BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.115 of 2017.
Date of Instt.X:01.06.2017.
Date of Decision:24 .04 .2018.
Jagdish Chander aged 64 years son of Ram Narain, resident of village Danger, Tehsil and District Fatehabad.
..Complainant
Versus
- M/s Mahindra & Mahindra Limited, Gateway Building, Apollo Bunder, Mumbai-400039 through its Chairman-cum- Managing Director.
- M/s Garg Motors, Dealer of Mahindra & Mahindra Limited, 9, K.M.Stone, Hisar Road, Near Sikandarpur Chowk, Sirsa through its Proprietor/ Partners.
- M/s Garg Motors, Opp. J.C.Mills, Sirsa Road, Fatehabad through its Proprietor/ partners.
..Respondents/OPs
Before: Sh.Raghbir Singh, President.
Sh.M.K.Khurana, Member.
Present: Sh.P.C.Sharma, Adv. for the complainant.
Sh.Vishnu Delu, Adv. for the OP No.1.
Sh.J.M.Dhariwal, Adv. for the OPs No.2 and 3.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the OPs with the averments that he had purchased a Scorpio Jeep of Mahindra & Mahindra Ltd. from the OP no.2 on 22.05.2015 for a valuable consideration of Rs.12,20,000/- and the said vehicle was registered with the Registering Authority (M.V.) Fatehabad. The OP no.2 is Authorized Dealer of Op No.1 and the said vehicle was purchased by the complainant from the office of the OPs situated at Fatehabad. Therefore the complainant is consumer of OPs as defined in the Consumer Protection Act, 1986.
2. It is further submitted that the complainant used to park the said vehicle under roof and during the period of parking the said vehicle was properly covered by the complainant. However inspite of above said fact the front body part and windows of the vehicle got affected with rust and as such the complainant took the vehicle in question to Op No.2 on 18.04.2017. After inspection of the vehicle the Op No.2 told the complainant that after removing the rust the painting will be done on the vehicle. The complainant did not accept the above said proposal as it would have resulted into loss of originality of the vehicle. From the above it is clear that a new vehicle was not sold to the complainant by the OPs.
3. It is further submitted that a legal Notice dated 03.05.2017 was got served through counsel to the OPs requesting therein to the OPs to replace the said vehicle with a new one, but all in vain.
4. It is further submitted that the above said act on the part of OPs amounts to deficiency and unfair trade practise in selling the vehicle in question to the complainant. It is further prayed that the OPs may be directed to replace the vehicle in question with a new one alongwith an amount of Rs.50,000/- as compensation on account of mental agony, physical harassment suffered by the complainant. Hence, the present complaint.
5. On being served, Op No.1 appeared and resisted the complainant by filing a written statement wherein various preliminary objections with regard to cause of action, maintainability, locus-standi, barred by limitations and territorial jurisdiction etc; have been raised.
6. In reply on merits, it is submitted that the vehicle in question was purchased by the complainant from Op no.2. However it is denied that the complainant is a consumer of OP No.1. It is further submitted that the vehicle in question was purchased on 22.05.2015 and had there been any manufacturing defect it must have surfaced during the initial days. However, the instant complaint has been filed after the passage of 2 years which means there is no manufacturing defect in the vehicle.
7. It is further submitted that the defect of rusting is not covered under warranty and it is clearly mentioned in the warranty policy that “any slight discrepancy in the paint, chrome and trim is corrected during the PDI. Deterioration of appearance items and trim, due to normal exposure or use is not covered under terms of warranty.” It is further submitted that in the present case the complainant has sought replacement of the vehicle, but in the entire complaint, the complainant has not alleged manufacturing defect and as such it is admitted by the complainant himself that there is no manufacturing defect in the vehicle. Therefore the complainant does not deserve any relief from this Forum. It is further submitted that the complainant has miserably failed to point out any deficiency in service on the part of Op No.1 and the rust in the vehicle in question has occurred due to mis-handling of the vehicle by the complainant himself.
8. The OPs No.2 and 3 also resisted the complaint by filing a joint written statement wherein various preliminary objections with regard to jurisdiction, cause of action, concealment of material facts, maintainability, estoppal etc.; have been raised.
9. In reply on merits, all the allegations made in complaint against the OPs have been denied. It is also further contended that the rust on the vehicle has occurred on account of negligence on the part of complainant and the complainant has made false pleadings in his complaint. It is also further submitted that the complainant did not serve any notice to Ops no.2 and 3 and he never approached to them with regard to defect in the vehicle as mentioned by him in the complaint. It is further submitted that the present complaint is without any merits and the same is liable to be dismissed.
10. The learned counsel for the complainant tendered in evidence affidavit of complainant as Ex.C1/A and the documents as Ex.C2 to C4, Mark A, Mark C/B to Mark C/I and closed the evidence of the complainant. On the other hand, the learned counsel for the OP No.1 tendered in evidence affidavit of Nagraj Bhatt, Authorized Signatory of Mahindra & Mahindra Ltd. as Ex.RW1 and document as R1 and closed the evidence.
11. The learned counsel for the complainant in his arguments reiterated the averments made in the complaint and further contended that the complainant used to park the vehicle in question under a roof and also the same was properly maintained. However in spite of the above fact front body part and windows of the vehicle got affected with rust within the warranty period. From Mark-A i.e. document issued by the OPs it is evident that the vehicle in question was affected with rust. It is further contended by the learned counsel that the vehicle in question was affected by rust on account of manufacturing defect in the vehicle or an old car was sold to the complainant by the OPs. The above said act on the part of OPs amounts to deficiency and unfair trade practice. Therefore the OPs may be directed for replacement of the vehicle in question. The learned counsel in support of his case has relied upon the judgment titled as Ramnath Mishra Vs. Bharat – Corporation & others rendered by U.P. State Commission and cited as 1(2017) CPJ Paged 135 and the judgment rendered by Hon’ble Supreme Court in case titled as Momna Gori Vs. Regional Manager and cited as 1(2017) CPJ Page 11.
12. On the other hand the learned counsel for the OPs rebutted the arguments advanced by the learned counsel for the complainant and reiterated the averments made in the written statement filed by the OPs. It is further contended by learned counsel that there is no expert opinion or any other cogent and convincing evidence to prove that the vehicle in question was having an inherent manufacturing defect. In absence of expert opinion it cannot be concluded that the vehicle in question was suffering from manufacturing defect. It is also further contended that the defect of rust is not covered under the warranty because rusting on the vehicle depends upon various external factors such as climatic conditions, parking, kind of water used for cleaning and washing. It is also contended that the vehicle in question was defected by rust on account of negligence and poor maintenance on the part of complainant himself. It is further contended that the present complaint is without any merits and the same deserves dismissal.
13. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record. Vide the present complaint the complainant has sought replacement of the vehicle in question with a new one on the ground that the said vehicle got affected with rust and an old vehicle was sold by the Ops to the complainant. In support of his contention the complainant has relied upon the document as Mark A issued by the OPs wherein in the column of Remarks it is mentioned that the vehicle needs repaint on the rust affected area. No doubt, on the basis of Mark A the complainant has been able to prove that defect/ rust had occurred in the vehicle. However the complainant has not placed on record any expert opinion or other cogent, credible or convincing evidence to prove that the said defect has occurred on account of manufacturing defect or an old vehicle has been sold to him as alleged by him in the complaint. The question as to whether the vehicle in question was having a manufacturing defect or an old vehicle was sold to him by the OPs was to be proved by the complainant through cogent, convincing and adequate evidence supported by an opinion of automobile engineer/ expert/ mechanical engineer that the vehicle in question suffered from inherent manufacturing defect or an old vehicle was sold to him. In our opinion the report of mechanical/ automobile engineer is essential so as to enable this Forum to come to the conclusion as to what was the defect persisting in the vehicle and whether that defect was actually inherent manufacturing defect or minor defect, which was the result of minor wear and tear, improper maintenance of the vehicle. It is a settled proposition of law that a vehicle can only be ordered to be replaced in case there is inherent manufacturing defect in the vehicle.
14. In case titled as Jose Philip Mampillil Vs. premier Automobiles Ltd. & Anr. (cited as 2001(1) CPJ Page 9(SC) and Maruti Udhyog Ltd Vs. Susheel Kumar Gasajofra 2006(2) CPJ Page 3 (SC) the Hon’ble Apex Court laid down that the manufacturer could not be ordered to replace the car or refund its price merely because some defect, appear which could be rectified or defective parts could be replaced under warranty. Similar principal of law was laid down in Chandeshawar Kumar Vs. Tata Engineering Loco Motive Comp. Ltd. 2007(1) CPJ Page 2, M/s E.I.D. Parry (India) Ltd. Vs. Baby Bangamen Thushava 1(1992) CPJ 279 (N.C) a case decided by four member bench of National Consumer Disputes Redressal Commission, New Delhi and Sushila Automobiles Pvt. Ltd. Vs. Dr.Binrender Narayan Parsad 2010(111) 130(NC).
15. In view of the aforesaid discussion we are of the considered opinion that the case of the complainant for replacement of the vehicle in question is not made out. The Judgments relied upon by the learned counsel for the complainant are not applicable in the present case as the facts of the present case are different and distinguishable from the facts of the law cases relied upon. However as discussed above the complainant has been able to prove defect i.e. affect of the rust on the vehicle.
16. In Jose Philip Mampillli Vs. Premier Automobiles (supra) the Hon’ble Apex Court has held where the defects in various parts of the car are established, replacement of entire car of refund of price is not called for but direction can be given for rectification of the defects and replacements of defective parts. In view of the said judgment the OP No.1 being manufacturer is directed to repaint the whole vehicle. The complainant shall take vehicle to the workshop of OP No.1 within a period of one month after receipt of the copy of this order and Op no.1 shall be bound to repaint the whole vehicle like a new one within a period of two weeks free of costs. The OP No.1 is also further directed to pay a compensation of Rs.10,000/- to the complainant within a period of one month from the receipt of copy of present order otherwise an interest @ 6% per annum will have to be paid by the OP No.1 from the date of order till realization. No deficiency is proved against Ops No.2 and 3 and as such the present complaint against them is dismissed. A copy of this order be supplied to all the parties free of cost. File be consigned to record room after due compliance.
ANNOUNCED IN OPEN FORUM. Dt.24.04.2018
(M.K.Khurana) (Raghbir Singh)
Member President
DCDRF, Fatehabad
