and Managing Director, namely Mr. Guenter Butschek stating the incident for consequences redressal but the complainant utter dismayno satisfactory measures is taken by the OP.
He only received mechanical reply from the customer care department from the OP-2 on 05 Nov, 2020 which is annexed as annexure-“E”.
The complainant stated that from the conduct of the OP-2 deficiency in service on their part is established for which the complainant suffered financial loss which is assessed at Rs. 13,10,964/- then without having any other option, the complainant sent a legal notice to the OP-1 for redressal for his grievance dated 01.12.2020 is annexed as annexure- “F”.
The OP-1 did not reply that letter. Hence, the complainant compelled to file the case against the OPs with a prayer to give direction to the OPs to deliver a new car of the same model to the complainant and also prayed for giving direction to the OPs to make payment of Rs. 30,10,964/- along with interest @ 18 % p.a. from 30 July, 2019 till realization and also prayed for litigation cost of Rs. 2,00,000/- and ancillary cost of Rs. 50,000/- along with compensation of Rs. 15,00,000/-.
OP-1 from whom the complainant purchased the car did not appear in this case against the notice dated 13.11.2021 and did not file WV denying allegations as leveled against it. So, the case do run ex parte against the OP-1 vide order dated 20.01.2022.
The OP-2 has contested the case by filing a WV/Written statement denying all the material allegations leveled against them.
The OP-2 alleged that the complainant is not a consumer within the definition of CP Act, 2019 and the petition of complaint does not fall within the definition of” consumer dispute”.
It is also stated by the OP-2 that there is no deficiency in service on the part of the OP-2.
The OP-2 in its WV stated that as per complainant’s case, he proved the delivery of the subject car from the OP-1 M/s Lexican Motors on 30July, 2019 for his personal as well as daily use in connection with his business and after getting the delivery of the subject car, the complainant faced several problems with the car and the same was informed by him to the OP-1 to deliver at Matigara from where the necessary repair were carried out within the warranty period. Allegedly, on several occasions on and from Feb 2020 to Sept 2020, the complainant brought to the subject car to the OP-1, service centre of the OP-1 and got the repairing work but since then the complainant never brought the subject car to the service centre of the OP-1 for taking remaining free services and or regular check up under warranty but all on a sudden on 02.11.2020, the complainant brought the service car to the service centre of the OP-1 and filed this petition of complaint.
It is further case of the OP-1 that being the manufacturer of the subject car, they used to run the product in the open market after stringent quality check and road trials. Moreover, admittedly the complainant purchased the subject vehicle having Chassis No. MAT627162 KLF28590, engine No. 1.5 CRAIL01FEYW16335 and reg. No. WB-74AZ0051 from the authorized dealer of the OP-2 i.e. OP-1 on 30.07.2019 and the vehicle was registered before the ARTO Siliguri on 31.07.2019. So, in that during the warranty period, the OP-2 had no vital role in the sale transaction except of the fact that it is solely a manufacturer of the subject vehicle. All the entire sale transactions were under gone between the complainant and dealer of the OP-1. So, the question of deficiency in service against the OP-1 does not arise at all. Moreover, all through i.e. on 26.08.2019, 27.08.2019, 06.01.2020 and lastly on 09.09.2020 when the complainant brought the subject car service centre of the OP-1 with some complaint till then there was no issue of the defect in the engine of the subject car and since 09.09.2020, the subject car was not brought before any authorized service centre by the complainant,. So, there was no defect in the engine and without having expert report such allegation cannot stand.
As per OP-2, there was no deficiency in service on the part of the OP-2. So, question of giving compensation to the complainant by the OP-2 does not arise at all. Moreover, the petition of complaint as filed by the complainant is baseless without having any cause of action and the complainant filed the petition of complainant with malafide intention for wrongful gains. So, the complainant is liable to be dismissed.
In view of the fact and circumstances, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
On a close scrutiny of materials on record and on the basis of the evidence and argument as adduced by the parties to this case, we found that the complainant purchased the subject car bearing Police Reg. No. WB73AZ0051 from the OP-1 Lexican Motors on payment of Rs. 10,23,829/- on 30.07.2019 which is proved from annexure-A.
The money receipt issued by the OP-1 in favour of the complainant. It is alleged by the complainant that after purchasing the vehicle since he faced troubles during running of the car on road, brought the subject vehicle to the service centre of the OP-1 and get the repairing work during warranty period.
From such facts and circumstances of this case and also considering the position of law, it is revealed that this commission has got the jurisdiction to try this case and the complainant is a consumer whereas the OPs are the service provider.
After facing several issues in order to run the subject vehicle, the complainant raised objection and made complaint to the OP-1 and OP-2 and demanded replacement of the subject vehicle by a new one of the same model and also demanded compensation and litigation cost for deficiency in service and filed this case with sufficient cause of action within the period of limitation.
Now, let us see whether actually there was any deficiency in service on the part of the OPs.
On a close scrutiny of the materials on record, it appears that the complainant has purchased the subject vehicle on 30.07.2019 from the OP-1 on payment of the consideration money i.e. Rs. 10,23,829/-. The OP-1, is the authorized dealer of the OP-2. Admittedly, the OP-2 is the manufacturer of the Tata Motors. However, from the materials on record, it is revealed that till 09.09.2020, 3 to 4 occasions the complainant brought the subject vehicle to the service centre of the OP-1 and got free services and repairing work during warranty period but till then there was no issue of defect in the engine of the subject car.
From the evidence on record, it is proved that prior to said notice dated 02.11.2020 sent to the OP-2, the complainant never raised the question of defect in the engine of the subject car.
He never requested the OPs 1 and 2 to appoint an expert for examination of the subject vehicle, whether there was any error in the engine or not rather the complainant himself stated that there was a defect in the engine and he sent a letter to the OP-2 and demanded that engine is defective. So, the subject vehicle is requested to be replaced by a new one of the same model but in several cases, the Hon’ble Apex Court has discussed and observed in so many cases “The deficiency in service cannot be alleged without attributing fault, in perfection, sort coming or inadequacy in the quality, nature and manner of the performance which is required to be performed by a person in pursuance of a contract and otherwise in relation to any service.” In that case, the burden of proving but deficiency in service is upon the person who alleges. In the instant transaction, the complainant as on fact being found to have not established any willful fault in perfection, sort coming or inadequacy in service of the OPs.
Moreover, the whole sale transaction was performed in and between the complainant and the OP-1 the OP-2 i.e. manufacturer of the subject vehicle had no role in that effect. On the contrary, it is quite natural that a vehicle can be disturbed mechanically and in the instant case as and when the complainant brought the subject vehicle to the service centre of the OP-1. They cordially assist him and repair the vehicle.
The complainant got delivery of the vehicle in and every case on full satisfaction during warranty period and availed the free services without raising any question but all on a sudden that the complainant raised an issue that there was defect in the engine and demanded the replacement of the car by a new one till get the new vehicle and compensation but in the instant case the complainant failed to prove that there was any sort of negligence or deficiency in service on the part of the OPs, because no fruit full measure was taken by him to establish the fact that there was manufacturing defect in the subject vehicle during warranty period. No expert is there. So, in the instant case, this is unable to accept the argument of the Ld. Advocate for the complainant that there was manufacturing defects or deficiency in service on the part of the OPs without having any expert report. Under such circumstances, this commission is of view that the case is suffering from material evidences and lost its merit which ignited this Commission to hold the view that the complainant is failed to prove his case regarding deficiency in service on the part of the OPs and he is not entitled to get the compensation or any relief as prayed for.
Thus, the case is liable to be dismissed.
All the points of consideration are considered and decided accordingly.
The case is properly stamped.
Hence,
Ordered
that the case be and the same is dismissed on contest against the OPs without any cost.
Copy of the judgment be uploaded forthwith on the website of the commission for perusal.
