BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.446 of 2014

Date of Instt. 19.12.2014

Date of Decision :15.10.2015

Om Dutt Joshi aged about 62 years son of Bhagat Ram Joshi R/o H.No.28, Ashok Nagar, Maqsudan, District Jalandhar.

..........Complainant Versus

1. M/s Makkar Motors Pvt Ltd, through its Managing Director Office at GT Road, Pragpur, Jalandhar.

2. M/s Mahindera and Mahindera Ltd, through its Managing Director, Office at Mahindera Tower, 3rd Floor Akurli Road, Andibali (East) Mumbai.

.........Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Rahul Sharma Adv., counsel for complainant.

Sh.Rakesh Dhir Adv., counsel for opposite party No.1.

Sh.Chandan Deep Singh Adv., counsel for OP No.2.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant purchased a vehicle bearing Chasis No.MAIPS2GPK DSA42696 engine No.GPD4A 57027 model Bolero white from the opposite party No.1, who is authorized dealer of opposite party No.2. The said vehicle was purchased on 6.2.2013 vide its invoice issued by opposite party No.1 and the delivery challan dated 6.2.2013. The temporary registration No.PB-08/Temp/BM/2256 was allotted to the above said vehicle and after the registration of the vehicle the number was alloted PB-08-CG-6135 by DTO Jalandhar. The complainant got regular service of the vehicle. From the last year complainant noticed that the vehicle mentioned above is having some defect in the paint at the bonnet of the vehicle and other parts of the chasis, complainant reported the matter to the opposite party No.1 but after inspection the staff of the opposite party No.1 alleged that this is due to moisture. And the opposite parties advised the treatment, which was done at Sterling Motor Co., Sect.-17/18, Gurgaon. Now again the trouble started on the window sites and on number of spots on the vehicle but the alleged staff of the opposite party No.1 did not give any satisfactory answer nor remove the trouble. The body of the vehicle in question has started rusting and the bonnet and windows etc from the front has been totally damaged. The complainant has shown the body of the vehicle in question to number of experts and according to them there is manufacturing defect regarding the manufacturing and fabrication of the body of the vehicle. The paint from the body of the vehicle was done without clearing the rust on the sheet from which the body was fabricated. On such like averments, the complainant has prayed for directing the opposite parties to replace the defective vehicle. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared but opposite party No.1 did not file any written reply inspite of number of opportunities afforded to it for this purpose and as such it was debarred from filing any written reply.

3. In its written reply, opposite party No.2 i.e manufacturer of the vehicle pleaded that its relation with opposite party No.1 i.e dealer is on principal to principal basis and it not aware of the ultimate customer of the dealer and there is no privity of contract between opposite party No.2 and ultimate customer of the vehicle. The defect in the complaint for the first time has been reported on 2.5.2014, admittedly the date of sale of the vehicle is 6.2.2013. It would be pertinent to mention that complainant has reported the concern at Sterling Motors at Gurgaon and very surprisingly has not impleaded them as party in this case. The alleged defect in paint has been reported after one year of the sale of the vehicle. Firstly, it is relevant to point out that problem of rusting is not covered under warranty. 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 vehemently denied that vehicle is having any manufacturing defect, because there is rusting in the vehicle. The complainant has alleged that he had word with experts and they have opined that there is a manufacturing defect. Very surprisingly, complainant has not attached or annexed any such report which states that the vehicle is having a manufacturing defect. The bald statement without corroboration from any conclusive evidence is a vague and baseless statement and can not be taken seriously. Moreover, the qualification and whereabouts of such expert has not been disclosed thus, such an allegation of manufacturing defect is not only vague but is also baseless and frivolous. Therefore, the complaint is liable to be dismissed out rightly. It would be pertinent to mention that life of body paint of the vehicle is subject of natural deterioration, wear and tear due to usage, environmental effects, type of water used to clean, use of enhancers such as polishes, creams etc therefore, such defect has not been covered under warranty, even otherwise the vehicle of the complainant is out of warranty when the defect has been reported. Had there been any manufacturing defect then it would have surfaced in the first month or by two-three months from purchase and would not have taken 14 months to surface. Despite all these facts, opposite party No.2 in view of its customer centric approach has approved FOC work for his vehicle but the complainant has not cooperated with the Sterling Motors, further it is submitted that all the details are not known to opposite party No.2 because complainant has deliberately not impleaded Sterling Motors as a party in the case. Thus, in view of the above stated facts the complaint of the complainant is misconceived and frivolous and is therefore, liable to be dismissed. It also took preliminary objections regarding jurisdiction, non joinder of necessary party, want of cause of action etc.

4. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C8 and closed evidence.

5. On the other hand, learned counsel for the opposite party No.1 has tendered affidavit Ex.OP2/A alongwith copies of documents Ex.OR-1 to Ex.OR-3 and closed rebuttal evidence. Further learned counsel for opposite party No.2 has tendered affidavit Ex.OA and evidence of the opposite party No.2 was closed by order.

6. We have carefully gone through the record and also heard the learned counsels for the parties.

7. The complainant purchased the vehicle in question from opposite party No.1 at Jalandhar. So this forum has territorial jurisdiction to try and decide the present complaint. The vehicle was purchased on 6.2.2013 as is evident from delivery challan Ex.C2 issued by opposite party No.1 in favour of the complainant. The complainant is alleging manufacturing defect in the vehicle as rust has started appearing at some places over the body of the car. The complainant has not examined any expert witness to prove that there is manufacturing defect in the vehicle or its body. In para 2 of the complaint, the complainant has stated that he has shown the body of the vehicle in question to number of experts, according to them there is manufacturing defect regarding the manufacturing and fabrication of the body of the vehicle but he has not examined any such expert witness. Ex.R2/1 contains the terms and conditions regarding standard warranty. Condition No.2 lays down as under:-

"2. 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 the terms of warranty".

8. So as per above condition any slight discrepancy in the paint etc and further deterioration of appearance items and trim, due to normal exposure or use are not covered under the terms of warranty. From the evidence on record, it is not clear if the appearance of rust at some site as alleged by the complainant is due to normal exposure or use of the vehicle or due to any manufacturing defect in it. Simply after seeing the photographs produced by the complainant, it can not be held that there is manufacturing defect in the vehicle or its body. The complainant has failed to prove the manufacturing defect by leading any expert evidence.

9. In view of above discussion, we hold that there is no merit in the present complaint and same is here by dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

15.10.2015 Member Member President