BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.132 of 2015

Date of Instt. 30.03.2015

Date of Decision: 24.05.2017

Davinder Kapila, aged about 41 years, son of Shri Joginder Lal Kapila, resident of 1317/3, Street No.4, Baba Budha Ji Nagar, Rama Mandi, Jalandhar.

..........Complainant

Versus

1. M/s Mahindra Navistar Automotive Limited, Badalpur, Mumbai through its Director/Managing Director/Authorized person.

2. M/s Raga Motors Pvt. Ltd., G.T. Road, Paragpur, District Jalandhar through its Director/Managing Director/Manager/Authorized person.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh, (President)

Sh. Parminder Sharma (Member)

Present: Sh. SS Namdhari, Adv Counsel for the complainant.

Sh. Chandandeep Singh, Adv Counsel for OP No.1.

Sh. VK Singla, Adv Counsel for OP No.2.

Order

Karnail Singh (President)

1. The instant complaint presented by complainant, wherein alleged that the complainant was in need of four wheeler car in SUV segment for his personal use and occupation. The OP No.1 is the manufacturer and OP No.2 is dealer of Mahindra and Mahindra vehicles and accordingly, the complainant approached the OP No.2 for the purchase of the car/vehicle having model Bolero ZLXC (White). In pursuance of the above said need, the complainant purchased a vehicle model Bolero ZLXC (White) having Chassis No.MA1XX2GPKE5B49529, Engine No.,GPE4B82702, White Colour from the OPs vide bill bearing No.10624 dated 26.03.2014 for a total amount of Rs.7,39,000/-. In addition to the above said amount, the complainant also paid the amount for the temporary certificate of registration. The said car/vehicle was purchased on 26.03.2014. The said car was being used by the complainant for his personal needs. The said vehicle is duly insured with Bajaj Allianz General Insurance Company Limited on 26.03.2014. That after just 2-3 days of purchase of above said vehicle, the said vehicle started giving trouble as there is some defect in the engine. The complainant intimated the defect to the OP on 02.04.2014 and the official concern of the OP assured the complainant that the defect will be removed shortly and vehicle was taken to the workshop of OP No.2. Thereafter, after some days, the vehicle was got delivered to the complainant with an assurance that the defect has been rectified and as per assurance, the complainant took the vehicle, but thereafter, time and again the vehicle started creating problems and the OP No.2 was time and again called to rectify the defect in the engine of the car. The complainant was made to run from pillar to post, but to no effect, the said vehicle was not repaired as it got some inherent manufacturing defect in the engine of the car. The complaints were lodged with the OPs to rectify the inherent manufacturing defect in the vehicle and the complainant was assured that the grievance would be redressed within 48 hours, but after numerous follow up, the OPs did not move an inch towards redressal of complaint. The complainant had to suffer immense loss on account of manufacturing defect in the car. Then on 19.05.2014, the complainant approached and requested the OP No.2 either to rectify the inherent manufacturing defect in the car or to replace the vehicle with a new one, but all fell on deaf ears and then the complainant served a legal notice dated 21.05.2014 upon the OPs, but to no effect and it is clear that the OPs are guilty of practicing unfair trade practice and deficiency in services and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay an amount of Rs.90,000/- alongwith interest @ 18% per annum from the date of its purchase and further pay Rs.2,00,000/- as mental and physical harassment caused to the complainant and also pay litigation expenses of Rs.15,000/-.

2. Notice of the complaint was given to the opposite parties and accordingly both the OPs appeared and OP No.1 filed its written statement wherein took preliminary objection that the allegations in this complaint are vague and frivolous. The complainant has miserably failed to point out any defect in the vehicle. There is no evidence placed on record that complainant has reported the defects time and again at the dealership. It is absolutely a made story and far from truth. As a matter of fact, the alleged defect has not been reported at dealership and vehicle has run more than 40000 KMS in one year which in itself proved that the vehicle has no defect because a vehicle with an inherent manufacturing defect in the engine cannot be used so extensively. Thus, the filing of the complaint is abuse of process of Court as well as abuse of process of law, therefore, the instant complaint is liable to be dismissed with exemplary costs. Even the complainant has not got any expert opinion to establish any manufacturing defect and further averred that the complainant has suppressed the material facts from the Forum and as such the complainant is not entitled to any relief. On merits, it is admitted that the vehicle has been purchased by the complainant from OP No.2 but the remaining allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant may be dismissed.

3. OP No.2 also filed its separate reply whereby contested the complaint by taking preliminary objection that the complaint is not maintainable and even the complainant has not come to the Forum with clean hands and is guilty of suppressing the true and material facts and further alleged that the complaint is bad fro mis-joinder of the parties. The answering OP has been dragged into present litigation un-necessarily and the name of the OP No.1 is also not mentioned correctly and further alleged that the allegations in the complaint are totally vague and ambiguous and confusing. On merits, it is admitted that the complainant approached the answering OP for purchase of the Car and accordingly purchased the said vehicle but remaining allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merit and same may be dismissed.

4. In order to prove the case of the complainant, complainant himself tendered into evidence his duly sworn affidavit Ex.C-A alongwith some documents Ex.C-1 to Ex.C-13 and closed his evidence and in additional evidence, the counsel for the complainant further tendered into evidence affidavit of Hardeep Singh Son of Harjinder Singh, Mechanic as Ex.CB.

5. Similarly, counsel for the OP No.1 tendered into evidence affidavit Ex.RW-1 and a document Ex.R1/1 and thereafter evidence of the OP No.1 was closed by order, vide order dated 29.04.2016. Then counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A and Ex.OP2/B alongwith document Ex.OP2/1 and closed the evidence of OP No.2.

6. We have heard the learned counsel for the respective party and also gone through the case file very minutely.

7. The basic allegations of the complainant are that he purchased a new vehicle i.e. Car model Bolero ZLXC white colour on 26.03.2014, after making a payment of Rs.7,39,000/- and the said vehicle was got insured on the same day but after 2-3 days of the purchase, the said vehicle started giving problem in the engine and regarding that factum, the intimation was given to the OP on 02.04.2014 who rectified the defect and handed over the vehicle to the complainant but it was found that the said problem is still there which shows that there is inherent manufacturing defect in the vehicle and to establish the said inherent defect, the complainant has examined Hardeep Singh, Mechanic whose affidavit is Ex.CB, wherein he alleged that he is a mechanic of four wheeler and was working with Raga Motors. He has checked the vehicle in question many time and found that there is a defect in the vehicle which can not be rectified. The vehicle is defective since its manufacturing. Apart from this evidence of the mechanic, there is no expert evidence of the complainant to prove that there is any manufacturing/inherent defect in the vehicle in question.

8. First of all, we have to see the status of the aforesaid mechanic i.e. Hardeep Singh whose affidavit is Ex.CB. He has not mentioned in the affidavit regarding his qualification whether he is engineer or not and in the absence of his qualification how we can consider that he is a perfect mechanic for checking of the four wheeler vehicle. Furthermore, simply stating that he checked the vehicle in question and found that there is defect in the vehicle which can not be rectified, we feel that a mechanic how say without giving any further detail what type of the defect is in the vehicle which is not curable. So, from these aspects, the evidence of the said mechanic is not a trust worthy.

9. On the other hand, the OP has brought on the file history of the vehicle which is Ex.OP2/1. As per history of the vehicle, the total mileage covered by the vehicle is 47490, from 06.08.2015 to the date of purchase i.e. 26.03.2014, means in a less than one year the vehicle runs about 50,000 KMS, if there was virtually inherent defect in the engine then it is not possible to run a vehicle such a huge kilometers of 47490 within less than one year. However, we can presume that if the complainant came in the Consumer Forum, there might be some defect in the vehicle and moreover, OP No.2 the dealer of the vehicle admitted in its written statement in para No.4 on merit, the vehicle came in the workshop on 26.04.2014 for free service, alignment and balancing only and thereafter the said vehicle was brought on 02.05.2014 by the complainant reporting that there was vibration in vehicle and suspension noise but as per the version of the OP No.2, the vehicle was checked at the workshop of the answering OP and was found 'OK' but if the vehicle was OK then what was the necessity to the complainant to waste the time by filing the present complaint in the Consumer Forum which shows that there must be some defect in the vehicle which may be minor or major but not inherent defect. So, under these circumstances and in the interest of justice, we think the complaint of the complainant to that effect should be accepted and accordingly the complaint of the complainant is partly accepted to the effect that the OPs are directed to repair the vehicle of the complainant and remove the defect, if any therein and then hand over the vehicle to the complainant. No compensation or cost or litigation expenses is imposed to the OP because it is not established that there is any intentionally deficiency of service on the part of the OP. Complaint could not be decided within stipulated time frame due to rush of work.

10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

24.05.2017 Member President