BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 21st day of December 2013
Filed on : 29/12/2011
PRESENT:
Shri. A. Rajesh, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member
CC.No. 725/2011
Between
Akbar Badhsha, : Complainant
S/o. P.M. Muhammed, (By Adv. George Cherian
Palco Pack Pvt. Ltd., Karippaparambil, HB.48,
13/569, KC. Road, Chullikal, Panampilly Nagar, Kochi-
Cochin-5. 682 036.
Vs
1.M/s. Mercedes-Benz India Pvt. Ltd., : Opposite parties
E-3, MIDC Chakan, Phase 3, (1st O.P. by Adv. P. Ramakrishnan
Chakan Industrial Area, Sreesadan, Azad Road, Kaloor,
Kuruli & Nighoje, Tal.: Khed, Cochin-17)
Pune-410 501.
2.M/s. Rajasree Motors Pvt. Ltd., (party-in-person)
2/393 @, N.H. 47,
Near Kundanoor, KL,
Cochin-682 304.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant purchased a Mercedes Benz car from the 2nd opposite party on 12-09-2011 which was manufactured by the 1st opposite party. The complainant’s car is having inherent manufacturing defects and could not be plied. The complainant had to approach the 2nd opposite party on 24-09-2011, since the bonnet was not opening. On 27-09-2011 the complainant found a crack on the front wind shield glass. The complainant brought the car to the 2nd opposite party and they opined that the same has been damaged from external impact and so there is no warranty coverage. The 2nd opposite party had issued a preliminary estimate of Rs. 73,230/- towards repair charges. The complainant objected to it since the damage caused to the front wind shield glass was due to inherent manufacturing defect. The 2nd opposite party has suggested repair by claiming insurance, but it was not acceptable for the complainant. The complainant caused a lawyer notice to the opposite parties claiming repair of the car free of cost to which there was no response and so the complainant had to repair the same by paying Rs. 64,612/-. Thereafter the opposite parties issued reply to the lawyer notice raising untenable contentions. The complainant is entitled to get refund of Rs. 64,612/- with interest together with a compensation of Rs. 90,000/- and Rs. 10,000/- towards costs of the proceedings. This complaint hence.
2. The version of the 1st opposite party is as follows:
As per the warranty terms in the event it is found that customer’s vehicle suffers from any manufacturing defect during warranty period, such defective part is either repaired or replaced free of charge. The complainant’s vehicle had visited the workshop on 29-04-2011 with the complaint of bonnet not opening. It was properly attended to and the vehicle was returned on the same day. The present case pertains to the damage caused to the windshield. The technical expert of the 1st opposite party inspected the front wind screen broken glass and he concluded that there was impact mark which clearly shows the external impact and it is not a manufacturing defect as alleged by the complainant. The expert has taken photographs of the front broken wind screen clearly indicating the external impact mark due to external impact. As per standard warranty terms and conditions of the 1st opposite party glass damages like breakage
and scratches are not covered. The complaint lacks merits and is liable to be dismissed.
3. The defense of the 2nd opposite party is as under.
The complainant purchased the vehicle for official use and not for his personal use and as such he will not come within the definition of consumer under section 2 (1) (d) of the Consumer Protection Act. The complainant purchased the car from the 2nd opposite party on 12-09-2011. On 24-09-2011 the complainant had made a complaint with regard to the opening of the bonnet of the vehicle, the same was set right forthwith. The vehicle was brought to the workshop of the 2nd opposite party on 27-09-2011 and on examination it was found that the wind shield was damaged on account of external impact. The complainant replaced with wind shield without any objection and the vehicle was delivered to the complainant to his full satisfaction. There is no negligence or deficiency in service on the part of the 2nd opposite party. The complaint is liable to be dismissed.
4. The complainant was examined as PW1 and Exbts. A1 to A6 were marked on his side. No oral evidence was adduced by the 1st opposite party, Exts. B1 and B2 were marked on their side. The witness for the 2nd opposite party was examined as DW1 and Exbts. B3 to B6 were marked on their part. Heard the learned counsel for the parties.
5. The points that enunciated for consideration are as follows:
i. Whether the complainant is a consumer within the ambit of the
Consumer Protection Act?
ii. Whether the complainant is entitled to get refund of Rs. 64,612/-
being the amount incurred by him towards replacement of
windshield.
iii. Whether the opposite parties are liable to pay compensation and
costs of the proceedings to the complainant?
6. Point No. i. The 2nd opposite party contended that the complainant purchased the vehicle in the name of a company and uses the same for his personal purposes and so he is not a consumer within the purview of the Consumer Protection Act. We are not to agree with the contention only because of the reason that the car is purchased by a company and it is used by its Director for his personal purposes. The Hon’ble National Consumer Disputes Redressal Commission in Controls and Switch Gear Co. Ltd. Vs. Daimler Chryster India Pvt. Ltd. & Anr IV (2007) CPJ 1 (NC) held that, “ In our view there is no substance in the aforesaid contention because i. Company is a legal entity and is entitled to file complaint. ii. The cars are purchased for the use of directors and are not to be used for any activity directly connected with commercial purpose of earning profit. Cars are not used for hire but are for the personal use of the Directors. Hence it can’t be said that the complainant company has purchased the cars for commercial purpose”. Relying on the decision and following it we are of the opinion that the complainant is a consumer under Consumer protection Act. The point is found in favour of the complainant.
7. Point No. ii. It is not in dispute that the complainant is the proud owner of a Mercedes Benz E Class car bearing Regn. No. KL-43C 8888. It is also not in dispute that the complainant purchased the car from the 2nd opposite party on 12-09-2011 which was manufactured by the 1st opposite party. Admittedly 24 months warranty has been provided by the 1st opposite party for the vehicle evidenced by Ext. B1 warranty terms and conditions. On 24-09-2011 the complainant approached the 2nd opposite party with the complaint ‘ bonnet not opening’, the same was duly attended to and rectified by the 2nd opposite party immediately. Thereafter on 27-09-2011 the complainant approached the 2nd opposite party when he noticed a crack on the front wind shield which according to him was caused due to its manufacturing defect. The opposite parties vehemently and vigorously refuted the said averment and contended that the said defect was caused due to external impact which is not covered under Ext. B1 warranty. In spite of that the complainant replaced the wind shield by paying Rs. 64,612/- on his own evidenced by Ext. A6 receipt.
8. Now the question would arise whether the complainant is entitled to get refund of Rs. 64,612/- which he had expended to replace the wind shield. Neither parties did take any steps to obtain an expert opinion with regard to the defect of the wind shield. The complainant is of the view that since the defective wind shield is in possession of the 2nd opposite party they are liable to prove that the same was damaged due to external impact. The 2nd opposite party maintains that they have returned the defective wind shield to the complainant and the onus is on the complainant to prove the manufacturing defect of the wind shield. Indisputably the 2nd opposite party redelivered the vehicle to the complainant on 28-10-2011 after replacing the wind shield. Ext. B6 is the gate pass issued by the 2nd opposite party at the time of redelivery on 28-10-2011 in which the complainant acknowledged the following “ I have examined/test driven the car while taking delivery. I confirm to have received the car in good and satisfactory condition along with replaced parts”. Exbt. B6 was admitted in evidence without demur. So we are of the firm view that the complainant is in possession of the defective wind shield since 28-10-2011 and he has to carry the ball in proving the manufacturing defect of the wind shield in which evidently he failed. So naturally the claim of the complainant does not fall within the warranty as per ext. B1. Though the complainant stated in the complaint that the vehicle suffers from manufacturing defects and the vehicle could not be plied, nothing is in black and white on record to substantiate the same. In short since the complainant failed to prove the manufacturing defect of the wind shield, we are only to hold that the complainant is legally not entitled to get refund of the amount which he had incurred for the replacement of windshield Therefore the complainant failed to prove his contention in this forum. The same is rejected hence.
9. Point No. iii. Since the above point is found against the complainant the prayer for compensation and costs of the proceedings can’t be allowed.
10. In the result, we are only to dismiss the complaint. Ordered accordingly.
Pronounced in the open Forum on this the 21st day of December 2013.
Sd/-A. Rajesh, President.
Sd/- Sheen Jose, Member.
Sd/-Beena Kumari V.K., Member.
Forwarded/By Order,
Senior superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of lawyer notice
A2 : Copy of postal receipt
A3 : A.D. card
A4 : Copy of lawyer notice dt. 28-11-2011
A5 : Copy of lawyer notice dt. 29-10-2011
A6 : Copy of receipt dt. 28/10/2011
A7 : Copy of letter dt. 29-09-2011
Opposite party’s exhibits:
Ext. B1 : Copy of Warranty terms and conditions
B2 : Copy of brochure
B3 : Copy of pre Order
B4 : Workshop Order
B5 : Tax Invoice
B6 : Gate Pass
Depositions
PW1 : Akbar Badhsha
DW1 : Harish P.B.
