STATE CONSUMER DISPUTE REDRESSAL COMMISSION
BIHAR, PATNA
Appeal No. 186 of 2016
1. Suman Kumar Singh, Customer Relation Manager,
2. Amit Chakraborti, General Manager,
3. Nirbhay, Workshop Manager, All are R/o- Shankar Motors Pvt. Ltd. Damka N.H. 31, Kishanganj Road, Gulabbagh, Purnea
4. Shankar Motors Pvt. Ltd. Showroom Bhagalpur, Near Engineering College, District- Bhagalpur
… Appellants /Opposite Parties
Versus
1. Manish Kumar Thakur, Son of Murli Manohar Thakur, Resident of Village- Sonarpatti, Raniganj, PO- Meriganj, PS- Raniganj, District- Araria, Pin-854334
…. Complainant/Respondent, I-Set
2. Tata Motors, Marketing and Customer Support, Passenger Car Business Unit one Forbes 5th Floor, Dr. V.B. Gandhi Marg, Fort- Mumbai- 400023
3. Tata Motors Finance Limited Mumbai, Plot C-1, Industrial Area, Patliputra, Patna- 800013
4. Managing Director, Tata Motors Finance Limited, Registered Office, Nanavati Mahalya, 3rd Floor, 18 Homi Modi Street, Mumbai- 400001
5. Head Office, Tata Motors Finance Limited, Akruti SMAC 3rd Floor, Kono Pal Junction, L.B.S. Marg, Thane West, Pin- 400602
…. Opposite Parties/Respondents-II-Set
6. Chief Manager, ICICI Lombard Motor Insurance, Zenith House, Keshva Rao Khad Marg, Mahalaxmi, Mumbai, Pin-
…. Opposite Parties/Respondent-III-Set
Counsel for appellant: Adv. Prashant Kumar, Adv. Satish Narayan Sinha & Adv. Anjani Kumar
Counsel for respondent no. 1: Adv. S.K. Dubey
Counsel for the respondent no. 2,3,4 & 5- Adv. Anil Kumar
Counsel for the respondent no. 6- Adv. R.C. Narayan
Dated 01.02.2023
As per Sanjay Kumar, President.
O r d e r
Present appeal has been filed on behalf Appellant/Opposite party no. 1 to 4 for setting aside the judgment and order dated 16.04.2016 passed by the District Consumer Forum, Araria in Complaint Case no. 10 of 2013 whereby and whereunder the learned District Consumer Forum has directed the appellant to pay Rs. 9,00,000/- as cost of vehicle along with repairing cost and Rs. 1,00,000/- as compensation for physical and mental harassment and Rs. 5,000/ as cost of litigation to be paid within 3 months failing which they will be liable to pay interest rate @9%. p.a.
Briefly stated the facts of the case is that complainant had purchased Indica Vista from the appellant for which loan of Rs. 2,45,000/- was provided by O.P. no. 3,4 & 5 and rest amount of Rs. 2,56,750/- was paid by the complainant in cash as down payment. The total cost of the purchased car comes to Rs. 4,95,250/-. Registration number of vehicle as BR-11-I-0412 was allotted from the D.T.O office. Complainant started to repay the loan amount on monthly installment basis and first installment was paid on 11.04.2010.
It was further stated in the complaint application that on 04.06.2010 starting trouble was noticed in the car and complainant went to the service centre and left his car and came back on 26.06.2010 to take back his car after repair for which complainant paid Rs. 5,7,80/- as cost of repair.
Again on 30.06.2010 trouble started and complainant had to carry the vehicle to the service station of appellant but he could not repair the vehicle and same was sent to its showroom at Bhagalpur where it was repaired and complainant had to pay Rs. 60,000/- as cost of Repair. It is further stated that the Bhagalpur dealer asked petitioner to file an application to the effect that the vehicle met an accident on 05.08.2010 and petitioner accordingly followed the instruction of the dealer to get his car repaired as he had no other option. However, complainant had to pay Rs. 60,000/- in cash as cost of repair but he was provided bill of Rs. 43,074/- on 29.11.2010. The reason was explained as accessories worth Rs. 15,000/- were bought from outside. Vehicle was returned to him on 29.11.2010. Only Rs. 8,000/- was given to complainant against insurance claim as cost of repair of the vehicle although he had made a payment of Rs. 43,074/- on 29.11.2010 to the dealer for which receipt was also provided.
After getting his repaired car from the dealer at Bhagalpur on 29.11.2010 complainant proceeded towards his residence but in the night at about 10:00 p.m the engine caught fire and some how he could be rescued by passerby. He informed about the incident to the Bhagalpur dealer and Purnea dealer immediately and he was asked to send his vehicle to the Purnea showroom for its inspection and on the same date i.e 29.11.2010 he toed the vehicle to Purnea showroom and after inspection of the vehicle he was told that engine suffers from turbo problem which requires to be rectified.
Complainant paid Rs. 26,178/- and Rs. 16,700/- and lastly 2,500/- total Rs. 45,378/- and thereafter car was handed over to the complainant on 17.01.2011. Complainant did not find any problem in the car for six months. Complainant on 28.06.2011 got his car serviced from the service centre for which he had to pay Rs. 10,700/- and thereafter on 17.01.2012 he had to pay Rs. 4577/-. However on 04.02.2012 the vehicle again caught fire and thereafter complainant again toed his vehicle to Purnea showroom and left there.
Complainant was told that 1.5 lacs rupees will be required for repair of the vehicle and as an advance he paid Rs. 10000/- for which receipt dated 23.08.2012 was granted and thereafter, the vehicle remained lying there but inspite of his repeated request it was not repaired although complainant was required to repay the loan amount and out of 35 monthly installment he paid 17 monthly installment and repaid the loan amount but his vehicle remained in the service centre without repair and still lying there and thereafter, complainant was compelled to file complaint case in the District Consumer Forum, Araria giving rise to Complaint Case no. 10 of 2013.
Notices were issued to O.Ps and they filed their written statement denying the claim and deficiency in service by the Opposite Parties no. 1 to 4 (Appellant). It was further stated that no expert opinion has been filed by the complainant to prove the manufacturing defects. Onus is on the complainant to prove the manufacturing defect in the vehicle. It was also submitted that the complainant had purchase the vehicle on 26.02.2010 and till 17.01.2012 vehicle ran 27395 km which indicates vehicle to be in good condition.
After hearing both the parties the District Consumer Commission on appreciation of evidences by its order dated 23.01.2013 held that O.P. no. 1 to 4 /appellant to have committed gross deficiency in service and sold defective car to the complainant and allowed the complaint case by the order as impugned in this appeal.
It is submitted on behalf of counsel for appellant that Araria, District Consumer Commission had no territorial jurisdiction to entertain the complaint case. However, said issue was never raised before the District Commission as such it cannot be permitted to be raised before this Commission.
It was further submitted that car was purchased for commercial purpose and as such consumer complaint case was not maintainable before District Consumer Forum.
This issue was raised before the District Consumer Forum and answered by the forum that there is no evidence on record that car was purchased and used for commercial purpose. Neither vehicle is a passenger vehicle nor it was registered or insured as commercial vehicle as such consumer complaint was maintainable before the District Consumer Forum. We concur with the view expressed by the District Consumer Forum on this issue.
It was lastly argued on behalf of counsel for the appellant that complainant has failed to produce any expert opinion as required under the provisions of section 13(1)(c) of Consumer Protection Act, 1986 to substantiate the allegations of defective vehicle.
Having heard counsels for the parties this Commission finds that Appellant/ O.P. no. 1 to 4 have admitted the vehicle in question was brought to the workshop on several dates as alleged by complainant. From pleading of both the parties is it an admitted position that soon after purchase of the vehicle trouble started and performance of car was unsatisfactory and O.P. no. 1 to 4 who are appellant here have admitted that vehicle was brought in their workshop on 23.02.2010 to 17.04.2010, 06.05.2010, 26.06.2010, 29.11.2010, 17.01.2011, 05.04.2011, 23.04.2011, 28.06.2011 and 17.01.2012 which itself speaks volume about the under performance of the car and the trauma which the complainant had to undergo for nearly 2 years from the date of purchase of the car.
As far as mandatory requirement of expert opinion with respect to manufacturing defect is concern a coordinate bench of this commission under similar circumstances in case of Manager, Maurya Motors Limited Vs. Krishna Kumar Chaudhary in Appeal No. 256 of 2019 is SCDRC, Bihar, Patna by order dated 05.09.2022 has held as following:
“The contention regarding mandatory provision to get expert opinion for ascertaining manufacturing defect, is not correct. The provisions laid down in section 13(1)(c) of the C.P. Act, 1986, is mandatory in nature. The provisions applicable only in such situation. “ where the defect in goods cannot be determined without proper analysis or test of the goods”. The appellant/opposite party no. 1 himself admitted the fact, saying that whenever vehicle was sent to workshop of opposite party no. 1 it was promptly repaired (Ext.4/1 to Ext 4/5). As defects in vehicle were appeared on face of the facts and circumstances of the case, so, it cannot be said that the provisions of Section 13(1)(c) of C.P. Act, 1986 was not applied of.
Right from the purchase of the car complainant was facing problems and even after various repairs carried out by appellants problems could not be rectified. Complainant had purchased the vehicle for his comfort and convenience but it miserably failed to meet his expectation. Complainant can not be saddled with a defective and troublesome car which has given a lot of mental stress and agony to the complainant.
The National Consumer Disputes Redressal Commission, New Delhi in Revision Petition no. 3511 of 2017 in case of Maruti Suzuki India Ltd. Vs. Deepak Singh & Ors by order dated 26.03.2021 has upheld the finding recorded by District Commission as well as State Commission under similar facts and relevant paragraph no. 11 is reproduced below:
“Keeping in mind the afore-said proposition of law, while re-examining the present Revision Petition it is apparent that the Ld. Counsel contends and argues that the conclusion arrived at by the Foras about the manufacturing defect is incorrect and wrong. This Commission has discussed above that it can only interfere with the findings of the Fora below if the findings are perverse or there is a wrong exercise of jurisdiction. The findings can be said to be perverse when it is based on no evidence and when the material evidence has not been considered. In the present case while reaching to the conclusion that there was a manufacturing defect in the vehicle the Foras below have relied on cogent evidences of the nature that the vehicle had to be taken repeatedly for services on number of occasions immediately after purchase for the rectification of defects, which the Respondent No. 2 the Authorized Dealer had failed to rectify. The Petitioner/Manufacturer although contended that there was no manufacturing defect yet it did not produce any expert opinion to prove that there was no manufacturing defect in the vehicle, although the law permits either of the parties to obtain expert opinion. There were sufficient evidence before the District Forum to reach to the conclusion that the vehicle was having manufacturing defect and so the District Forum did not feel any necessity to call on its own the expert opinion.”
This Commission does not find any error or material irregularity in the order passed by the District Consumer Forum, Araria, requiring any interference by this Commission, accordingly, this appeal is dismissed.
(Ram Prawesh Das) (Sanjay Kumar,J)
Member President
Md. Fariduzzama
