- Mr. Promode. A. Ojha,
309, Karnani Mansion ,
25A, Park Street, Kolkata-16. _________ Complainant
____Versus____
- M/s Fiat India Automobiles Ltd.,
Ranjan Gaon, Pune - 412210.
- Tata Motors,
15, Appejay House, 5th Floor,
Kolkata-16, P.S. Park Street.
- K.B. Motors Pvt. Ltd.,
Rameshwar Saha Road,
Kolkata-14. ________ Opposite Parties
Present : Sri Sankar Nath Das, Hon’ble President
Dr. Subir Kumar Chaudhuri, Member.
Order No. 26 Dated 14-09-2015.
The case of the complainant in short is that complainant has purchased a car being regn no.WB 06A 5110 from o.p. nos.1 and 2 on 26.2.09 and he paid a consideration of Rs.7,76,000/- for the said car along with warranty for another two years on payment of additional sum of Rs.5350/-. A copy of the said cash receipt has been annexed by complainant with the petition of complaint as annex-A. The said car has been delivered to the complainant on 26.2.09 and was covered under usual warranty upto 26.2.11 and thereafter for another two years additional warranty obtained on payment and which was covered till 26.2.13. Complainant stated that on 11.9.11 while they have returned at their residence by driving the car along with his wife, before the car could be put into garage the engine of the car suddenly burst into flame causing major fire, causing severe mental trauma to the complainant and ultimately complainant somehow managed and pulled out his wife from the car and ultimately his wife was senseless. Both the complainant and his wife suffered from burn injury. The servant of the complainant and other persons present there poured water and sand on the car and extinguished the fire.
Complainant stated that since the car was covered under warranty matter has been referred to o.p. no.3. The car was towed to the garage of o.p. for necessary repairing work. Complainant further stated that o.p. failed and neglected to give any technical report to complainant explaining the fire hazards. Ultimately, complainant calls upon the o.p. to replace the vehicle. O.p. however, failed and neglected to replace the car but insisted the complainant to take back the repaired car. But complainant did not want to take back the defective car at all. Beside this, complainant stated that o.p. no.2 intimated by a letter dt.19.1.12 to complainant that complainant had to pay Rs.200 per day for occupying the space of the garage of o.p. A copy of the said letter has been annexed by complainant with the petition of complaint as annex-B. Complainant further stated that he had issued two legal notices to o.p. no.3 which have been annexed as annex-C & D with the petition of complaint stated the manufacturing defect of the car. Complainant further stated since the car is covered under extended warranty the manufacturer ought to be replaced by a new car or returned the price of the car. After a great deal of persuasion complainant neither gets a new car in replace of the burn car nor o.ps. refund the price to the complainant. Under such circumstances complainant filed the instant case with the prayers contained in the prayer portion of the petition of complaint.
O.p. no.2 appeared before this Forum by filing w/v and contested the case whereas mater has been proceeded ex parte against o.p. nos.1 and 3 in spite of receiving notices in this regard. O.p. no.2 submitted that the allegation of the complainant is misconceived and baseless in respect of manufacturing defect without relying upon any expert opinion from the recognized expert and/or notified laboratory as stated u/s 13(1) of the C.P. Act, 1986. They further stated that without any documentary evidence in respect of the allegation made by complainant would not substantiate. O.p. no.2 also alleged that complainant failed to neglect and to follow the guidelines given in the owner’s manual. Further o.p. no.2 stated that as per clause 7 of the terms and conditions of the warranty it clearly stipulates that the warranty shall not apply to any repair or replacement in the vehicle in the event of any accident or collision. As such, ld. lawyer of o.p. no.2 prayed for dismissal of the case as they have got no deficiency of service even though extended warranty was there.
Decision with reasons:
Upon considering the submissions of the contesting parties and on careful scrutiny of the entire materials on record and during hearing ld. lawyer of complainant also submitted that relying upon the judgment dt.7.2.03 passed by Hon’ble National Commission in R.P. No.240/2002 wherein Hon’ble National Commission interalia held that if any consumer when buys a new vehicle he is under impression that a new vehicle is bound to be mechanically perfect or that a brand new vehicle would be defect free. Hon’ble National Commission also observed that if the vehicle is defective the consumer has a right to seek its replacement or refund of the price of the same. In this context, the vehicle is covered under extended warranty during the period of incidence.
Upon considering the foregoing paragraphs and on careful scrutiny of the entire materials on record and submissions of the contesting parties, this Forum holds relying upon the judgments as cited by ld. lawyer of the complainant that the instant case has been suffered from deficiency of service by o.ps. to the complainant as service providers and as such, this Forum finds there is deficiency on the part of o.ps. and accordingly, complainant is entitled to relief.
Hence, ordered,
The case is allowed on contest with cost against the o.p. no.2 and ex parte with cost against o.p. no.1 and dismissed ex parte without cost against o.p. no.3. O.p. nos.1 and 2 are jointly and/or severally directed to refund a sum of Rs.7,76,000/- (Rupees seven lakhs seventy six thousand) only i.e. the cost price of the car in question to the complainant and are further directed to pay to the complainant compensation of Rs.20,000/- (Rupees twenty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Complainant is directed to return the vehicle in question to o.p. nos.1 and 2, if the same within the custody of the complainant yet, within seven days from the date of receipt of the refund amount as aforesaid.
Supply certified copy of this order to the parties free of cost.
