Consumer Complaint No.45 of 2014
Date of filing: 24.3.2014 Date of disposal: 06.9.2016
Complainant: Smriti Kona Roy, W/o. Ajit Kumar Roy, resident of 123, Dhokrashid, PO: Nutanganj, PS. & District: Burdwan, PIN – 713 102.
-V E R S U S-
Opposite Party: 1. Mahindra & Mahindra Automotice Division, Automotive Sector, Mahindra Towers, 3rd Floor, Akruli Road, Kandivali (East), Mumbai – 400 101.
2. Rudra Automart Pvt. Ltd., represented through its Director, having its office at Anjirbagan More, PO: Nutanganj, District: Burdwan, PIN – 713 102.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Saurav Kumar Mitra & Suvro Chakraborty.
Appeared for the Opposite Party No. 1: Ld. Advocate, S.Dutta & Pradyut Kumar Guha.
Appeared for the Opposite Party No. 2: Ld. Advocate, Subrata Ghosh..
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs neither replaced the vehicle nor refund the price of the vehicle to her.
The brief fact of the case of the Complainant is that being a house wife she purchased one Verito D4 BS4 vehicle from the OP-2 manufactured by the OP-1 for her personal use. After purchasing the said car as per requirement it was registered before the Registering Authority, M.V. Department, Burdwan. At the time of purchasing the said vehicle a credit note of Rs.14, 300=00 was paid to the OP-2 on 04.01.2012. Since its purchase there was a noise in the shock absorber and/or the wheel of the said vehicle which was brought in the notice of the workmen of the OP-2 at the time of free servicing as well as paid servicing the vehicle had to be sent to the workshop of the OP-2 for several times for the said defect. Since its purchase there were inherent defects and though assurance was given to her by the technician of the OP-2 the defects could not be rectified. The Complainant being a bonafide customer has been deprived from troubles use of the vehicle manufactured by the OP-1.The Complainant strongly believes that as there is severe manufacturing defect in the vehicle, the same could not be rectified by the technician of the OP-2. The OP-1 & 2 have supplied the vehicle having manufacturing defect. So the conduct of the OP-1 & 2 reveal deficiency in service and unfair trade practice and for this they are liable to replace the vehicle and to make payment of compensation to her. Therefore having no other alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OPs either to replace the vehicle or refund the price of the vehicle to the tune of Rs.6, 46,546=00, to pay compensation of Rs.50, 000=00 due to mental pain and harassment and litigation cost of Rs.50, 000=00 to her.
The petition of complaint has been contested by the OP-1 by filing written version contending that on 18.04.2012 the vehicle reported at the OP-2 after having run of 17,206 kilometers. As per the customer’s reporting both front door glass noise was attended by the OP-2. So the allegations as made out are nothing but sheer misrepresentation of facts and as such the OP-1 has strongly denied the same being baseless and fabricated. It is denied by the OP-1 that there is at all any manufacturing defect in the chassis as alleged by the Complainant which is beyond repair. The service record shows a track of mechanical services taken due to normal wear and tear due to normal and optimum usage of the subject vehicle and none of these shows a single item that may be categorized and/or classified as a manufacturing defect warranting replacement as claimed by the Complainant. The OP-1 has mentioned that it has never failed to discharge its responsibility as alleged, rather such allegations against the OP-1 is absolutely baseless. No lawful cause of action arose in favour of the Complainant for claiming replacement of the subject vehicle and/or any amount from the OP-1 whatsoever for harassment, mental agony, penalty interest etc. The OP-1 has further submitted that the Complainant has failed to prove her complaint against the OPs with necessary documents. The Complainant has merely made baseless allegations without material particulars. As this complaint is an example of abuse of process of law along with false, vexatious and malafide one, according to the Complainant the same is liable to be dismissed with exemplary cost.
The petition of complaint has been contested by the OP-2 by filing written version contending that as and when the Complainant came to this service centre of the OP-2 for obtaining free servicing, each and every time the OP-2 provided free servicing of the vehicle in proper manner and after servicing the Complainant took the delivery of the said vehicle from it with full and final satisfaction with the servicing of the OP-2. Similarly when the Complainant brought the vehicle to the workshop of the OP-2 with the problem of noise in the shock absorber and/or the wheel of the vehicle, the technician team of the OP-2 examined the vehicle and solved the problem and the Complainant received the delivery of the said vehicle with full and final satisfaction with the servicing of the OP-2. So it is very much clear that there is no deficiency in service and unfair trade practice on the part of the OP-2. It is further stated by the OP-2 that in the complaint no specific allegation has been made out by the Complainant against the OP-2 and hence this OP has been made a party unnecessarily with malafide and ill motive intention along with just to harass it. Therefore the complaint is not tenable in the eye of law and according to the OP-2 the complaint is liable to be dismissed with compensatory cost.
The Complainant has adduced evidence on affidavit along with several papers and documents in support of her contention, the OP-1 has filed BNA with a copy to the other side, the OPs have filed some documents in support of their respective cases, the Complainant has relied on some rulings. As per application submitted by the Complainant an expert was appointed to provide some reply to the questions as put forward to him by the Complainant, the Motor Vehicle Inspector (Technical), Burdwan has given his report/reply dated 19.02.2016, nobody has challenged the said report/reply, hence it is in force and in the report the expert has opined that the defect in vehicle is mechanical, not manufacturing defect.
We have carefully perused the record; papers and documents as submitted by the contesting parties and heard argument advanced by the Ld. Counsel for the parties at length. It is seen by us that there are some admitted facts in the case in hand i.e. the Complainant for her personal use purchased one Verito car from the OP-2 which is distributed and manufactured by the OP-1, there was some noise problem in the shock absorber and/or the wheel of the said vehicle which was brought to the notice of the workmen of the OP-2, the Complainant availed of free servicing as well as paid servicing of the said vehicle, on 18.04.2012 while the vehicle reported at OP-2 for its necessary servicing it was completed 17, 206 kilometer running, the OP-2 tried its best for discharging its responsibility, after servicing either free or paid whatever it may be, the Complainant took delivery of the said vehicle from the OP-2 with full and final satisfaction, no specific allegation has been made out against the OP-2 within the four corners of the complaint, the vehicle was covered under warranty and after lapse of warranty defect as alleged by the Complainant had cropped up. The allegation of the Complainant is that inspite of servicing the defects could not be rectified or removed as it a manufacturing defect. For this reason the Complainant has sought for replacement of the vehicle with a new defect free one or to refund the purchased price of the vehicle. The case of the OP-1 is that there is no manufacturing defect in the vehicle as the expert has opined that the defect is mechanical one, which depends on the road condition and usage of the vehicle. According to the OP-1 as there is no deficiency in service on its part the Complainant is not entitled to get any relief as prayed for and prayer is made for dismissal of the complaint. The contention of the OP-2 is that as and when the Complainant came for servicing either free or paid each and every time this OP provided servicing in proper manner and after servicing the Complainant took the delivery of the said vehicle from this OP with full and final satisfaction. It is further submitted by the OP-2 that when the Complainant brought the vehicle to its workshop with the problem of noise in shock absorber and/or the wheel of the vehicle, the technician team of the OP-2 examined the vehicle and solved the problem through servicing and the Complainant used to receive the vehicle with full and final satisfaction. According to the OP-2 as there is no deficiency in service, as well as, unfair trade practice on its behalf, the complaint is liable to be dismissed with cost.
We have noticed from the vehicle history as annexed by the Complainant along with her complaint that she visited the OP-2 for 14 times with some problems i.e. general check up, oil filter replacement, fan belt replacement, front suspension check, washing, shock absorber problem etc. and each and every occasion after replacement or repair the Complainant took delivery of the vehicle with full satisfaction. In the job card no where the Complainant mentioned her objection and/or dissatisfaction. It is seen by us that till 13.07.2013 the vehicle has completed its running as 99,971 kilometers. So if we take the allegation of the Complainant as true that the vehicle suffers from its manufacturing defects, then it could not complete above-mentioned kilometers within approximately one and half year. As the instant complaint is related with the defects in goods which cannot be adjudicated upon without any expert opinion, the Complainant by filing an application had sought for appointment of an expert from the Motor Vehicle Department, Burdwan wherein she put some questions to the ld. Expert i.e.
- Where there is noise or sound from the shock absorber and/or wheel of the vehicle bearing no-WB 42U/2697 or not?
- Whether the cause of such noise can be ascertained or not?
- Whether the defects, if any, then the same are manufacturing defect or mechanical defect?
The Ld. Expert was requested to reply the abovementioned questions.
Mr. Rathi Ranjan Gupta, Motor Vehicle Inspector (Technical) was appointed as an expert for submission a report after examining the vehicle. It is evident from the report dated 19.02.2016 of the Ld. Expert that ‘on 18.02.2016 the questioned vehicle was verified and mechanically examined on road testing and during inspection it was found that the vehicle has already been plied more than 2,00,000 kilometer and the vehicle was manufactured in the year 2011. The Ld. Expert has replied i.e.
- During plying on road, there is noise or sound from the shock absorber is coming out which is fitted in the suspension system of the above mentioned vehicle in question.
- During road testing and mechanical examination of the vehicle, the front shock absorber are not found functioning properly for which such noise are coming out in question of ascertained noise.
- The shock absorbers are not directly manufactured with the frame of chassis which are only fitted in the suspension system to absorb the shock of the vehicle in question.
It is mentioned in the expert’s opinion that ‘considering the manufactured year of the vehicle 2011 and plying on road more than 2,00,000 kilometers from the Technical point of view the frame Assay, as well as, chassis Assay has been corroded due to rain, sunlight & change of weather, after all frame Assay absorbed the Heat from running Engine.
But with help of mechanical examination it was found that shock absorbers are not functioning properly. Hence the defects are called mechanical defects in question, during the plying the vehicle on road and mechanical testing.’
As the Ld. Expert has not been cross-examined either by the Complainant or the OPs the report of the Ld. Expert is still in force and got its finality.
In view of the unchallenged expert opinion it can safely be said that the vehicle is not suffering from any manufacturing defect, rather the defect can be called as mechanical defects. It is the settled law that the manufacturer is not liable for any mechanical defect as it depends on some situation i.e. road condition, sun light, rain, change of weather etc as mentioned by the Ld. Expert. So there is no role and/or deficiency in service & unfair trade practice on behalf of the OP-1 being the manufacturer of the questioned vehicle as the defects are called as mechanical defects. In respect of the OP-2 we are of the view that it had extended its co-operation as and when the vehicle was brought by the Complainant to it as the technicians upon examination had repaired demanded repair and after necessary repair the Complainant took delivery of the vehicle from the OP-2 with full satisfaction. Therefore we do not find any deficiency in service as well as unfair trade practice of the OP-2. Moreover no such allegation has been made out by the Complainant against the OP-2 in the petition of complaint.
The Ld. Counsel for the Complainant has relied on two judgments passed by the Hon’ble NCDRC i.e. [2015] 4 CPR (NC) 805 & [2015] 4 CPR (NC) 877.
We have carefully gone through those judgments. The first judgment as relied on by the Complainant does not help the Complainant as the fact of that case is totally different from the case in hand because in the said case the vehicle carried a three year warranty and within a period of about two months of the purchase of the vehicle several defects cropped up and moreover the defect was detected as manufacturing defect. But in the instant complaint as per the petition of complaint defects cropped up after expiry of the warranty period and the defect has been detected as mechanical defect. The second ruling is also not applicable in the instant case as the fact of the relied case is not at all similar and identical with the instant complaint. In the said case defects cropped up in the alleged tractor within warranty period and for this reason during 17-18 months from the date of its purchase it had run only 1190 hours and during warranty period the Complainant had spent a sum of Rs.68,870=00. Moreover the technical expert has opined that the said tractor was suffering from its manufacturing defect. Therefore the rulings as filed by the Complainant have no applicability in the instant complaint. So in our view the complainant is not entitled to get any amount towards refund of the cost of the questioned vehicle or replacement of the said vehicle with a new one as there is no inherent manufacturing defect in the questioned vehicle. As the Complainant has failed to prove her case, hence the complaint fails.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is dismissed on contest, however considering the facts and circumstances of the complaint there is no order as to costs.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
