Haryana

Ambala

CC/302/2010

THE PEHOWA NATIONAL - Complainant(s)

Versus

MODERN AUTOMOBILES - Opp.Party(s)

P.S.Sharma

11 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

Complaint Case No. : 302  of 2010

Date of Institution     :  23.06.2010

Date of Decision       : 11.05.2016

 

The Pehowa National Cooperative  Transport Society  Ltd. Pehowa through its President Darshan Lal son of Rulda Ram R/o village Saini Majra, District Kurukshetra.

                                                                                                                                                                                                ……Complainant.

 

                                                                                                                    Versus

 

1. Modern Automobiles (EML) near Model Town Crossing Adjoining Hotel Amarpali, Ambala City. Authorized representative Eicher Motors Ltd.

 

2. Eicher Internal Ltd. Ist Floor, Ahulwalia Chambers 16/17 Local Shopping Centre Madangir, New Delhi.

 

3. Eicher Motors (The CV Unit of Eicher Motors Ltd.) 102, Industrial Area No.1, Pithampur, District Dhar (MP) Eicher Plant and Marketing Headquarters through its Managing Director.

                                                                             ……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

CORAM:    SH.A.K. SARDANA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

         

Present:       Sh. Lal Singh Saini, Adv. counsel for complainant.

                   Sh. S.R. Bansal, Adv. counsel for Ops.

 

ORDER.

 

                    Brief facts of the present complaint are that the complainant purchased an Eicher Bus Chasis LPT-1110, bearing No.20KF-7J021806 & Engine No.E483CD7J-173082 on 12.10.2007 in a sum of Rs.7,11,000/- having warranty of three years in respect of Engine and Gear Box from Ops and when the said chasis built up as a Bus & plied on road, it was  found that  all the parts i.e. gear box, clutch plate, press plate etc. are of small body and due to this,  the chasis went out of order many times as a result of which complainant got repaired the engine twicely &  gear box for six times.  Pressure & clutch plates have been replaced for four times and  due to this, bus remained confined in the workshop of Ops  resulting into a loss of Rs.1.00 lac occurred to the complainant. Further it has been alleged that  due to defective break rechard killi set, the bus met with an accident twice and complainant had to pay Rs.25,000/- to the 2 car owners. So, as per complainant, he approached the Ops time and again to replace the chasis within warranty period but the Ops lingered on the matter on one pretext or the other. Registered legal notice was also served upon the Ops but of no avail. Hence, the present complaint seeking relief as per prayer clause has been preferred by the complainant.  

2.                Upon notice, Ops appeared through counsel and submitted written statement raising preliminary objections qua non-maintainability of the complaint since the vehicle was out of warranty & no cause of action etc.   However, it has been submitted that the vehicle in question was brought to their workshop for paid service on 11.08.2010 after covering 3,10,112 KMs and complainant took the delivery of the vehicle same day after making payment to the OP No.1 leaving behind no other complaint and this fact has not been disclosed by the complainant. It has been further submitted that again on 01.09.2010, the complainant visited their workshop for petty jobs in the vehicle and made payment of Rs.3873/- and took the delivery and thereafter neither any complaint nor any defect was ever noticed or reported. On merits, it has been submitted that the complainant has not built up the body on the chasis in question as per norms & conditions of the manufacturer and the warranty clause come to an end when the vehicle met with an accident. Besides it, Ops have also urged that the complainant has not lead any expert & cogent evidence as required U/s 13(1) (c to g) of C.P. Act without  which it is not possible for the Forum to reach at conclusioin. Rest of the contents of complaint have been denied and prayed for dismissal of the complaint with costs.

3.                To prove his contention, counsel for complainant tendered affidavit of complainant as Annexure CX and affidavit of one Manjit Kumar as Annexure C-Y alongwith documents as Annexures C-1 to C-9 and closed his evidence whereas on the other side, counsel for Ops tendered affidavit of one Yogesh Gupta, Service Engineer of OP Company as Annexure RX and closed the evidence on behalf of Ops.

4.                We have heard learned counsel for the parties and gone through the record very carefully. The main grievance of the complainant is that after affixing body on the chasis in question and plying it on road, it created many problems of gear box, clutch plates &  pressure plates etc. and after repeated repairs, it did not work properly. Counsel for the complainant has thus argued that due to defect in the vehicle, it met with accident two times. As such, the prayer of the complainant is to direct the Ops to replace the vehicle chasis with new one as it became defective during warranty period and also for grant of compensation for harassment & damages. Counsel for complainant has placed reliance on case laws titled as Hero Honda Motors Ltd. and others Vs. T.Nagender 2006(1) CLT Pg.351 (NC) wherein it is held that ‘Manufacturing defect- Motor cycle-vehicle suffered from inherent problems comprising starting trouble, low mileage, hard rear, improper focus lights etc. –OP Nos. 2 and 3 detained the vehicle for nearly 43 days but major defect of vehicle not rectified-Findings of the District Forum of manufacturing defect and directing Ops, the manufacturer, dealer jointly and severally to replace the motor cycle with a new one, which is free of defects, with fresh warranty period needs not interference,  Tata Motors Ltd. & Ors. Vs. Lachia Setty 2008(1) CLT Pg. 596 (NC) wherein it has been observed that ‘Manufacturing defect-Car-Indigo LX Euro vehicle-The buyer had frequently complained to the dealer about the defects in the clutch system and gear box  in the transmission system- The vehicle was taken to the workshop of the dealer time and again for the repair for which job cards were open-At no point of time purchaser has given a satisfaction  report after repair of the car- The complainant has sent complaints to the dealer as  well as the manufacturer time and again before  he filed complaint-Finding of the For a below directing refund of the cost of the vehicle together with interest @ 10% p.a. upheld and  Mahindra and Mahindra ltd. Vs. Mahesh Sukhthankar and others 2004(2) CLT Pg 687 (NC) wherein it has been held that Jeep-Manufacturing defect-As per Engineer’s report there were major defects for which the complainant informed the dealer at the earliest and dealer  was not in a position to rectify the same-The vehicle was used on the date  of complaint for 9,000 kms.  and thereafter at the time of inspection by the Commissioner it had covered a distance of 65,000 kms.  – Order by the State Commission to refund a sum of Rs.2,67,997/- with interest @ 18% per annum modified by deducting one-fourth of the amount deducted towards the use of the vehicle- instead of refunding an amount of Rs.2,67,997/- appellant/OP is to refund Rs.2.00 lacs with interest, compensation and costs as directed by the State Commission.

                   On the other hand, counsel for Ops argued that the vehicle was having some minor defects and whenever the complainant brought the vehicle to them, it was completely repaired to the satisfaction of complainant. Counsel for Ops emphasized that since as per version of complainant, the vehicle met with accident, so, as per warranty clause, as soon as the vehicle under warranty met with accident, warranty comes to an end. It has been vehemently argued that the complainant is not a consumer as per provisions of the Consumer Protection Act because the vehicle was being plied for making profit not for livelihood.  Counsel for OP further contended that complainant has not led any expert evidence as required  under section 13(1) (c to g) of Consumer Protection Act except the affidavit of one Manjit Kumar S/o Sadhu Ram, Sorav Automobile, Ambala who deposed that the  bus in question was brought to the workshop of deponent for repair purposes in November 2010 where the whole engine of the bus was overhauled and he charged Rs.5500/- but it has nowhere been deposed in the affidavit that  what defects the vehicle in question was having  and whether these defects were manufacturing or accidental? Further no any qualification & designation of Manjit Kumar has been mentioned in the affidavit to prove that whether he is a Mechanic or Engineer or proprietor  of Sorabh Automobile whereas Ops have tendered affidavit of one Yogesh Gupta, Service Engineer of M/s Eicher  Motors, now known as V.E. Commercial Vehicle, SCO No.1, Sector-16, Panchkula wherein he has deposed that complainant was lastly attended on 01.09.2010 while covering of vehicle in question at  2,12,538/- Kms. as paid Service for normal  jobs and thereafter no complaint was received  in the workshop of OP No.1 from whom the vehicle was purchased on 12.10.2007. Counsel for OP  placed reliance on case law titled as Tata Motors Ltd. & Ors. Vs. Ashish Aggarwal & Ors. 2014(2) CLT-34 (NC) wherein it has been held that ‘Sections 2(1)(g) & 13 of Consumer Protection Act-Manufacturing defect-expert opinion-Held-The question as to whether there was or was not any manufacturing defect in the vehicle in question could not have been decided by the allegations and  counter allegations by the District Forum rather could have been decided effectively and successfully only after obtaining expert opinion  in that behalf- Matter remanded back  for obtaining expert opinion.

5.                At the very outset, it is admitted by the parties to the complaint that the vehicle chasis in question was purchased by complainant on 12.10.2007.  We  have gone through the documents Annexure C-1 to C-5 which are bills of spare parts purchased for the vehicle and  documents Annexures C-6 to C-8 are cash receipts of Rs.20,000/, Rs.15,000/- and Rs.17224/-respectively issued by Sidhu Motors for repair of the disputed vehicle. The complainant in support of his case has tendered his affidavit (Annexure CX) as well as affidavit of one Manjit Kumar (Annexure C-Y) to maintain his contention but in this affidavit neither the designation of Manjit Kumar has been mentioned nor any defects have been pointed out whereas as per provision of Section 13(1)(c) of C.P. Act,  the complainant was required to submit any report of Expert/Technical person  either at the time of filing of complaint or during the proceedings  of the case to prove defects in the chasis as alleged in the complaint. Further  the complainant was at liberty to get assistance of the Forum to get the vehicle inspected from any recognized/Govt. workshop for  ascertaining the defects of the vehicle. So, the complainant has failed to prove his contention as required under Section 13(1)(c) of C.P. Act.  On the other hand, OP’s have tendered affidavit of Yogesh Gupta, Service Engineer M/s Eicher Tractors who has deposed that vehicle in question  was last attended on 01.09.2010 while covering 2,12,538/- Kms. as paid service for normal jobs which was properly dealt with and thereafter no complaint was made. So, the complainant has not placed on record any material to prove his contention as required U/s 13(1)(c to g) of C.P. Act.

                   In view of the facts discussed above, we  are of the confirmed view that complainant has miserably failed to prove his case and thus we have no option except to dismiss the present complaint. Accordingly, the complaint is dismissed with no order as to cots. Copies of this order be sent to the parties concerned free of costs, as per rules. File be consigned to the record room after due compliance.  

 

ANNOUNCED:11.05.2016

                                                                                 Sd/-       

                                                                          (A.K. Sardana)

                                                                                    President.     

 

                                                                                 Sd/-

                                                                   (Pushpender Kumar)

                                                                                    Member.