DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.159 of 06-04-2010 Decided on 30-11-2010 Gurpreet Singh son of Sh. Jagdish Singh, aged about 45 years, resident of village Mahuana, Tehsil Malout, Distt. Muktsar. .......Complainant
Versus
Mahindtra & Mahindra Ltd., Gateway Building, Apollo Bunder, Mumbai-400039, through its M.D./Chairman. Imeprial Motors Pvt. Ltd., G.T.Road, Bathinda, through its Prop./Partner.
......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President. Dr. Phulinder Preet, Member. Sh. Amarjeet Paul, Member.
Present:- For the Complainant: Sh.M.S.Sidhu, counsel for the complainant. For Opposite parties: Sh.Sandeep Bhagla, counsel for opposite party No.1. Sh.S.M.Goyal, counsel for opposite party No.2. ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act'). In brief, the complainant has filed the present complaint with allegations against the opposite parties that he purchased Bolero Car having Sr.No.92F91124, Engine No.GA94F49272, Chassis No.92F91124 vide registration No. PB-03U-8686 from the opposite party No.2, manufactured by opposite party No.1 on 17.06.2009 who gave warranty of one year on the said car. The complainant alleged that from the very beginning of its purchase, the said vehicle was creating lot of troubles to the complainant. The defect appeared in the vehicle in question time and again and all the times, the complainant had to bring the said vehicle to opposite party No.2 who used to repair the vehicle in question and changed various parts of the car from time to time. The complainant got the said vehicle repaired from opposite party No.2 from time to time from 03.03.2007 to 06.03.2010 and spent huge amount as per details given below:- Invoice No. Date Amount 641 03.07.2009 Rs.5,598.00 886 10.08.2009 Rs.____ 73 19.09.2009 Rs.23,464.00 1390 02.11.2009 Rs.669.00 1447 11.11.2009 Rs.11,686.00 1879 09.01.2010 Rs.1,890.00 2261 02.03.2010 Rs.273.00 2300 06.03.2010 Rs.4,579.40 ___________ Total Rs.48,159.40 ___________ The opposite party No.2 every time gave assurance to the complainant that the same defect would not occur again and the complainant was unable to take the said vehicle to long routes. The complainant requested the opposite party No.2 to replace the said vehicle with new one as the vehicle was within warranty period but the opposite party No.2 has been putting the matter off under one of the other pretext after making lame excuses that in future, there will be no trouble in the vehicle in question. The complainant has filed this complaint for replacement of the vehicle with new one or to refund the amount which has been already spent by the complainant on repair of the aforesaid car besides compensation alongwith cost of litigation expenses. 2. The opposite parties have filed their separate written statements. The opposite party No.1 has taken legal objections that the complainant is not consumer of the opposite party No.1 as defined under Section 2(d) of the Consumer Protection Act. The contract of opposite party No.1 with opposite party No.2 is on principal to principal basis and the opposite party No.1 manufactures the products in bulk, which are sold to its various dealers and the dealers after purchasing the vehicles, re-sell the same to the customers. Hence, there is no privity of contract between the customers and opposite party No.1. In the present case also, there is no such privity of contract qua the complainant and opposite party No.1. The opposite party No.1 has further pleaded that in the present complaint, intricate and contentions questions of fact and law involved which require elaborate oral and voluminous documentary evidence and the same cannot be decided in summary procedures. The complainant has failed to comply with terms of warranty as he is using the vehicle for commercial purposes to generate profit as such, he is not consumer as defined under Section 2(d)(ii) of the Consumer Protection Act. The opposite party No.1 has further pleaded that the vehicle had already run more than 12,000 kms. and it has given the details of Invoices for the purposes of issuing of Invoices which is as under:- Invoice No. Date Amount Purpose 641 03.07.2009 Rs.5,598/- Cost of accessories as the vehicle had been modified by the complainant, thereby repudiating the warranty 886 10.08.2009 Rs........... No amount having been mentioned, the reply is kept reserved 73 19.09.2009 Rs.23,464/- Repair of the vehicle owing to accident 1390 02.11.2009 Rs.669/- Cost of head light and rear view mirror, not covered in the warranty 1447 11.11.2009 Rs.11,686/- Cost of repair of the vehicle due to accident 1879 09.01.2010 Rs.1,890/- Cost borne on the second service (parts not covered in the free service) 2261 02.03.2010 Rs.273/- As the vehicle had run 12407 Kms, the AC Belt had been replaced without service charges 2300 06.03.2010 Rs.4,579/40 Replacement of parts of normal wear and tear, which are not covered under warranty 3. The opposite party No.2 has pleaded in para No.3 on merit that the vehicle in question had never any problem to the complainant as alleged and there was no defect in the vehicle. The opposite party No.2 had denied that the complainant had ever brought the vehicle to get it repair. The complainant had himself admitted that the vehicle was purchased vide bill dated 07.06.2009 then how, he could had brought the vehicle to the opposite party No.2 on 03.03.2007. Vide Invoice No.641 dated 03.07.2009, the complainant got new accessories fitted from the opposite party No.2 and there was neither any defect in the vehicle nor any repair was done. Vide Invoice No.886 dated 10.08.2009, the complainant got checked the centre locking and AC which were found to be in working order and there was not any defect and no amount was charged from the complainant. On 19.09.2009, vide Invoice No.73, the vehicle was got repaired by the complainant as the same met with an accident and the complainant had wrongly mentioned that there was any defect. The complainant had also lodged a complaint regarding the said accident with United India Insurance Co. and obtained claim/reimbursement of Rs.14,100/- vide voucher dated 15.12.2009. Vide Invoice No.1390 dated 02.11.2009, the complainant himself and voluntarily got changed the tubes, headlight and right rear view mirror which cannot be alleged as defect in the vehicle, the items/said accessories were purchased and charged to the tune of Rs.669/-. On 11.11.2009 vide Invoice No.1447, the vehicle got repaired by the complainant as the same had again met with an accident. The complainant had also lodged a complaint regarding the said accident with United India Insurance Co. and obtained claim/reimbursement of Rs.4,830/- vide voucher dated 15.03.2010. On 09.01.2010 vide Invoice No.1879, the complainant got second free service and paid Rs.1,890/-. On 02.03.2010 vide Invoice No.2261, the complainant got new AC Belt fitted in the vehicle and paid Rs.273/-. The AC Belt is a rubber/Jute and there was no warranty of the same. This cannot be called manufacturing defect. On 06.03.2010 vide Invoice No.2300, the complainant paid Rs.4,579/- to the opposite party No.2 as he got suspension work done of the vehicle due to normal wear and tear of the vehicle which occur in the routine usages of the vehicle, which cannot be termed as manufacturing defect. The opposite party No.2 has further pleaded that as and when, the said vehicle was brought to the workshop of opposite party No.2, the requisite job was done by the well trained mechanics/engineers of the opposite party No.2 to the entire satisfaction of the complainant and the complainant after full satisfaction, took the delivery of the vehicle. The vehicle in question was repaired as the same met with an accident twice and once he brought the vehicle for routine wear and tear job. As there is no manufacturing defect in the vehicle, the complainant is not entitled to replacement of the vehicle. 4. Parties have led their evidence in support of their respective pleadings. 5. Arguments heard. Record alongwith written submissions submitted by the parties perused. 6. The learned counsel for the complainant has submitted that the complainant purchased Bolero car having Sr.No.92F91124, Engine No.GA94F49272, Chassis No.92F91124 vide registration No.PB-03U-8686 from the opposite party No.2, manufactured by opposite party No.1on 17.06.2009. the vehicle has been giving problem in it time and again since its purchase. The complainant had placed on file Invoice numbers from 03.03.2007 to 06.03.2010, through which, he has got his vehicle repaired from opposite party No.2. The complainant has mentioned that there is manufacturing defect in the vehicle as he had got repaired his vehicle many times. 7. The learned counsels for opposite parties have submitted that the invoices which have been placed on file by the complainant and record in para No.3 of the complaint is that either the vehicle was brought for inserting accessories or repair of headlight, rear view and mirror for accidents done by the complainant. The opposite party No.1 has pleaded that the complainant is not consumer to it as there is no privity of contract between the opposite party No.1 and the complainant. He is manufacturer who sells/supplies the vehicles to its dealers and who re-sell the vehicles to the customers. Hence, there is no privity of contract between the opposite party No.1 and the complainant. The relationship between opposite party Nos.1&2 is of principal to principal basis. The opposite party No.2 has submitted that the complainant is not their consumer as he is plying the vehicle for commercial purposes which is not covered under the definition of the 'Act' as defined under Section 2(d). The opposite parties have given the full details that why the complainant had brought the vehicle to the opposite parties and for what purpose and what work has been done. 8. A perusal of Ex.C-2 dated 03.07.2009 vide Invoice No.641 shows that the complainant had purchased Body Cover Full and Grab Handle which means that he had paid Rs.5,598/- as cost of accessories which are not included in the warranty. He had brought the vehicle again on 10.08.2009 and Job Sheet No.879 vide Invoice No.886 Ex.C-3 was issued to him. He had paid no consideration on this date. He brought his vehicle for getting it check for Centre Locking and AC. The complainant had brought his vehicle to opposite party No.2 again on 19.09.2009 vide Invoice No.73 Ex.C-4 and Ex.C-5 and paid Rs.23,464/- vide Job Sheet No.4088 for different repairs on account of accident. The vehicle was again brought to opposite party No.2 on 02.11.2009 and the complainant had paid Rs.669/- Ex.C-6 and got repaired the fitting, head light tube and rear view mirror of the vehicle. The vehicle was again brought to opposite party No.2 on 11.11.2009 for different repairs vide Invoice No.1447 and Job Sheet No.1415 and paid Rs.11,686/- on account of second accident Ex.C-7. The vehicle was again brought to opposite party No.2 on 09.01.2010 for different repairs and paid Rs.1,890/- Ex.C-8. The complainant brought the vehicle on 02.03.2010 vide Invoice No.2261 and Job Sheet No.2304 and paid Rs.273/- for AC check and AC Belt Ex.C-9. Again, he brought the vehicle to the opposite party No.2 on 06.03.2010 vide Invoice No.2300 and Job Sheet No.2338 and paid Rs.4,579/- Ex.C-10 and got replacement of parts due to wear and tear which were not covered under the warranty. 9. Sh. Devinder Kumar, Administration Manager and duly authorized signatory of M/s Imperial Associates (Motors) Ltd., Bathinda has deposed in his affidavit Ex.R-1 that the said vehicle had met with accidents three time. First of all, he got accident claim of Rs.14,100/- vide disbursement voucher dated 15.12.2009 from United India Insurance Co. and he got second insurance claim of Rs.4,830/- from United India Insurance Co. vide disbursement voucher dated 15.03.2010, which were paid to him as the vehicle was duly repaired to the entire satisfaction of the complainant by the opposite party No.2 and he had received these compensation amounts without any objection. The vehicle in question of the complainant had again met with an accident and he had lodged a claim with Insurance Company but there had arisen a dispute between the complainant and the said Insurance Company. Now, the complainant had filed the present complaint just to recover the said claim amount. Sh. Devinder Kumar further deposed in his affidavit that the complainant has not been able to pin point or mention any defect. The complainant had been using the vehicle in question recklessly and carelessly and had met with an accident thrice and after a long period, he is alleging the defect in the vehicle. The vehicle in question had been inspected many times by the surveyors for assessing the loss suffered by the vehicle in the aforesaid accidents but none of surveyor had ever pointed out any defect what to talk of alleged manufacturing defect in the vehicle. The parties are bound by terms and conditions of the agreement which had taken place at the time of purchase of the vehicle and the opposite parties had never undertaken to replace the vehicle with new one after such like accidents. 10. The counsels for the opposite parties have further submitted that the complainant had received Rs.14,100/- on 15.12.2009 vide Ex.R-5 as accidental claim. Thereafter, the complainant again had received Rs.4,830/- on 15.03.2010 as second accidental claim. 11. A perusal of record which has been placed on file shows that the complainant has been taking his vehicle to the opposite party No.2 either for servicing or for fitting of accessories. The accessories are not included in warranty. Some times, the complainant took his vehicle for fitting and repair of head light and rear view mirror, AC Belt and replacement of parts due to normal wear and tear to the opposite party No.2, meaning thereby, he has never complained about any manufacturing defect to the opposite party No.2. Moreover, he is regularly plying the vehicle on road. The complainant has also taken twice claims for accidents. The complainant has taken a support of precedent laid down by Hon'ble Union Territory Consumer Disputes Redressal Commission, Chandigarh in case titled Delhi Auto Mobiles Ltd. & Ors. Vs. Paramjit Batta, 1997(III) CPJ 138, and the precedent laid down by Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Mahindra & Mahindra Ltd. Vs. Vasantrao Dagaji Patil & Anr., 2002(III) CPJ (NC) 79. The case law referred in above mentioned two cases is not applicable in the case in hand as the facts and circumstances are different. Moreover, the complainant has not placed on file an expert evidence. The support can be sought by the precedent laid down by Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Scooter India Limited Vs. Manjulaben Kiritbhai & Ors. 2010(III) CPJ 235 (NC), wherein, it has been held that:- “Consumer Protection Act, 1986 – Sections 2(1)(f), 13, 21(b) – Motor Vehicles – Manufacturing defect – Vehicle under warranty, charged for repairs alleged – District Forum directed petitioner to replace vehicle or refund amount after deducting usage, with interest – Appeal dismissed – Hence revision – Complainant failed to discharge onus of proving manufacturing defect – No expert report produced – Manufacturer cannot be asked to replace vehicle unless manufacturing defect pointed out and proved – Complainant not able to show parts replaced and charged for were covered under warranty – Fora's order set aside.” Further, the support can be sought by the precedent laid down by Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Classic Automobiles Vs. Lila Nand Mishra & Ors. 2010(I) CPJ(NC)235, wherein, it has been held that:- “Consumer Protection Act, 1986 – Sections 2(1)(f), 2(1)(g), 13(1)(c) – Motor Vehicles – Manufacturing defects – Complaint allowed by Forum – Joint and several liability imposed on manufacturer and dealer – Manufacturer absolved in appeal – Entire liability fixed on dealer – Hence revision – Onus to prove manufacturing defect in vehicle – Alleged defects cannot be termed as manufacturing defect – Vehicle repeatedly brought to service station for repairs, no ground to hold that vehicle suffering from manufacturing defects – Manufacturing defects in vehicle not proved – Order of lower Fora set aside. (ii) Dealer – Liability – Manufacturing defect in vehicle – Dealer not liable unless shown that vehicle sold by manufacturer on principal to principal basis – Dealer being an intermediary between consumer and manufacturer – Liability for manufacturing defect to the fixed on manufacturer – Dealer not liable for it. (iii) Motor Vehicles – Unfair trade practice – Alleged, price of catalytic converter charged – Vehicle supplied without catalytic converter – Price of vehicle with or without catalytic converter same, proved – Unfair trade practice not proved.” 12. In view of what has been discussed above, this Forum is of the considered view that there is no deficiency in service on the part of the opposite parties. Hence, this complaint is dismissed without any order as to cost. Parties are left to bear their own costs. 13. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. '
Pronounced in open Forum (Vikramjit Kaur Soni) 30.11.2010 President
(Dr. Phulinder Preet) Member
(Amarjeet Paul) Member
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