Haryana

Karnal

576/2011

Saurabh Gupta S/o Jai Kishan Gupta - Complainant(s)

Versus

M/s Malwa Automobiles Pvt ltd - Opp.Party(s)

Sh. R.C. Goyal

06 Jan 2016

ORDER

        

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                                                                Complaint No.576 of 2011

                                                          Date of instt.: 13.09.2011

                                                          Date of decision:06.01.2016.

 

Saurabh Gupta son of Jai Kishan Gupta,  Proprietor of M/s Shri Balaji Machinery Store Market Committee Road, Karnal.     

                                                            ……..Complainant.

                                      Vs.

1.Malwa Auto Mobiles Pvt.Ltd.(Tata Motors) NH-119/4, Kilometer Stone, GT Road, Karnal through its Manager.

2.Fiat India Auto Mobiles Limited B-19, MIDC Rajangaon Tal.Shirur, District Pune 412210 through its Managing Director/Partner.

                                                                          ………  Opposite Parties.

                                  Complaint u/s 12 of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……….President.                

                   Sh.Anil Sharma…….Member.

 

Present:-        Sh.R.C.Goyal Advocate for the complainant.

                             Sh.C.J.Wadhwa Advocate for the Opposite Party No.1

ORDER:

                           This  complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that  he purchased one Fiat Punto  Car bearing chasis no. MCA 11835507001548 EPZ, engine No.0026900  for a sum of Rs.5,57,623 on 21.9.2009 from the Opposite Party No.1. The said car was carrying guarantee/warranty of two years. Now registration number of the said car is HR-05Z-2228. Since  the very beginning, there was manufacturing defect in the engine and other parts of the car and the same stopped on the way a number of times. In that regard he visited Opposite Party No.1 for service and repairs, but the Opposite Parties  did not  rectify the problems permanently, because there was manufacturing defect in the car. He visited the Opposite Parties on 1.10.2009, 3.2.210, 3.4.2010, 25.8.2010, 31.10.2010, 7.2.2010, 5.3.2010 and lastly on 14.5.2011. Due to manufacturing defect in the car, the same consumed more mobil oil from very beginning and its average was very low.   He even made complaints to Opposite Party no.2 at Customer Care Centre for attending his complaints, but the Opposite Parties refused to repair the car properly or replace the same. In this way, there was deficiency in services on the part of the Opposite Parties, which caused him mental pain and harassment apart from financial loss.

2.                 Notice of the complaint was given to the Opposite Party No.1, who put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that  the complaint is not maintainable; that the complainant has no loucs standi and cause of action to file the present complaint; that the complaint is bad for mis joinder and non joinder of the necessary parities; that the complaint is an abuse of the process of law and that the complaint is  false and vexacious to the knowledge of the complainant.

                   On merits, it has been denied that there is manufacturing defect in the engine and other parts of the car. It has been submitted that due to accident oil sump of the car was damaged and dent/accidental hit mark was visible on the sump.  Small quantity of fine dust was observed near HFM sensor  and intake pipes due to which turbo chamber compressor  blades were  damaged and on account of that oil leaked from  turbo chamber. The turbo charger seal was replaced and  thereafter there was no leakage of oil. After a long period of repairs, the complainant obtained delivery of the car. There was no deficiency in services on the part of the Opposite Party. The other allegations made in the complainant have been specifically denied.

3.                 The Opposite Party  no.2 was impleaded, vide order dated 31.1.2012. Notice of the complaint was given to the Opposite Party No.2 through registered cover which was duly served, but none appeared on its behalf. Therefore, exparte proceedings were initiated vide order dated 1.05.2012.

3.                 In evidence of the complainant, his affidavit Ex.C1 , affidavit of Sh.Kishan Gupta Ex.C2 and documents Ex.C3 to Ex.C11 have been tendered.

4.                 On the other hand, in evidence of the Opposite Party no.1, affidavit of Sh.S.K.Malhotra Manager, Ex.O1 and documents Ex.O2 to Ex.O17 have been tendered.

5.                 We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned Counsel for the parties.

6.                 The complainant purchased one Fiat Punto Car from the Opposite Party No.1 On 21.9.2009. It has been alleged that there is manufacturing defect in the engine and other parts of the car. He had taken the car to Opposite Party No.1 several times for repairs, but neither the car was repaired fully nor replaced. The Opposite Party No.1 has  denied the allegations of the complainant that there is manufacturing defect in the engine and other parts of the car.

7.                 The Learned counsel for the complainant vehemently argued  that car of the complainant was giving trouble since  the very beginning and the complainant had to visit the Opposite Party No.1 a number of times for repairs of the same, as is evident from Ex.C4 to Ex.C11, but neither the car was fully repaired nor replaced.  He has further contended that from the report of Automobiles Expert Sh.Mahesh Kalra, Ex.C12, it is established that there is manufacturing defect in the car. Moreover, the car was repeatedly taken to the service station of the Opposite Party No.1  for repairs, therefore, it must be assumed that there is manufacturing defect in the car. Accordingly, the complainant is entitled to get replaced the car with a new one alongwith compensation for mental agony and harassment  .  In support of his contention, he  placed reliance on  Krishanpal Singh Vs.Tata Motors 2014(3) CLT 177.

8.                 A perusal of the Ex.C12 shows that Mahesh Kalra, Automobiles Engineer, surveyor and loss assessor, examined the car of the complainant alongwith replaced half assembly on 1.10.2014 i.e. after five years of the purchase of the car. The car had already run 1,30,244 KMs till that date. He found that one big  end bearing and crank shaft   were badly seized due to  starvation of engine oil and there was some manufacturing defect which consumed engine oil reducing the level of the engine oil.  He opined that engine assembly was seized due to reducing level of engine oil which might be consuming engine oil in the combustion chamber due to some manufacturing defect. It is pertinent to note that he has not pointed any manufacturing defect in the engine assembly. Had there been any manufacturing defect in the engine assembly, the car could not be used for a period of five years and it was not possible to run the same for 1,30,244 KMS. The level of engine oil in the combustion chamber could  reduce due to various reasons and not on account of any manufacturing  defect in the engine assembly. Under these circumstances no importance can be attached to the report of  expert Ex.C12 and the same is not sufficient to arrive at the conclusion that there was manufacturing defect in the engine.

9.                 The complainant has also produced the service job sheets Ex.C4 to Ex.C11. The car was purchased on 21.9.2009. Ex.C11 shows that he had taken the car to  Opposite Party No.1 for free service on 1.10.2009 and the complaint he lodged was  that windshield wipers not working properly. Ex.C10 shows that after using the car for 2378KMs, the same was taken to the service station of Opposite Party No.1 on 20.11.2009 and the complainant made the complaint that washer spray was not  proper and head light focus was improper. Again after using the car for 7978 KMs,  on 3.2.2010, he complained that washer spray was not proper. According to Ex.C9, after using the car for 14489 KMs on 3.4.2010, the complainant made complaint that head light focus was improper.  On 14.6.2010, he made complaint that head light focus was improper and the car pulled to one side.  Ex.C8 indicates that on 21.7.2010, the complainant made complaint that there was  cold starting  problem and wind shield wiper not working properly.  On 31.7.2010 he made complaint that clutch was hard.  On 25.8.2010 there was complaint of  gear lever rattling. As per Ex.C7,  on 7.9.2010  the complainant made complaint that gear slips and check engine light come on.  On 22.8.2010, the car was repaired for some accident. Ex.C6 shows that on 22.12.2010 running repairs were made only and there was no complaint.  On 7.2.2011 the complainant made complaint that door noisy on   closing, improper image in mirror and problem in the door locks. According to Ex.C5, on 5.3.2011, there was complaint of leakage hard miscellaneous and power window not working properly. Ex.C4 goes to show that on 14.4.2011 and 14.5.2011, there were miscellaneous complaints.  On 5.7.2011, some  accidental repairs and on 3.8.2011 miscellaneous complaints.

10.     The document Ex.O3 shows that car was brought by the complainant to workshop of Opposite Party No.1 on 19.8.2011 with the complaint of engine oil leakage.  As per joint inspection report dated 17.9.2011, the copy of which is Ex.O2, there was heavy dent/hit mark on the sump, small quantity of fine dust  was observed near HFM sensor and intake pipes turbo chamber compressor blades were damaged.  Engine oil sump was changed and other necessary repairs were carried out. The complainant gave even satisfaction report, the copy of which is Ex.O4  that necessary repairs were carried out by the Opposite Party No.1 and he had even taken test drive of the car, which was found trouble free.  On  6.12.2011, the car was again brought to the workshop for repairs. He was told that repair could be carried out on paid basis and his permission was required. Letters, the copies of which are Ex.O5 and Ex.O6 were sent to him in that regard. The Opposite Party No.1 has also produced photographs  Ex.O7 to Ex.O17 regarding checking of leakage of engine oil, hit/dent mark on the sump and replacement of the sump. These documents make it  quite clear that  there was leakage of engine oil due to dent in the sump i.e. combustion chamber and not on account of any manufacturing defect.

11.               The aforediscussed evidence of the parties, make it  emphatically clear that till 19.8.2011, the complainant never made any complaint regarding leakage of engine oil or consuming more engine oil and reducing the level of engine oil in  combustion chamber due to some manufacturing defect.  Even on 19.8.2011, it was found that leakage in the engine oil was on account of dent/hit mark in the sump. Small quantity of fine dust was observed near HFM sensor intake pipes and due to that turbo charger compressor blades were changed. Thus, the  leakage was due to accidental  damage and the oil was leaked from turbo charger seal.  Had there been any manufacturing defect in the car and the engine oil used to reduce on account  of such  manufacturing defect,  then it could not be possible to use the car for covering 1,30,244 KMs during the period of five years. There is no dispute regarding the observations made by the Hon’ble National Commission in Krishanpal Singh’s case(Supra), but the same does not render any help to the complainant under the facts and circumstances of the present case. The documents Ex.C4 to Ex.C11 produced by the complainant do not prove that the car was taken to the workshop of Opposite Party no.1 a number of occasions on account of leakage of engine oil or reducing the level of engine oil in the combustion chamber on account of some manufacturing defect. Therefore, it cannot be assumed that there was manufacturing defect in the car.

12.               In view of the afore discussed facts and circumstances of the case, we have no hesitation in concluding that the complainant has altogether failed to establish that there is manufacturing defect in the car and on account of such manufacturing defect, the level of the engine oil used to reduce in the combustion chamber. The car was taken to the workshop of Opposite Party no.1 for service purposes , removing problems and check up.

13.               As a sequel to the foregoing discussion, we do not find any merit in the present complaint. Consequently, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:06.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

             (Anil Sharma ) 

                    Member.

 

 

Present:-        Sh.R.C.Goyal Advocate for the complainant.

                             Sh.C.J.Wadhwa Advocate for the Opposite Party No.1

 

                        Heard on the application of the  complainant for additional evidence. In view of the facts and circumstances, the application is allowed. Accordingly documents, produced by the complainant are ordered to be exhibited as Ex.O12 and Ex.O13. Arguments heard. For orders,  to come upon 6.1.2016.

Announced
dated:05.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

             (Anil Sharma ) 

                    Member.

 

Present:-        Sh.R.C.Goyal Advocate for the complainant.

                             Sh.C.J.Wadhwa Advocate for the Opposite Party No.1

                       Vide our separate order of the even date, the present complaint has been dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
dated:06.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

             (Anil Sharma ) 

                    Member.