BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.88 of 2014

Date of Instt. 6.3.2014

Date of Decision :28.11.2014

Anil Kumar Gupta son of Narinder Kumar Gupta R/o House No.44, Saraswati Vihar, Kapurthala Road, Jalandhar.

..........Complainant

Versus

1. M/s Renault India Pvt.Ltd, ASV, Ramana Towers, 4th Floor, # 37-38, Venkatamanarayana Road, T.Nagar, Chennai-6000017, Tamilnandu, India, through its MD/Service Head/head of Department/Authorized representative/authorized signatory.

2. M/s Padam Cars Pvt Ltd, Opposite Indian Oil Depot, Suchi Pind, Amritsar Road, Jalandhar, through its MD/Service Head/head of Department/Authorized representative/authorized signatory.

3. M/s Padam Cars Pvt Ltd, VPPO Jugiana, GT Road, Ludhiana-141420, Punjab through its MD/Service Head/head of Department/Authorized representative/authorized signatory.

4. PMG Autos Pvt Ltd, 47, Industrial Area Phase-I, Chandigarh-160002, through its MD/Service Head/head of Department/Authorized representative/authorized signatory.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

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

Sh.KS Minhas Adv., counsel for OP No.1.

Sh.Gagandeep Adv., counsel for OPs No.2 & 3.

Opposite party No.4 exparte.

Order

J.S. Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act 1986 against the opposite parties on the averments that the complainant is the director/CEO of M/s Medical Concept Pvt Ltd, Street No.3, Raja Garden, Kapurthala Road, Jalandhar, which deals in the business of medical equipment/goods and the said company vide its resolution dated 12.9.2012 had decided to purchase the car i.e Renaults Scala for the use of the complainant. Copy of the resolution is attached. After the full assurance of the opposite party No.2 complainant has purchased the said vehicle i.e Renaults Scala bearing No.PB-08-CE-9636, Engine No.E-015757, Chesi No.MEEAHBA41C7000273 vide proforma invoice dated 18.10.2012 for a sum of Rs.10,12,372/-. After 10/15 days of the purchase of the car, it start giving problem of break system. In-fact there was a manufacturing defect in the break master cylinder. The complainant has immediately approached the opposite party which also confirmed the said defect and has stated to the complainant that they have rectified the said defect, but even thereafter the above said car was giving the same problem and the complainant has approached the opposite party time and again for rectifying the above said defect and the opposite party No.3 further sent the car of the complainant to the opposite party No.3 which is the service centre of the opposite party No.2 but they failed to rectify the said defect. Due to the above said manufacturing defect the above said car met with an accident on 12.5.2013 and the DDR to this effect was also got registered with the Police Station Phagwara on 13.5.2013. Due to the said accident the above said car got damaged and the son of the complainant namely Hitesh Gupta was saved by the grace of the God and the complainant has sent the above said vehicle to the opposite party No.3 and has spent more than Rs.1,65,395/- on the repair of the above said car. It is worthwhile to mention here that the engineers of the opposite party No.3 has also confirmed that there is manufacturing defect in the break master cylinder of the above said car which is not curable and has also suggested the complainant to get replace the same from the company i.e opposite party No.1. The said manufacturing defect has also been confirmed by the opposite party No.2 vide its letter dated 13.6.2013. After the receipt of the letter dated 13.6.2013, the complainant has approached the opposite parties number of time either to replace the above said car or for the rectification of the above said manufacturing defect. But the opposite parties are lingering on the matter on one pretext or on the other. On such like averments, the complainant has prayed for directing the opposite parties to pay him Rs.14,62,372/- on account of price of the vehicle, cost of repair of the car and further on account of compensation.

2. Upon notice, opposite parties appeared and filed their written replies. In its written reply, opposite party No.1 raised preliminary objection to the effect that complainant does not fall in the ambit of a consumer as the vehicle was purchased by Medical Eleborate Concept Pvt.Ltd for commercial purpose etc. On merits it pleaded that in vehicle history of the car it is clearly available that on 28.10.2012 the vehicle went for the first time to the service station where periodical maintenance service was done which is regular and general servicing of the car. The vehicle history clearly mentions that there was no manufacturing defect in the car at any time and if there had been any manufacturing defect in the car then the car would not be able to run for a total kilometer of 26,256 KMs. It is impossible for any prudent man to believe that the car which has an inherent defect is able to run for a distance more than 20,000 kms. The accident has not occurred because of the manufacturing defect of the car and if the car of any person meets with an accident of which the opposite party no.1 is the manufacturer then in that case it is outside the purview of the warranty cover as it is clearly mentioned in the Renault new vehicle warranty. There was no inherent defect in the car and if that would have been the situation then under no circumstances the car would be able to run for a total number of 26,265 kms. The alleged complaint and can not say that there has been a manufacturing defect in the car without getting an expert opinion. It is pertinent to mention here that it is evident from the insurance claim form of accident dated 10.4.2014 that the vehicle's brake's were working absolutely fine and proper as in point No.25 of the insurance claim form it is stated by the alleged complainant's son "I was driving on a constant speed & suddenly the truck which was overtaking his vehicle on the right & banged into my car from front right side & due to my sudden brakes a auto rickshaw driver banged from back left side". Therefore, it is evident from the said statement of the alleged complainant's son that the brakes were completely fine even at the time of accident which took place on 10.4.2014 and that was the reason that when the complainant's son pressed the brakes suddenly the vehicle stopped and got banged from back left side. It is also important to note here that the alleged complainant's son was the person who was driving the vehicle at the time of the accident and his version of the accident holds more authenticity in comparison of contradictory statements of this father i.e alleged complainant. It is important to mention here that the opposite party No.1 has issued a letter to the badge of vehicles that the opposite party No.1 suspects a brake issue and called the vehicle at dealership free of cost. On 3.8.2013 at 13000 km odometer reading of the vehicle complainant's car was checked at the dealership and it was found to be ok. The suspected problem of the brake issue was specifically and categorically in relation to slow stoppage of vehicle in bumper to bumper conditions only i.e when in a very heavy traffic conditions when the vehicle is moving at the negligible or very slow speed the problem in the brakes being faced only in that specific condition. At all speeds and driving conditions other than those specified above, the brakes of the car work perfectly. It denied other material averments of the complaint. In their written reply, opposite parties No.2 and 3 raised preliminary objections regarding maintainability, want of cause of action, estoppel, complainant being not consumer, non joinder of necessary party etc. They pleaded that the present complaint is false, frivolous and vexatious to the knowledge of the complainant. The complainant has filed the false complaint against the opposite parties, as the complainant has concealed the material facts and has not approached before the forum with clean hands. True facts are that the complainant never brought the alleged defect as alleged in the complaint to the notice of the opposite parties when the complainant brought the car in question for service/repair on 28.10.2012, 8.12.2012, 17.4.2013 & 6.3.2014. The complainant has misguided and has filed the false complaint against the opposite parties just to cause undue harassment. Despite knowing the fact that there is no fault of answering opposite parties, the complainant has filed the present complaint with false averments just to extract the money from the opposite parties. They denied other material averments of the complaint.

3. In support of his complaint, learned counsel for complainant has tendered affidavits Ex.CW1/A alongwith copies of documents Ex.C1 to C20 and closed evidence.

4. On the other hand, learned counsel for opposite party No.1 has tendered affidavit Ex.OP1/A and evidence of opposite party No.1 closed by order. Further learned counsel for opposite parties No.2 & 3 has tendered affidavits Ex.OP2 & Ex.OP3 alongwith copies of documents Ex.OP2&3/1 to Ex.OP2&3/3 and closed evidence.

5. We have carefully gone through the record and also heard learned counsel for the parties.

6. The opposite parties have taken preliminary objections that complainant is not consumer as the car was purchased by Medical Eleborate Concept Pvt Ltd for commercial purpose. Counsel for the complainant contended that the company has passed a resolution Ex.C-1 for purchase of the car in the name of the company for the personal use of the complainant, who is director of the company. In support of this contention he has relied upon Controls & Switchgear Company Ltd Vs. Daimlerchrysler India Pvt. Ltd, IV(2007) CPJ1 (NC). We have carefully considered the above contentions advanced by learned counsel for the complainant. The above cited authority is on its own facts. In the above said case the car was purchased by company for personal use of its director and the complaint was filed by company itself. In the present case, car was purchased by M/s Medical Eleborate Consept Pvt Ltd as is evident from proforma invoice Ex.C2 and other documents produced by the complainant. The present complaint has been filed by Anil Kumar Gupta in his individual capacity and not even as director of the company. In our opinion Anil Kumar Gupta can not be considered as consumer as car was purchased by the above said company. In General Motors India Pvt Ltd Vs. G.S Fertilizers (P) Ltd & Anr, II(2013) CPJ 72 (NC), the car was purchased by the company i.e G.S Fertilizers (P) Ltd and it was alleged that the same was purchased for the use of its managing director and in these circumstances it was held by Hon'ble National Commission as under:-

" 9. We have heard learned counsel for both the parties and have gone through the evidence on record. We note that in his complaint before the State Commission the respondent-complainant had clearly stated that the vehicle was purchased for the use of its managing director. We agree with the appellant's contention that this clearly amounts to its purchase for a commercial purpose since the managing director of the private limited company would obliviously not use this vehicle for self employment to earn his livelihood but for commercial purposes as a perk of his office.

10. Since the instant case pertains to the purchase of goods admittedly for commercial purpose since the vehicle was purchase by a private limited company for its managing director, this case is squarely covered by the above judgment of the Hon'ble Apex Court. The State Commission erred in not taking note of this important fact while deciding the complaint. Even otherwise, we note that the respondent-complainant has not been able to produce any evidence, including that of an expert to indicate that there was any manufacturing defect in the vehicle. We also note that whenever there was any problem with the vehicle either because of normal wear and tear or following accidents, these were promptly attended to by the appellants and there was no deficiency in service in this respect".

7. In the present case the car was purchased by the company so it has become an asset of the company. The company must have obtained deprecation in respect of the car in question. The car was given to the complainant by virtue of his position as director. So it is nothing but perk to him. Moreover the car met with an accident on 12.5.2013. Ex.C-4 is copy of DDR regarding accident. At the time of accident the car was being driven by the son of the complainant, wherein it is mentioned that at about 5.30 PM when the son of the complainant reached near village Khangura bye pass G.T. Road, a stray cattle came in front of his car from front side and in order to save him he turned his car towards right side and front tyre of his car hit the divider and got damaged and his car become out of control and fell in the "khetans" i.e borrow pits. On the basis of this version regarding the accident, it can not said that accident took place due to manufacturing defect in the car. The complainant has not examined any expert witness to prove the alleged manufacturing defect in the car. The warranty does not cover the defect, if any, on account of accident. This fact is there in the affidavit Ex.OP1/A of Axel Galametz, authorized representative of opposite party No.1. Moreover, the complainant is not consumer as already discussed above. So the present complaint is not maintainable and is dismissed as such with no order as to cost. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

28.11.2014 Member President