Punjab

StateCommission

FA/1363/2013

Paramjit Singh - Complainant(s)

Versus

Max Autos & another - Opp.Party(s)

Tribhawan Singla

18 Sep 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1363 of 2013

 

                                                Date of Institution: 11.12.2013

                                                Date of Decision :  18.09.2015

 

Paramjit Singh son of Sh. Gurcharan Singh, resident of Vishwakarma Street, Bajakhana Road, Bhadaur, District Barnala                                                                                                                                                                                                                                                                                   …..Appellant/Complainant 

                                      Versus

 

1.      Max Autos, Mansa Road, Handiaya Chowk, Barnala 148101 through its Manager/Prop.

 

2.      Maruti Suzuki Ltd., Palm-Gurgaon Road, 122015 through its   Managing Director

 

                                                          … Respondents/Opposite parties

 

First Appeal against order dated 29.10.2013 passed by the District Consumer Disputes Redressal Forum,  Barnala.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                       :     Sh.Harsh Goyal, Advocate

          For the respondent no.1   :   Sh.Tushant Deep, Advocate

          For the respondent no.2   :   Sh.Salil Sabhlok, Advocate

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 29.10.2013 of District Consumer Disputes Redressal Forum Barnala, accepting the complaint of the complainant by directing the OPs to conduct the repair of the roof of the car free of costs, besides composite compensation of Rs.5000/-to the complainant. The instant appeal has been preferred by the complainant now appellant in this appeal against the same.

2.      The complainant Paramjit Singh has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he purchased one new ALTO K10 VXI-AMR4CDI car bearing chassis no.ma3eadels00346257, Engine No.K10BN 71499 98 from OP No.1, vide invoice no.VSL12000034 dated 24.04.2012 against price of Rs.3,10,544/-. The car was manufactured by OP No.1 and was under warranty for any defects. The complainant noticed that there were many dent marks in the roof of the car and it was also not having the required strength flexibility. The complainant sought replacement of the car from OPs because it was having manufacturing defect in the roof. OP No.1 assured the complainant to take up the matter with OP No.2/manufacturer of the car for its replacement. The complainant visited several times to OP No.1, but they all proved futile. One Jaspreet Singh T.S.M. of OP No.2 visited the workshop of OP No.1 and inspected the car and he found defect in the roof of the car either at the time of die punching of roof or at the time integrating the roof in the body shell of the car, which could not be removed and only visible dents could be removed and roof repainted. The said Jaspreet Singh T.S.M. of OP No.2 asked the complainant that he could not recommend for replacement of the car and it would cause loss to the OPs. The complainant approached the OPs many times, but to no effect.  The complainant has, thus, filed the present complaint against the OPs with prayer to replace the car or in alternative to refund the price of the car along with registration charges and insurance, besides payment of Rs.1 lac, as compensation for mental harassment and Rs.25,000/- as costs of litigation.

3.      Upon notice, OP no.1 appeared and filed its separate written reply by raising preliminary objections that complaint is not maintainable.  The complainant has not come to the Forum with clean hands and concealed the material facts from the Forum. The present complaint is baseless, false and vexatious.  On merits, it was denied by OP No.1 that there was any manufacturing defect in the car. The car has PDI Job Card dated 24.4.2012 along with satisfactory note dated 24.4.2012 and delivery receipt dated 24.4.2012, which reflected that complainant received the satisfactory service from the Ops and vehicle was in perfect condition. It was alleged by OP No.1 that complainant has misled the Forum by concocting false story in the complaint. It was further pleaded by OP No.1 that complainant did not report the alleged problem of the car at the time of obtaining running repairs and first free inspection service on 02.05.2012 at 219 KM and on 8.6.2012 at 1252 KM respectively. The complainant firstly reported the alleged problem in the car on 30.6.2012 at its run of 1500 KM. The car was thoroughly inspected by expert engineer of OP No.1 and he found no manufacturing defect therein. It was averred by OP No.1 that dent marks were found on the roof of the car, which were caused due to jumping of animal or child over the roof of the car. The expert engineer found dent marks on the roof of the car and not manufacturing defect on the roof of the car. These dent marks could be repaired, but the complainant refused to accept the same. Any unfair trade practice or deficiency in service on the part of OP No.1 was vehemently denied in the written reply. OP No.1 prayed for dismissal of the complaint.

4.      OP No.2 filed its separate written reply and contested the complaint of the complainant. It was averred in preliminary objections by OP No.2 that complaint filed by the complaint is false and frivolous and merits dismissal on this score. The complaint is alleged to be bad for mis-joinder of parties. It was further pleaded that OP No.2 is neither a necessary party nor a performa party in the complaint. OP No.2 discharged their warranty obligations and complainant was never denied any warranty condition and he was entitled thereto. It was denied that complainant is consumer of OP No.2. It was further averred that there is no material on the record to prove any manufacturing defect in the car adduced by the complainant. The car has been manufactured by OP No.2, which is duly approved by appropriate authority of the Government of India, after homologation test, considering all aspects of quality, safety, emission norms. OP No.2 is an ISO certified Company and is world renowned for stringent quality checks at every level of production of vehicles. Sophisticated technology is used in the manufacturing process for production of vehicles, which are 100% defect free. The vehicle manufactured by OP No.2 undergo stringent quality checks at all levels of production and OP No.2 has ISO/TS16949 certification for maintaining international manufacturing standards. It was further pleaded that OP No.1 carried out pre-delivery inspection (PDI) including road test, ensuring perfect OK, roadworthy condition of vehicle in question at the time of sale leaving no place for defects in vehicle. The customers at the time of sale acknowledges the same by signing the PDI/warranty Registration Card at the time of purchasing the vehicle. As per clause 3, the obligation of OP No.2 is to repair or replace at its sole discretion any part shown to be defective. The relationship of OP No.1 and 2 is on principal to principal basis, as per Dealership Agreement executed between the parties. Any manufacturing defect was denied by OP No.2 in the car of the complainant. OP No.2 further pleaded that complainant has not reported any problem at the time of obtaining running repairs and first free inspection service on 02.05.2012 at 219 Kms and on 08.06.2012 at 1252 Kms respectively. The complainant has not reported the alleged problem nor any abnormality was observed by the expert service engineer of the workshop in the above vehicle. The OP no.2 controverted the averments of the complainant, as pleaded in the complaint and, thus, prayed for dismissal of the complaint.

5.      The complainant tendered in evidence, his affidavit Ex.C-8, affidavit of Karamjeet Singh Ex.C-9 along with copies of documents Ex.C-1 to Ex.C-1 to Ex.C-7 and Ex.C-10 to Ex.C-12.  As against it, OP No.1 tendered in evidence affidavit of Om Parkash Sharma, Manager Sale M/s Max Auto /OP No.1 Ex.OP-1/1 along with copies of documents Ex.OP-1/2 to Ex.OP-1/10. OP No.2 tendered in evidence affidavit of Jaspreet Singh Service Engineer of OP no.2 Ex.OP-2/1 along with copies of documents Ex.OP-2/2 to Ex.OP-2/16. On conclusion of evidence and arguments, the District Forum Barnala, accepted the complaint of the complainant by directing the OPs to conduct the repair of the roof of the car free of costs, besides composite compensation of Rs.5000/- to the complainant. Dissatisfied with the order of the District Forum Barnala, the complainant now appellant has preferred this appeal against the same.

6.      We have heard learned counsel for the parties at considerable length and have also examined the record of the case.

7.      The complainant purchased the car from OP No.1, which was manufactured by OP No.2 on 24.04.2012 against price of Rs.3,10,544/-. The complaint of the complainant is that there were many dent marks on the roof of the car and it has no sufficient strength and was flexible and hence it contacted. It is further stated that he sought the replacement of the car due to manufacturing defect composition on the roof of the car, but to no effect.  The version of the complainant is that Jaspreet Singh TSM of OP No.2 also told him that there was manufacturing defect in the above car. We have considered the written version of the OPs in this case also, they have denied any such manufacturing defect in the car in question. Ex.C-1 is invoice for purchase of the car by the complainant for Rs.3,10,544/-. Ex.C-2 is Job Card Retail Cash Memo. Ex.C-3 is certificate of insurance. Ex.C-4 is registration document of the car in the name of the complainant. Ex.C-5 is job car no. JC12000456 dated 02.05.2012. This job card does not record any manufacturing defect on the roof of the car. Ex.C-6 is the connecting document of OP No.1 for free service, but it is silent regarding any manufacturing defect on the roof of the car. The complainant served legal notice Ex.C-7 upon OPs in this regard. The affidavit of complainant is Ex.C-8 to prove that there was manufacturing defect on the roof of the car. Ex.C-9 is affidavit of Karamjeet Singh Mechanical Engineer, which is to the effect that manufacturing defect on the roof of the car and assembly defect cannot be removed without removing whole of the roof of the car. The certificate issued by this witness Karamjeet Singh Ex.C-10 and Ex.C-11 is e-mail news dated 14.03.2012, vide which, it transpired that Maruti to recall diesel cars due to engine problem and replaced the defective parts free of costs.

8.      OP No.1 tendered in evidence affidavit of Om Parkash Sharma Manager of OP No.1. He stated in his affidavit that complainant has invented a false story in this case to get undue benefits. He further stated that vehicle has PDI Job Card dated 24.04.2012 along with note dated 24.04.2012 and delivery receipt dated 24.04.2012, which reflected that complainant received satisfactory service from OP No.1 and vehicle was in perfect condition and he produced copy of PDI Job Card, satisfactory note and delivery receipt Ex.OP-1/3, Ex.OP-1/4 and Ex.OP-1/5 are on the record. This witness further stated that there was no manufacturing defect in the car. The complainant obtained first free inspection service on 02.05.2012 at 219 Km and on 08.06.2012 at 1252 Km respectively. The job card proved by this witness dated 02.05.2012 is Ex.R-6 and dated 08.06.2012 Ex.R-7 on the record. This witness stated that car was inspected thoroughly by the expert service engineer in the presence of the complainant, but no manufacturing defect was detected therein. He further stated that dent marks were observed on the roof of the car, which were caused due to jumping of animal or child over the roof of the car in question. He further stated that dent marks were quite repairable and could be repaired by the OPs, but complainant refused them. He proved job card dated 30.06.2012 is Ex.R-8 on the record. This witness further stated that complainant sent his car on 13.10.2012 at 5133 Km for obtaining second free inspection service and he has no complained any defects or problem therein. Ex.OP-1/2 is certificate of Anil Kumar Garg proprietor of OP No.1 authorizing Om Parkash to conduct the proceedings in this case and to appear, as a witness. Ex. OP-1/3 is job card no.JC PD-11000302. It records, no such manufacturing defect in the vehicle. Satisfactory note singed by the complainant dated 24.4.2012 is Ex.OP-1/4. Delivery receipt signed by the complainant dated f24.4.2012 is Ex.OP-1/5 of the car in question. The job card Ex.OP-1/6 and Ex.OP-1/7 have also been placed on the record. The vehicle Ex.OP-1/10 has brought on the record.

9.      OP No.2 tendered in evidence affidavit of Jaspreet Singh qualified engineer Ex.OP-2/1. Ex.OP-2/2 is dealership agreement between OP No.1 and 2. Ex.OP-2/5 is the PDI Job Card dated 24.04.2012. Ex.OP-2/6 is delivery report. Ex.OP-2/7 is satisfactory note. Similarly, other documents, which are job cards have also been brought on the record by OP No.2.

10.    From hearing respective submissions of counsel for the parties and appraisal o material evidence on the record, we are of this view that the complainant must prove the manufacturing defect in the car purchased by him. The complainant relied upon his affidavit Ex.C-8, affidavit of Karamjeet Singh Ex.C-9 and certificate of Karamjeet Singh Ex.C-10 to this effect on the record. The complainant stated that the composition of the roof of the car has not required strength and it moulds easily and is flexible. The complainant sought corroboration from the affidavit of Karamjeet Singh Mechanical Engineer Ex.C-9 on the record, wherein he stated that as he has seen the car in question and he is of the opinion that defect on the roof of the car is the manufacturing and assembly defect and cannot be removed without removing whole of the roof of the car, which may damage the alignment and performance of the vehicle.

11.    To counter this expert evidence, the OP relied upon affidavit of Jaspreet Singh who was a qualified engineer, who has ruled out any such manufacturing defect on the roof of the car in his affidavit adduced on the record. The complainant himself pleaded in the complaint that Jaspreet Singh also found manufacturing defect in the car and stated him about it. Jaspreet Singh tendered his affidavit Ex.OP-2/1 on the record and stated on oath that there was no manufacturing defect in the car. The case of the OPs is that the complainant reported the above problem for the first time on 30.06.2012, when the card had run 1500 Km drive. The submission of counsel for the OPs is that above dent marks on the roof of the car appeared on account of jumping of animal and child over the roof of the car and not due to any manufacturing defect. Now we again revert to the evidence of Karamjeet Singh expert witness of the complainant. He is not automobile engineer, but is only a mechanical engineer. He is not expected to have the due expertise of automobile engineering.  He has nowhere stated that these defects on the roof of the car were completely ruled out on account of jumping of animal and child on the roof of the car, when it was parked somewhere. We prefer to rely upon the evidence of Jaspreet Singh as examined by OPs over the evidence of Karamjeet Singh, the witness of the complainant. If the manufacturing defect was therein from the very beginning, then complainant could have brought it to the notice of the OPs immediately. The complainant brought it to the notice of the OPs for the first time on 30.06.2012 when it had already run 1252 Km. The job card dated 30.06.2012 is Ex.OP-2/13 on the record. Consequently, we find that since complainant himself relied upon that Jaspreet Singh found manufacturing defect, but he gave his affidavit to the contrary on the record disproving the assertion of the complainant. The non-reporting of any defect on the roof of the car by the complainant till 30.06.2012, when it ran up to 1252 Km, vide job card Ex.OP-2/13 itself has neutralized the case of the complainant that there was any manufacturing defect on the roof of the car. The complainant relied upon law by Goa State Consumer Disputes Redressal Commission Panaji in Gulzar Abdul Rahim Mulla versus  Manager, Auto Industries Goa Pvt. Ltd and others, reported in 2004(4) CPJ 226 and other by Gujarat State Consumer Disputes Redressal Commission, Ahmedabad, reported in 2010(4) CPJ Page 160 and other by National Commission in Scooters India Limited and another versus  Madhabananda Mohanty, reported in 2005(2) CPJ (N.C) Page 136.

12.    From perusal of above-referred authorities and when sought to be applied with the facts of the case in hand, we find that the facts of the instant case are distinguishable from the ratio of law decided in the above-referred authorities. Each of the authorities are different due its own peculiar facts and hence they would not be applicable in the case in hands. The District Forum after evaluating the above-referred evidence on the record, rightly came to the conclusion that complainant could not prove any manufacturing defect in the car, as complainant has no complained, as to what the actual possible standard strength of the roof and what was the actual strength of the roof of the car in question in this case. There is no bench mark available with us to compare the above standard strength and actual strength of the roof of the car. The complainant could not establish this fact on the record, as to what was the standard strength and what was the actual existing strength of the roof of the car. The non-proof of the fact of defect in the car by the complainant till it had run 1252 Km up to 30.06.2012 itself negates the case of the complainant. The District Forum has rightly not relied upon the affidavit of Karamjeet Singh Ex.C-9 in this case and rather preferred to rely upon the affidavit of Jaspreet Singh, who inspected the car with requisite experience therein.

13.    Consequently, District Forum rightly ordered the OPs to repair roof of the car jointly and severally free of costs and further to award composite compensation of Rs.5,000/- to the complainant. We do not find any illegality or material infirmity in the order of the District Forum, calling for any interference therein in this appeal.

14.    As a result of our above discussion, we affirm the order of the District Forum Barnala dated 29.10.2013, under challenge in this case and resultantly the appeal filed by the appellant/complainant is ordered to be dismissed.

15.    As a result of our above discussion, there is no merit in the appeal and same is hereby dismissed.      

16.    Arguments in this appeal were heard on 10.09.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

17.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                        (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

September 18,  2015.                                                                  

(ravi)