MR. PRABODHA KUMAR DASH, PRESIDENT:-
This C.C.Case No. 34/2020 taken up today for order. Perused the relevant documents as available on record. Heard both the parties.
Brief fact :-
Complainant resident of District Kendrapara purchased a Bolero Jeep bearing Regd. No. OD02AC7496 from OpNo.2 as authorized dealer of Op No.1 on 17/06/2016 on consideration amount of Rs. 7,80,788/-. The warranty period expired on 17.06.2018. During warranty period said vehicle detected with various defects on various parts & the same raised before Op No.2 (Devi Automobiles) & bills are annexed to complaint petition. After short period of expiry of warranty, the vehicle also developed various defects such as rusting, bubbling body damage. The above complaint was lodged before Ops by email which annexed. The OpNo.2 attended the complaint and removed some of mechanical defects without cost or free of charge but unable to remove the vital defects rusting & body damaged. As per the complainant the vital permanent defects are not removed by Op No.2 which was claimed as manufacturing defect. The OpNo.1 used sub standard quality of materials which caused total damage to body of the vehicle. Complainant being harassed by sent legal notice. Responding such notice the Ops refused to replace the vehicle so also refused to remove the defect which are inbuilt. Being aggrieved by the inaction, arbitrariness, illegality of Ops, the Complainant without having any alternative remedies filed present C.C.Case & prayed for cost of the vehicle, removing of defect or alternatively to replace the said vehicle with additional relief Rs. 1,00,000/- for mental agony & harassment & litigation cost with other relief deem fit & proper.
Following issues are framed for better adjudication of case in hand:-
- Whether Complainant is a consumer within C.P.Act ?
- Whether Complainant has locus standi against the Ops ?
- Whether present C.C.Case was filed within the prescribed limitation period ?
- Whether the vehicle in question has manufacturing defect?
- Whether the Ops are liable for defective product ?
- Whether the Complainant entitle to any relief sought for, if yes, to what extent ?
Issue No.1
Complainant being an unemployed person purchased the same by availing loan & engage the vehicle on rent and out of such profit maintaining his livelihood by means of self employment as per the languages in Sec 2(7) and explanation (a) of C.P.Act,2019.
Issue No.2
The vehicle concerned suffer from various defects as per the averment of complaint petition such defects are well within the ambit of Sec 2(10) which suffer from quality, potency, purity or standard which was not maintained by the OpNo.1 & Op No.2 is the trader or authorized dealer both are liable, therefore Complainant has locus standi against them.
Issue No.3
As we gone through the averments in the C.C.Case filed within the said 2 years of limitation period under C.P.Act 2019.
Issue No.4
The vehicle in question is a product under the languages of Sec 2(33) which is capable of delivery wholly with assembled various component part and traded through Op No.2. The vehicle caused various defect as body bubbling, body rusting, body damage are well within the language of Sec 2(10) of C.P.Act. The said vehicle is defective & so also have manufacture defect.
Issue No.5 & 6
The Op No.1 is liable under the meaning of Sec 2(36) as a product manufacturer as per the pleading of the complainant. Op No.1 makes the product, design before its sale. The Op No.2 authorized dealer from whom the Complainant purchased is the product seller who sells, placing such vehicle for commercial purpose. So also a service provider under Sec 2(37)(ii), both the Ops are liable for defective product as manufacturer and product seller. Further the Ops are liable for unfair contract by which the present consumer/complainant puts to disadvantages as per Sec 2(46)(VI). Further the Ops are liable under unfair trade practice under Sec 2(47) where they promoting the sale, supply goods which they falsely represents of a particular standard, quantity, quality, grade so also Sec 2(47)(g) where under the performance or length of life of a product is not based on an adequate test.
The Ops are liable under Sec-2(47)(viii) refusing, after selling goods or rendering service to take back or withdraw defective goods or to withdraw or discontinue deficient service and to refund the consideration within a period of 30 days.
Heard the Ld. Counsel for the Complainant & so also Ld. Counsel for the Ops. Perused the materials produced by both the parties.
It is submitted by the Complainant that, the defective vehicle produced before Op No.2 several times for free service & also paid service, body rusting which is inbuilt defect raised before Op No.2 so also before Op No.1 by sending e-mail, but the said defect could not be removed by the Ops. Further it is submitted that Op No.2 well acknowledged to Op No.1 because of expiring of warranty period, they are not liable to replace the body of the vehicle which is inbuilt defect. The Complainant suffered financial loss by attending several times before Op No.2’s workshop. On contrary, they demanded illegal gratification for exchange of defective vehicle.
Ld. Counsel for Ops contended that, the body rusting issue raised after warranty period & the same addressed by Op No.2 for free of charge as a good will of company & every time complainant vehicle was serviced as per the specification and no negligence occurred by OpNo.2, therefore Op No.2 not liable for defective vehicle which is inbuilt. In the meantime, the vehicle ran one lakh Km. & more than 5 years already has been passed they are not liable to remove the body parts.
Ld. Counsel for Complainant submitted that, the defective vehicle body as inbuilt (with the Engine chassis) and manufactured by OpNo.1. The Vehicle after purchased registered first for 15 years & further extendable after satisfaction of fitness by the R.T.O. The other vehicle like buses, trucks where the chassis sale by manufacture Company & the customer built it bodies in other places as suitable. The body of disputed vehicle causes rusting, decay after just 2 years, the Complainant can’t replace body which is expensive in his own cost when he has to pay loan installment every months. The Op No.1 did not respond to complain of petitioner so also the Op No.2 did some denting, panting which was poor quality by which the defect was not eradicated. The Complainant produced the vehicle voluntarily before this Commission & submitted photographs which clearly show as the body damage so also opinion of expert of body builder. We know manufacturing defect in quality, potency should be provided by cogent, credible & adequate evidence supported by opinion of an expert but body parts no need of any automobile or mechanical engineer opinion required for body rusting & damage well seen to naked eye of an ordinary prudent man. The submitted photos & on physical production before Commission expert opinion of body builder were sufficient to discharge his onus satisfactorily by the Complainant without reasonable doubt. The Complainant established his case without reasonable doubt that the vehicle suffering from inherent manufacturing defect which was inbuilt. Ld. Counsel further contended that, the said vehicle damaged whole body the roof of the vehicle developed various hole which inconvient to run in rainy season & the foot portions are already damaged due to rusting, all portions are vital as shown in photographs.
Ld. Counsel for Ops contended that, the Complainant using the vehicle as commercial purpose & not coming under C.P.Act. The said vehicle repaired due to accident & referred Sushila Automobiles Pvt. Ltd. Vs Dr Birendra Narain (2010) CPJ 130(NC). The Complainant bound to obey term of warranty and after expiry of warranty. The Ops are not liable more emphasis lead on the absence of expert opinion.
Ld. Counsel for the Ops not contradicted on issue of expert opinion as well as photographs submitted by Complainant, moreso this Commission considered view that, inbuild defect of the body of the vehicle well evident to the naked eye and no engineer’s certification necessary to remove the doubt which is not mechanical or any defect which needs opinion of any expert. The issue raised by the Ops are devoid of merit, not acceptable to this Commission & the cases which were referred by the Ops has no barring to the facts & circumstances of the present case.
Being 5 years has already been passed it is not reasonable to direct for replacement of vehicle but in our considered view it is appropriate for compensation is just & proper for end of justice.
O R D E R
It is hereby directed that, the Ops shall replace the damaged body parts at their own cost within one month from the date of receipt of this order or alternatively Rs. 1,50,000/- compensation be given to the Complainant by the Ops. Further it is directed that if the Ops detain the vehicle of the Complainant for more than seven(7) days during the exercise as directed, the Ops shall be liable to pay Rs. 1,000/- per day to the Complainant. The complaint case is allowed but no order as to cost.
Issue extract of the order to the parties for compliance.
Pronounced in the open Court, this the 30th day of August,2022.
I, agree.
Sd/- Sd/-
MEMBER PRESIDENT
