BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM, MOGA.

Complaint No.132 of 2014

Instituted On:17.11.2014

Decided On: 09.02.2015

Gurcharan Singh aged 42 years son of Sh Bant Singh resident of Village Patto Hira Singh, Tehsil Nihal Singh Wala, District Moga.

……….Complainant

Versus

1.       M/S Dada Motors Private Limited, Near Kaner Hotel Bughipura, Chowk Moga Tehsil and District Moga through its Manager.   

2.       M/S Dada Motors Private Limited Savitri Complex, G.T. Road Dholewal, Ludhiana.

                                                                                                                                                                  ………. Opposite Parties

Complaint under Section 12 of the

        Consumer Protection Act, 1986.

Coram:       Sh.S.S.Panesar, President

                   Smt Vinod Bala, Member

         Smt.Bhupinder Kaur, Member

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Present:       Sh.Sukhdev Singh Sandhu, Advocate counsel for the

                   complainant.

Sh. Indermohan Pal Singh  L.O. for the opposite parties

ORDER

(S.S.Panesar, President)

The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against M/S Dada Motors Private Limited, Near Kaner Hotel Bughipura, Chowk, Moga Tehsil and District Moga through its Manager and another  (herein-after referred to as opposite parties)-OPs directing them to replace the vehicle in question with a new one or to refund the price of the vehicle and to pay Rs.50,000/- as  compensation for causing mental tension and harassment.

2.                Briefly stated, the complainant is a registered owner of the vehicle Tata SHT bearing registration No.PB-29R-2694, make Tata Motor Limited. The complainant purchased the said vehicle from the opposite parties for a consideration of Rs. 3,74,228/- vide invoice No.DADAMO-1415-00099 dated 15.04.2014 by taking a loan from HDFC Bank Limited, Moga. The opposite parties gave a guarantee for one year on the above said vehicle. After three days from the date of purchase, the vehicle in question became defective. The complainant approached the opposite parties and

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requested them to rectify the defect of the vehicle, but to no effect. It has been pleaded that there is a manufacturing defect in the vehicle in question. It has further been pleaded that on asking of opposite party No.1, the complainant brought the vehicle to the work shop of opposite party No.1 to rectify the defects on 6.10.2014. But opposite party No.1 failed to rectify the defects of the vehicle in question rather opposite party opened the engine of the vehicle to rectify the defect. The complainant approached the opposite parties many a times and requested them to replace the vehicle in question with a new one or in the alternative to refund the price of the vehicle in question. But all in vain.  Due to the negligent act of the opposite parties, the complainant is suffering from mental and physical harassment and economic loss.  Hence the present complaint.

3.                Notice of the complaint was given to the opposite parties. Opposite party Nos.1 & 2 appeared through their L.O.  Sh.Inderpal Singh and filed joint written reply contesting the same. They took up preliminary objections that the complaint is not maintainable as no cause of action ever accrued to the complainant against them; that the complaint is bad for non-joinder of necessary parties as the complainant failed to implead the manufacturer of the vehicle i.e. Tata Motors Limited as necessary party; that the complaint is not maintainable as the vehicle in question was a commercial vehicle and was used by complainant for transportation of goods by hiring a driver; that the complainant was not using the said vehicle as per the recommendations of the manufacturer and overloading

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the vehicle as a result of which the defect accrued in the vehicle. Even then, as a goodwill gesture, the opposite parties removed the defects under warranty and that the opposite parties have provided the best services to the complainant, whenever he approached the opposite parties regarding any defect in the vehicle. The vehicle in question has run up to 10,508 K.Ms when last time the vehicle was repaired by the opposite parties. On merits, the allegations made in the preliminary objections have been reiterated. It has been pleaded that the guarantee/warranty of the vehicle is of the manufacturer of the vehicle. It has further been pleaded that on 6.10.2014 the complainant brought his vehicle with opposite party No.1 and the opposite parties found that there was a fault in the piston rings of the vehicle and was advised to get the piston replaced and the complainant told the opposite parties that he would get it replaced after some time. Thereafter on 9.10.2014, the complainant approached the opposite parties and on the permission of the complainant, the opposite parties replaced the piston rings of the vehicle and at the time of replacing the piston rings, the complainant did not make any complaint regarding any problem in the vehicle. Other allegations of the complaint have been denied and a prayer for dismissal of the complaint with costs has been made.

4.                In order to prove his case, the complainant tendered in evidence his affidavit Ex.C-1, affidavit of Des Raj Ex.C-18 and copies of documents Ex.C-2 to Ex.C-17 and closed his evidence.

5.                To rebut the evidence of the complainant, the opposite parties

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tendered affidavit Ex.OP1,2/1  and copies of documents Ex.OP1,2/2 to OP1,2/17 and closed their evidence.

6.                We have heard the learned counsel for the complainant and the Law Officer of the opposite parties and have also carefully gone through the file.

7.                On the basis of the evidence on record, the learned counsel for the complainant has vehemently contended that it is not disputed that the complainant purchased Tata SHT vehicle bearing registration No.PB-29R-2694, make Tata from opposite party No. 1 for a consideration of               Rs. 3,74,228/- on 15.04.2014. Copy of the invoice accounts for Ex.C-15. It is also not disputed that there was warranty for one year given by the opposite parties at the time of making the sale. It is proved on record that the vehicle went out of order within a small period of time and had to be taken to the workshop of the opposite parties from time to time. Copy of the service history of repairs accounts for Ex.C-3. A perusal of service history would reveal that there is manufacturing defect in the vehicle and despite repairing the vehicle time and again, it could not be made road worthy. Complainant has proved the allegations made in the complaint by filing his own duly sworn affidavit Ex.C-1, which also finds support from affidavit Ex.C-18 filed by Des Raj driver of the vehicle. The complainant had been suffering the losses due to fact that the vehicle could not be used for transport business since the day of its purchase and the loss is multiplying day by day. The matter was brought to the notice of the

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opposite parties time and again either to replace the vehicle or refund the price, but to no avail. It is, therefore, contended that the opposite parties may be directed to replace the vehicle in dispute with new vehicle of the same model and make without charging any extra money from the complainant or to refund the price of the vehicle in dispute alongwith interest besides making an order for compensation to the tune of Rs.50,000/- on account of mental agony and harassment.

8.                On the other hand, the Law officer on behalf of the opposite parties has vehemently contended that there is no manufacturing defect in the vehicle in dispute. No doubt, the complainant had brought the vehicle for repairs as per details given in the service history Ex.C-3, but, however, the defects were made good and the vehicle was perfectly in order & road worthy. It was incumbent upon the complainant to have proved manufacturing defect in the vehicle by producing some expert evidence in support of his case. But, however, no such recourse was adopted by the complainant for the reasons best known to him. Reliance has been placed upon Classic Automobiles Versus Lila Nand Mishra & Anr. 2010 (2) CPC 67, wherein it has been laid down that the onus to prove that there was a manufacturing defect was on the complainant, which it failed to discharge by producing any cogent evidence. Simply, because the car in question was brought repeatedly to the service station for minor repairs/rectifications in its workshop, could not be termed as a manufacturing defect. Further reliance has been placed upon Krishna

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Kanhaiya Gontiya Versus Tata Engineering and Locomotive Company Limited & Ors. 2011 (1) CPC 217 NC, wherein similar proposition of law was echoed.

9.                It has been further contended on behalf of opposite parties  that the vehicle in dispute was being used as a commercial vehicle and the complainant cannot be termed to be a consumer as defined under Section 2 (i) (d) of the Consumer Protection Act. The complainant has no where mentioned in the complaint that the vehicle was being used for earning his livelihood, rather there is in evidence that the complainant has engaged a driver for running the vehicle and therefore, the vehicle in dispute has to be termed to be a commercial vehicle.

10.              On the basis of the aforesaid contentions, the law officer has vehemently contended that the complainant has miserably failed to prove his case and the complaint being false and frivolous is liable to be dismissed with costs.

11                We have given thoughtful consideration to rival contentions.

12.              There is no denying the fact that the complainant purchased Tata SHT vehicle bearing registration No.PB-29R-2694, make Tata from the opposite party No.1 on 15.04.2014 vide invoice Ex.C-15. It is also not disputed that the vehicle suffered from certain break downs and had to be taken to opposite party No.2 for repairs on several occasions. Service history Ex.C-3 is there on record. However, the case of the complainant that the vehicle was having some manufacturing defect, does not appeal to

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reason. Because no expert evidence has been adduced on record by the complainant to support the said fact. Case law relied upon by the opposite parties is fully applicable to the facts of the present case and we are constrained to hold that the vehicle in dispute does not suffer from any manufacturing defect. It is however true that the vehicle suffered from certain defects and at present the same is not road worthy. The vehicle was within warranty period, which is operative from 15.04.2014 uptil 14.04.2015 and the opposite parties are under legal obligation to make the same road worthy.

 13.             Other contention of the opposite parties that the vehicle in dispute is a commercial vehicle and the complainant is not covered under the definition of a consumer, is not acceptable. No doubt the opposite parties have taken certain objections to the effect in the written reply that the vehicle in dispute is a commercial vehicle and therefore this Forum has no jurisdiction to entertain and try the present complaint. But however, no evidence has been adduced on record to prove the said fact. An affidavit of Law Officer has been adduced as Ex. O.P1,2/1, which is not specific regarding the allegations made in the written reply. A single line affidavit that the facts contained in the written reply may be read as integral part of this affidavit, will not serve any purpose. Simply because the complainant has engaged a driver to run the vehicle, does not prove that the vehicle in dispute was a commercial vehicle. There is also no evidence that besides the vehicle in dispute, the complainant was running some other

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vehicles also & was running the business of transport. In such a situation the only inference, which could be drawn, under the circumstances would be that the vehicle in dispute is not a commercial vehicle. The objection of the opposite parties that the complainant does not fall within the definition of a consumer does not stand to reason and in our considered opinion, the complainant is proved to be a consumer falling within the definition of Section 2 (1) (d) of the consumer Protection Act.   

14.              From the aforesaid discussion, it transpires that the vehicle in dispute is suffering from certain defects as pointed out in the complaint and the same was not road worthy. Since the vehicle in dispute was still within warranty period, therefore, the opposite parties are under legal obligation to make the vehicle free of all defects so as to make it road worthy to the satisfaction of the complainant, without charging any money from him. The complaint stands allowed accordingly. Opposite parties are directed to comply with the order within a period of thirty days from the date of receipt of copy of this order. The parties are left to bear their own costs. Copies of the order be sent to the parties free of cost immediately and thereafter the file be consigned to the record room.

(Bhupinder Kaur)                    (Vinod Bala)                   (S.S.Panesar)

     Member                             Member                         President

Announced in Open Forum.

Dated:09.02.2015.