Haryana

Ambala

CC/330/2017

Shammi Kumar - Complainant(s)

Versus

Mohan Vehicles - Opp.Party(s)

Ashutosh Aggarwal

15 Nov 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

       Complaint Case No : 330 of 2017

        Date of Institution    : 22.09.2017

          Date of Decision       : 15.11.2018

 

Shammi Kumar s/o Sh.Pritpal Singh age 48 years, r/o H.No.63-B, Climb Paradise Naraingarh District Ambala.

……Complainant.

 

Versus

 

1. Mohan Vehicles Pvt.Khanna Nissan, Authorized dealer of Nissan Motors India Pvt.Ltd. # 13/40, KM Stone, Tepla Auto Hub, Ambala-Jagadhari Highway, Ambala through its Manager/Director.
2. Nissan Motors India Pvt.Ltd. Corporate Office- 5^th Floor, ASV Ramana Towers, 52 Venkatnarayana Road, Chennai-600017 through its General Manager.

……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:       SH.D.N.ARORA, PRESIDENT.

                        SH.PUSHPENDER KUMAR, MEMBER.

                        DR.SUSHMA GARG, MEMBER.

                       

Present:          Sh.Ashutosh Aggarwal, Adv. for complainant.

                        Sh.P.S.Sharma, Adv. for OP No.1.

                        Sh.Rajeev Sachdeva, Adv. for OP No.2.

 

ORDER

 

                        The complainant has filed the present complaint against the OPs with the averments that he had purchased a Car Micra bearing registration No.HR04E-1931 from OP No.1 for a sum of Rs.5,90,000/- vide receipt No.1590 dated 31.12.2012 after getting it financed from Oriental Bank of Commerce, Kala Amb and till today he has been making the payment of installments regularly.  The car of the complainant met with an accident and was taken to OP No.1 for repairs on 27.02.2013. Necessary repair was done and being genuine claim the amount of repair was paid by the insurance company.  The Op No.1 had taken sufficient time from 27.02.2013 to 12.03.2013 in repairing the vehicle and after confirmation about its being roadworthy the car was delivered to complainant. On 21.03.2013 within 9 days of its repair when the car had run only 447 Kms. the engine of the same started making noise and knocking problem. After checking the OP No.1 revealed that engine of the same requires overhauling which was due to damage caused in earlier accident. The complainant refused for overhauling the engine and requested for new engine but OPs flatly refused to do so and the complainant has been forced to face trouble mentally and physically since the repair done at that time i.e. during the period from 27.02.2013 to 12.03.2013. The car of the complainant has been withheld by OP No.1 since 21.03.2013 and the complainant has been making the payment of installments regularly. The complainant had to purchase new car after getting it financed from OBC in the name of her wife. The registration number of the car is HR04F-1620 and validity of the RC is from 29.12.2015 to 21.06.2030. The complainant has been forced to pay EMIs for two cars. The OPs have adopted unfair means and unfair trade practice against the complainant besides deficiency in service on their part. In evidence, the complainant has tendered affidavit Annexure CA and documents Annexure C1 to Annexure C7.

2.                                 On notice OPs appeared and filed their separate replies. OP No.1 in its reply has taken preliminary objections such as locus standi, cause of action and estoppal etc. The vehicle of the complainant met with an accident and the vehicle was repair and thereafter same was delivered to the complainant as per his satisfaction on 12.03.2018 vide invoice No.RRIAI20000095 dated 12.03.2018   wherein Pan assembly Oil, Gasket Oil Pan and Engine Oil was damaged and there was no engine oil and the complainant obtained the insurance claim also to this effect amounting to Rs.22,105/- from the insurance company. The liability of the company with regard to warranty is in case of mechanical and technical fault in the parts of the car and not in case of fault on account of accident and the warranty in case of mechanical/technical fault is also of manufacturing company i.e. M/s Nissan Motors India Pvt. Ltd. and not of the OP No.1. The complainant cannot claim the benefit of warranty for accidental vehicle. The car was brought to the workshop after running 3367 KMs in total and after investigation it came to the knowledge that engine requires overhauling which was due to damage caused in the earlier accident and the complainant was advised to approach the insurance company for claim under insurance policy as the leakage in engine oil was due to damage caused in earlier accident. Vide letter dated 13.05.2013  the complainant was intimated about engine overhauling for goodwill gesture by the Nissan Motors but complainant refused to do so and asked for new engine which was no possible. The vehicle of the complainant is still lying in the premises of OP No.1 but the complainant neither has given the consent to repair the same nor took the vehicle. The present complaint has been filed with ulterior motive and the same is bad for non-joinder and mis-joinder of necessary parties. There is no deficiency in service on the part of OP No.1 as the defects occurred in the vehicle due to accident. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

                                    Op No.2 in its reply has submitted that there is no deficiency in service on its part as defined under Section 2 (g) of the Act.  The OP No.2 cannot be held liable for the omission of Op No.1 as their relations are on principal to principal basis.  The OP No.2 has no role in the matter in question; therefore no liability can be fastened on it. Under established law of land the manufacturer is only liable to replace the vehicle or refund the cost only if there is some inherent or manufacturing defect being found in the alleged vehicle. There is no expert report on the case file to prove inherent and manufacturing defect in the same. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RX, Annexure RA and documents Annexure R1 to Annexure R30.

 4.                    We have heard learned counsel for the parties and gone through the case file very carefully.

5.                     Undisputedly the complainant had earlier filed a consumer complaint dated 10.05.2013 and the same was dismissed as withdrawn on account of some technical reasons. Vide order dated 28.07.2017 this Forum had allowed the request of the complainant and had given 60 days time for filing the fresh complaint on same cause of action. The OPs have come with the plea that the earlier complaint was filed by concealing the material facts from this Forum, therefore, the present complaint is also not maintainable. It is not disputed that the insurance company had made the payment of repair charges of the vehicle and the OPs have pressing hard on this point that the complainant had concealed this fact. It is not understandable as to which prejudice has been caused to the OPs due to not mentioning of this point by the complainant in his earlier complaint. It is a settled law that complainant is a master of his/her complaint and even the earlier complaint was dismissed as withdrawn by the complainant by his own wish and in the interest of justice and equity he was given liberty to file fresh complaint within 60 days on the same cause of action. In this complaint there is nothing on the file to show that the complainant has changed the nature of the complaint and filed the present complaint on different cause of action, therefore, the case law titled as Bakhtawar Singh Vs. Sada Kaur  1997 (1)  HLR  718 (SC) relied upon by learned counsel for the OPs is not applicable to the case in hand and same is hereby distinguished.

6.                                 The complainant has come to this forum with the plea that there was manufacturing/inherent defect in the vehicle and due to this engine of the same got seized and require overhauling. Admittedly, the vehicle had met with an accident and during repair work Pan Assembly Oil, Gasket Oil Pan and Engine Oil were changed and the complainant had also given satisfaction letter dated 12.03.2013 Annexure R13 vide invoice No.RRIA12000095 dated 12.03.2013 when the vehicle had already run 2920 Kms.  In this very document it has been clearly mentioned that the complainant has no other grievance/ complaint whatsoever in respect of the said vehicle and he is fully satisfied with the quality and performance and also receiving the delivery of his car. On the bottom of this document he has acknowledged the same by putting his signature in English. There is nothing on the case file to show that this document was obtained by putting undue pressure on the complainant and there was some hide and seek in this document. The document itself speaks in clear words that there is no other grievance/complaint in the said vehicle and the complainant is fully satisfied with the performance and quality. The complainant has claimed that there was manufacturing defect/inherent defect in the vehicle but it is strange that after necessary repairs the vehicle had run 447 Kms. as is admitted by the complainant in para No.4 of the complaint and before the accident it had also run 2920 Kms. Had there been any manufacturing defect/inherent defect in the vehicle qua the engine etc. the vehicle could not have even run even a Single KM and even could not have started. In the present case the complainant has not produced any expert evidence to show that the engine got seized and requires overhauling due to changing of Pan Assembly Oil, Gasket Oil Pan and Engine Oil. Moreover, when the vehicle had met with an accident and the complainant has claimed/received the insurance claim in that eventuality, the present complaint regarding manufacturing defect, if any is also bad in the eyes of law. There is no evidence to show that the vehicle was having any manufacturing /inherent defect in the vehicle and the complainant himself has acknowledged the satisfaction note (Annexure R13). Moreover, the complainant has not taken any steps to get vehicle inspected through independent agency to prove his person by moving an application under Section 13 (1) (c) of Consumer Protection Act, therefore, this Forum is of the view that the complainant has failed to prove any deficiency against the OPs by leading cogent and reliable evidence.

7.                     Keeping in view the facts and circumstances of the case this Forum is of the view that the complainant has failed to prove any deficiency in service on the part of OPs and has failed to prove his case by way of leading cogent and reliable evidence. Accordingly, we hereby dismiss the present complaint leaving the parties to bear their own costs. Copy of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

Announced on: 15.11.2018                                                            (D.N.ARORA)

                                                                                                  PRESIDENT

 

 

 

                                                                                     (PUSHPENDER KUMAR)                                                                                                 MEMBER

 

 

 

(DR.SUSHMA GARG)

                                                                                        MEMBER