CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/297/2012
No. DF/ Central/ Date
Sh. Gopal nath
S/o Sh. Brij Nath
R/o 844, DDA Tenaments,
Vishal Enclave, Rajouri Garden,
New Delhi-110027. …..COMPLAINANT
VERSUS
M/s Magic Auto Pvt. Ltd.
Authorized Dealer of
Maruti Suzuki India Ltd.
7/56, Desh Bandhu Gupta Road,
Karol Bagh, New Delhi-110005.
The Regional Manager/MD
Head Office
Maruti Suzuki India Ltd.
Nelson Mandela Road,
Vasant Kunj, New Delhi-110070. …..OPPOSITE PARTIES
Quorum : Ms. Rekha Rani, President
Ms. Manju Bala Sharma, Member
Dr. R.C. Meena, Member
ORDER
Ms. Rekha Rani, President
- Instant complaint has been filed by Sh. Gopal Nath (in short the complainant) under Section 12 of the Consumer Protection Act, 1986 as amended inter-alia pleading therein that he purchased Maruti ECCO 5 Star AC (Radio Taxi) (in short the vehicle) vide performa invoice no. 818 dated 12.06.2011. The vehicle had manufacturing defect from the very first day of purchase. It was consuming engine oil at very high speed, the front doors were not locking and AC was not cooling properly. On 17.08.2011, the complainant approached OP1 and complained about these defects in the vehicle. The vehicle was inspected and employees of OP assured that there will be no complaint in future. Again on 31.08.2011, the same problems occurred. Complainant again approached OP1 but OP1 did not even inspect the vehicle. On 07.10.2011 complainant again complained to OP1 regarding the problems faced by him in the vehicle but faults in the vehicle were not removed by OP1. Complainant made various complaints dated 10.11.2011, 28.11.2011, 08.12.2011, 24.01.2012, 29.01.2012 in this regard but in vain. OP did not carry out necessary repairs when the vehicle was taken to the workshop on 05.04.2012, 09.06.2012, 09.07.2012.
Complainant felt cheated by OP1. Then he made complaint to OP2 about the defects and requested to replace the vehicle with a new one or refund the cost of the vehicle but the OP did not pay any heed to it. Hence the instant complaint was filed seeking direction to the OPs to replace the vehicle with brand new one or refund the cost of vehicle i.e. Rs. 4,02,457/- along with interest @ 24% per annum, Rs. 50,000/- compensation for causing mental agony and Rs. 30,000/- towards litigation expenses.
- On receipt of notice, OPs appeared and contested the claim vide separate replies.
- OP1 vide its reply submitted that complaint is not maintainable as the complainant is not a consumer. The vehicle in question is a radio taxi which is being plied by the complainant for commercial purposes. It is denied that the vehicle suffered from any manufacturing defects or that it was consuming engine oil at a high speed or that the doors were not locking properly. It is submitted that the vehicle is still in possession of the complainant and he is using the same smoothly. Further it is stated that as per the vehicle history, the vehicle has covered 29,361 kms. up to 31.05.2013 which does not support the allegations of the complainant that the vehicle has manufacturing defect. It is also stated that on 31.08.2011 the vehicle was brought for its first free service. General checking was done and some minor problems were rectified. It is further stated that on 07.10.2011, the vehicle was brought for oil level checking which was rectified and door hard and noisy and the same was rectified and repaired to the satisfaction of the complainant against his signatures on the job card dated 07.10.2011. It is also stated that engine oil was checked and found OK. It is further submitted that on 28.11.2011, the vehicle was brought for second free service after the mileage of 5885Kms. and the service was done to the satisfaction of the complainant who signed the job card dated 28.11.2011 and the recommendations were wheel alignment & balancing and r/h side tail light broken which was needed to be rectified but the consumer refused to have the same done. It is also stated that the vehicle was brought to the workshop on 05.04.2012 for third free service at the mileage of 15787 kms. for general checkup, oil consumption and r/h side door gola rubber and check automatically convert CNG to petrol. The job was done to the satisfaction of the complainant. The complainant was advised to have engine oil replaced but the complainant refused.
- OP2 filed a separate reply. It is pleaded that complainant is not a consumer as he is using a Yellow Plate Commercial-Radio Taxi(fleet of Taxi Operator) for business purposes. It is stated that the complainant got external local CNG kit fitted in the vehicle which is in violation of clause A(e), (g), (h) & (j) of warranty policy and therefore warranty obligations of OP2 stood forfeited.
- We have heard Ms. Babita, proxy counsel for complainant and Sh. Shivnath Kumar, counsel for OP1. Parties have filed evidence by way of affidavits. They have also filed written arguments.
- Both the OPs have raised an objection that complainant is not a consumer as he is using the vehicle for commercial purposes. Complainant in Para 2 of the complaint has submitted that he himself is the driver of the vehicle by profession and with a view to earn livelihood he purchased the vehicle. In Para 3 of the complaint it is stated that he is driving the vehicle himself. OPs have not been able to place anything on record to rebut the case of the complainant that he purchased the taxi for the purpose of earning his livelihood by way of self employment as he himself is driving the same and is a consumer.
Now coming to the case of the complainant that the vehicle suffered from manufacturing defects and the same needed to be replaced with a brand new vehicle or the cost of the vehicle to be refunded. It may be noted that both the OPs have vehemently denied that the vehicle had any manufacturing defects. It is not in dispute that the vehicle originally did not have CNG kit. The same was fitted later on by the complainant which fact goes against the complainant.
It is also not in dispute that OP1 had provided vehicle servicing and rectification of certain defects/problems in the vehicle at negligible cost or free of cost. Job card dated 17.08.2011 indicates that the vehicle was brought for general checkup which was done and it is duly signed by the complainant. In this job card no defect in the vehicle as alleged by the complainant in the nature of excess oil consumption, AC not cooling or front doors not locking is mentioned. Job card dated 31.08.2011 indicates that vehicle was brought for first free service and work was done in the nature of “clip front door trim, clip, screen wash cocentrate(50ml sachet, consumable” at the cost of Rs. 87/- and it was indicated that “RHS tail light broken”. Job card dated 24.09.2011 indicates that work in the nature of door adjustment was done on the cost of Rs. 56/-. Job card dated 07.10.2011 indicates that the vehicle was brought for general checkup which was done at no cost. Job card dated 10.11.2011 indicates that engine oil was checked and found OK. Second free service was done on 28.11.2011. It was indicated that wheel alignment and balancing was required which the customer refused. It was also indicated that “r/h side tail light broken, CNG outside fitted, engine oil consumption check as per M.S.I.L. specification, oil quantity found 4.2”. The same was signed by the customer/complainant. Job card dated 28.12.2011 indicates that general checkup of the vehicle was done and the card is signed by the customer. Job card dated 05.04.2012 indicates that the vehicle was brought for third free service. It was recommended that the engine oil needed to be replaced but the customer/complainant refused. Job card dated 09.07.2012 indicates that AC was checked which needed service but the same was refused by the complainant.
In Para 3 of the reply OP1 submitted that as per vehicle history, the vehicle had covered mileage of 29,361 kms. up to 31.05.2013 which falsifies that the vehicle had any manufacturing defect. The complainant has not denied the said submission in corresponding Para 3 of his replication.
It is submitted by OP1 in Para 4 of its reply that the vehicle came to the workshop on 17.08.2011 for starting problem and the same was repaired to the satisfaction of the complainant as per job card dated 17.08.2011. The same is not denied by the complainant in corresponding Para 4 of his replication.
It is submitted by OP1 in Para 5 of its reply that on 31.08.2011 the vehicle was brought for first free service and a general checking was done along with some minor problems not amounting to manufacturing defects. The same is no denied by the complainant in corresponding Para 5 of his replication.
In Para 6 of the reply, OP1 stated that on 07.10.2011 the vehicle was brought for oil level checking and the same was rectified under his signatures dated 07.10.2011. It is further stated that engine oil was checked and found OK. The same is not disputed by the complainant in corresponding Para 6 of his replication.
Similar submissions are made in Para 7 of the reply of OP1 when the vehicle was brought for second free service after a mileage of 5885 kms., the job was done to the satisfaction of the complainant as he signed the job card dated 28.11.2011. It is also stated that job card recommended wheel alignment and balancing which the customer/complainant refused. The same is not denied in corresponding Para 7 of the replication.
In Raj Kumar vs. Rana Communication & Anr. FA/08/2018 before H.P. State Consumer Disputes Redressal Commission Shimla, the complainant had alleged manufacturing defects in the mobile handset. The complaint was allowed by the District Forum vide which OP was directed to repair the mobile handset free of cost within 30 days and to pay a compensation of Rs. 2,000/-. In appeal before State Commission, an issue was raised whether report of expert is essential to prove manufacturing defect. State Commission, vide its order dated 04.04.2019 observed that:
“It is well settled law that manufacturing defect should be proved by way of affidavit of expert. Complainant did not file any affidavit of expert on record in order to prove that there was manufacturing defect in mobile handset. Sole affidavit of complainant is not sufficient to hold that there was manufacturing defect in the mobile handset because complainant is not expert. No reasons assigned by complainant as to why complainant did not file any affidavit of expert in order to prove that there was manufacturing defect in mobile handset in question. See 2017(1) CPR 643 NC Bhagwan Singh Shekhawat Versus M/s. R.K. Photostate & Communication & Ors. See 2017(3) CPR 35 NC Mahender Kumar Versus Hero Honda Motors Ltd. & Anr.”
In view of the material place on record and as discussed above, the complainant has failed to show that the vehicle had any manufacturing defects. Accordingly, he is not entitled to either replacement of the vehicle or refund of the cost of the vehicle. The complaint is accordingly dismissed. Copy of this order be sent to the complainant as per rules. File be consigned to record room.
Announced thisday of2019.
