MS. NIPUR CHANDNA, MEMBER

ORDER

22.07.2024

1. The brief facts of the case are that on 14.06.2015, the complainant visited the showroom of OP2 and purchased the vehicle namely Mahindra XUV500 W10 FWD-R vide invoice dated 14.06.2015 by paying a sum of Rs. 14,99,577/-. He further paid a sum of Rs. 1,99,660/- against the debit note no. 248 dated 14.06.2015 and a sum of Rs. 51,000/- and Rs. 40,980/- against the bill dated 15.06.2015, as such complainant paid a total sum of Rs. 18,25,286/- to OP2 for purchase of the vehicle in question. The vehicle was registered in the category of private vehicle with registration no. DL-8C-AC-2777.
2. It is alleged by the complainant that within few months of the purchase of the said vehicle complainant started facing problems such as water drop leaking from the roof of the vehicle, random/abnormal behavior of the AC fan, malfunctioning of  the gears as well as driver seat adjustment switch etc. In the months of July, august 2015, the complainant reported the manufacturing defect in the vehicle to the OP to which the officials of the OP said that as the vehicle is new one some adjustments are quite obvious to be done after a considerable running of the vehicle and the defect reported are common in nature and would disappear automatically within one or two months of services.

3.  It is alleged by the complainant that the water leakage from the roof of the vehicle stop with the end of rainy season, however, other problems referred above continued. It is further alleged by the complainant that again with the beginning of the rain in June/July 2016 the problem of water leakage from the roof of the vehicle started and this time the said problem was of higher degree as the water so leak was entering in the electric fitting of the vehicle, the water drops were coming out from air bags and since the  vehicle is fully automatic any drop of water on the electrical fitting would cause short circuit resulting in the fire in the said vehicle causing life threat to the complainant and his family.

4. It is further alleged by the complainant that seeing such a life threatening issues with the vehicle and irresponsible attitude of the officials of the OP, complainant discontinued to use the vehicle and lodged the complaint on 16.08.2016 with the consumer affair vide complaint no. 1969. The complainant also sent email dated 18.08.2016 to the OP company narrating the entire life threatening defects in the vehicle with further request to refund the amount of the vehicle in question.

5. After receiving the email one Mr. Opinder of OP called the complainant and agreed to sort out the issues in the vehicle. He further informed the complainant to rectify the defects in the vehicle, the service engineer has to open various section of the body of the vehicle for which complainant denied and again requested to refund the cost of the vehicle in question.

6. On 03.09.2016, the OP visited the residents of the complainant and acknowledge vide email dated 08.09.2016 the manufacturing defect in the vehicle in question. In the 3^rd week of September, 2016 the OP picked up the vehicle  from the residence of the complainant and returned the same on the very next day stating that the entire defects has been removed. It is further alleged in the complaint that in the Months of February, 2017 he was driving the vehicle on highway and noticed that the vehicle gave random alarm of engine failure and as such complainant took the vehicle to OP2 where the engineers inspected the vehicle and suggested that due to lose wiring the vehicle may be given alarm of engine failure.

7. It is further alleged that with the onset of the rain in the year 2017, the same problem of water leakage  from the roof and airbags appeared. The complainant sent an email dated 13.08.2017 thereby informing it in respect to the entire life threatening defects in the vehicle with further request to refund the amount of the vehicle in question but at this juncture the OP remained silent on the issue. They have neither respond to the emails nor had rectified the defect , being aggrieved by the deficient services of the OPs complainant approached this commission for redressal of his grievance.

8. Notice of the complaint was sent to OPs. Despite opportunity OP2 failed to file its written statement as such its right stands closed on 05.06.2018. OP1 filed its written statement wherein it denied any deficiency in service on its part. It is further stated that the relationship between OP1 & 2 is on principle to principle basis only and OP1 cannot be reliable for any deficiency in service on the part of OP2. It is further stated that the entire complaint is silent in respect to the manufacturing defect in the vehicle. Moreover, no request has been made by the complainant to bring any expert evidence on record as such the present complaint is not maintainable and is liable to be dismissed. It is further stated that complainant has alleged various unsubstantiated defects in the vehicle whereas no job card has been filed by the complainant to support its contention. In all the visits to the service centre dated 25.05.2017, 11.03.2017,31.01.2017, 22.12.2016, 10.10.2016, 29.07.2016, 01.05.2016 and 13.02.2016 no such complaint of alleged manufacturing defect has been made by complainant. The vehicle history clearly established that no issue of water leakage from the sunroof was reported during first three services by the complainant. The issue of leakage from the sunroof was pointed out by the complainant only on 16.09.2016 and the said problem was resolved on the same date and thereafter there was no such problem in the car. It is further stated that in the present complaint, complainant failed to established the alleged manufacturing defect in the vehicle in question by way of any expert evidence as such the present complaint be dismissed with cost having no merits.

9. Rejoinder to the WS of OP2 filed thereby simply denying the averments made in the written statement.

10.  Complainant filed his evidence by way of affidavit wherein he has corroborated the contents of his complaint. Sh. A. Vishwanath AR of the OP1 Company filed evidence by way of affidavit on behalf of OP and has placed on record the copy of the job sheets in support of his contention.

11. Both complainant and OP1 filed written arguments. We have heard the arguments advance at the bar by Ld. Counsel for complainant Sh. Anupam Dwivedi as well as Sh. Pradeep Chaudhary counsel for OP2 along with AR Sh. S.K. Goel. Despite opportunity OP1 failed to address the arguments. We have perused the record.

12. During the course of argument it is submitted on behalf of complainant that as per the prayer clause he had prayed for the replacement of the vehicle with a new one or refund of the cost of the vehicle in question besides other relief. It is further argued that on 30.09.2016 the OP visited the residence of the complainant and carried out the inspection of the vehicle in question and the acknowledge and admitted vide email dated 08.09.2016 that the vehicle was having serious manufacturing defect but no steps were taken by the OPs to resolve the issue and in a compelling situation complainant approached this commission. It is further argued that in the light of the admission of the OP in respect to the manufacturing defect in vehicle in question complainant is entitle for relief claim.

13. The ld. Counsel for OP2 argued that the complainant failed to establish the case of manufacturing defect in the vehicle in question. The complainant has not placed on record the expert opinion report to establish his contention of manufacturing defect as alleged in the complaint. It is further prayed that the present complaint be dismissed with cost qua OP2 being frivolous one.

14. We have carefully gone through the record and found that admittedly the vehicle in question was purchased on 14.06.2015. The complainant has placed on record copy of emails dated 16.08.2016 and thereafter on 18.08.2016, 19.08.2016, 22.08.2016, 24.08.2016 wherein he has pointed out the defects in the vehicle to OP1. He has also placed on record the copy of email dated  08.09.2016 sent by Ms. Vridi J.S G.M after sale service of OP1 company wherein the OP1 has noted down the various defects pointed out by the complainant and has requested the complainant to advise a suitable date and time to get the vehicle picked up.

15. The bare perusal of the email dated 08.09.2016 of the service centre of OP1 established that by taking the cognizance of the complaint made by the complainant the service centre  carried out the inspection work prepared the list of the defects pointed by the complainant and further requested the complainant to inform the suitable date and times to get the vehicle picked up for investigating the issues in it but despite receiving the emails the complainant never deposited the vehicle in question for carrying out the investigation as well as the necessary repairing work in it. Instead of visiting the service centre the complainant approached this Commission and leveled the allegation of manufacturing defect in the vehicle in question that too without placing on record any expert opinion in respect to the same. The complainant has also failed to place on record the job invoices issued by the service centre of OP1 time to time in respect to the service of the vehicle in question. This shows that the complainant has not approached this Commission with clean hand and has concealed the necessary services carried out by OP in respect to the vehicle in question.

16. On the contrary counsel for OP1 has placed on record the copies of the job sheets clearly mentioning the repairing and the service carried out in respect to the vehicle in question.

17.  Admittedly, the complainant had repeatedly alleged in his complaint that the vehicle in question is suffering from manufacturing defect, hence he is entitled for the relief claim. The complainant had failed to place on record the job sheet as well as any expert opinion to substantiate the allegation of manufacturing defects in the vehicle in question.

18. As per the  judgment of Hon’ble Supreme Court titled as SGS India Ltd. Vs Dolphin International Ltd. in Civil appeal No. 5759 of 2009 decided on 06.10.2021;

The onus of proof of deficiency in serviceis on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a judgment of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines, this court held that the burden of proving the deficiency in service is upon the person who alleged it.

“6. The deficiency in service cannot be alleged without attributing fault, imperfection, short coming or inadequacy in the quality nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. ……”

In the present complaint case OP1 has placed on record the copy of the service job sheets. The job sheets placed on record clearly established that the vehicle in question visited to the service centre of OP1 for regular service and the same has been duly serviced by OP1 as per the terms and condition.

19. To resolve this issue, we deem it appropriate to refer to “Classic Automobiles Vs. Lila Nand Mishra” as reported in I [2010] CPJ CC. NO.371/2013 D.O.D.: 08.08.2023 M/S AVIAXPERT PVT. LTD. VS. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. & ORS. 235 (NC), wherein, the Hon’ble National Commission while dealing with the similar case has hold as under: “The onus to prove that there was manufacturing defect was on complainant/respondent No.1. We agree with the contentions raised by the learned counsel for the petitioner that complainant/respondent No. 1 failed to prove that there was any manufacturing defect by producing any cogent evidence. Complainant failed to produce expert evidence as provided under Section 13(1)(c) of the Consumer Protection Act, 1986.”

20. Further, under catena of judgments namely “EID Parry Vs. Baby Benjamin-I [1992] CPJ 279, Tata Motors Vs. Sunil Bhasin – III [2008] CPJ 111, Chandreshwar Vs. Telco- I [2007] CPJ 2, Diamond Cement Vs. Rai Prexim India Pvt. Ltd. I [2003] CPJ 1 and Lovely Vs. Harmesh Lal – I [2007] CPJ 312.” on similar issues, the Hon’ble National Commission has held that expert opinion is a condition precedent for establishing manufacturing defect.

From the aforesaid holdings of the Hon‟ble National Commission, it is clear that firstly the onus of proof is upon the Complainant/purchaser to prove that the purchased vehicle was suffered from manufacturing defect. However, in the present case, no expert opinion or evidence has been filed by the Complainant to prove that the said car was having manufacturing defect since its purchase in the year 2015. Therefore, devoid of any evidence, we are not convinced with the fact that the said car suffered from any manufacturing defect. Consequently, the Opposite Party No.1 & 2 are not deficient in providing its services to the Complainant.

21. In view of the above discussion we are of the considered view that the present complaint case is devoid of merits, hence dismissed.

File be consigned to record room.

22. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry. Order be uploaded on www.confonet.nic.in.

Announced in open Commission on   22.07.2023.

Sanjay Kumar                       Nipur Chandna                               Rajesh       

President                                     Member                                       Member