Orissa

Rayagada

CC/78/2018

Sri Madan Sundar Pattnayak - Complainant(s)

Versus

Proprietor, M/s Lengend Cars Pvt., - Opp.Party(s)

Self

27 Aug 2019

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA, Pin No. 765 001.

 

C.C. Case  No.       78/ 2018.                                         Date.          27. 8 .2019.

 

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                       President.

Sri   Gadadhara  Sahu,                                          Member.

Smt. Padmalaya  Mishra,                                     Member.

                                   

Sri Madan Sundar Pattnayak, S/O: Padma Lochan Pattnayka, Karan Sahi, Bissamcuttack, Dist:Rayagada, Odisha.                                  …. Complainant.

Versus.

1.The Propritor, M/S. Legend Cars Pvt. Ltd., Jepore, Dist:Koraput, Odisha.

2. The Managing Director,  Maruti  Suzuki India Pvt. Ltd., New Delhi.

                                                                                                … Opposite parties.

Counsel for the parties:                         

For the complainant: - Sri  R.K.Senapati, Advovate, Rayagada.

For the O.Ps 1 :- Sri Subash Chandra Panda, Advocate, Jeypore.

For the O.P  No.2 :- Sri Rabi Prasad  Mohapatra, Advocate, Rayagada.

JUDGEMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non refund  of Maruti Celerio Car price  a  sum of Rs.5,40,000/- which was burnt  totally  and is not  fit for use for which  the complainant  sought for redressal of the grievances raised by the complainant. 

Upon  Notice, the O.Ps    put in their appearance and filed written version through their learned counsel in which  they refuting allegation made against them.  The O.Ps  1 & 2   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P. No.1 & 2 . Hence the O.P No.1  & 2  prays the forum to dismiss the case against  them  to meet the ends of justice.

We have heard the submissions made across by and on behalf of   both the parties by their respective  Learned  counsels, as also  perused the pleadings filed there on.

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                        FINDINGS.

There  is no dispute that   the complainant had  purchased    Maruti  Celerio Car bearing Engine No.  K 10BN1818541  of  2014 model   from  the O.P. No. 1  on payment of consideration   a sum   for Rs.4,66,304/-   to the  O.P. No.1 on DT. 24.12.2014  with two years warranty and  registration No. OD-18 A-7004 (copies of the  Proforma  invoice No. VSL  14000401  Dt.24.12.2014    inter  alia   warranty  card  is in the file which is marked as Annexure-I,2).  It is not disputed  that three  free services  provided by the O.Ps were availed by the complainant. It is suggested that   the vehicle was sent to the workshop  of the  O.Ps  for  which the complainant  have produced  the job sheets dated.03.2.2015, Dt.  12.3.2015,  Dt.22.8.2015 Dt.25.11.2015, Dt.12.3.2017, Dt.28.12.2017.(copies of the  job sheets are in the file which are marked as  Annexure- 3 to Annexure-6). As observed   the job cards contained  the signature of the complainant for the work done by the  O.Ps. It may also seen that the present complaint was filed on  Dt.22.5.2018 where as the  above  Car was purchased since 24.12.2014.

            The main grievances of the complainant is that  on Dt. 9^th. February, 2018  the complainant was travelling in the Car at  about  12.35 P.M.  the car caught fire  and  was burnt totally and  razed  on the spot now it  is not fit for use.  The complainant  submitted that for the damages caused to the vehicle for reasons beyond the control of the complainant  i.e  due to defect in manufacturing . The O.Ps can not escape from the liability that warranty period is expired, and the complainant wants  refund  of price of the above Car. Hence this C.C. case.

 

The  O.Ps  in their  written version contended that  on Dt. 9.2.2018   the vehical was caught fire and was damaged. The occurance took place after lapse of four years of purchase of the vehicle i.e. on Dt.24.12.2014.   During the inspection it  was observed  that the vehicle had run huge mileage  i.e. more than  1,55,000 Kms.  at the time  of  incident.     By the time of accident on DT. 9.2.2018  the  warranty period was also  over on Dt. 24.12.2016 and there was no coverage under the ambit of warranty in terms of clause-2 of the warranty  policy.   The O.Ps  had  provided services  regularly as to the satisfaction  of the complainant  during  the warranty period and no defect had been detected and never complained  by the complainant.  That the cause of fire is attributed due to some external reason   only  and not caused to any  manufacturing defect or   technical fault  in the vehicle.  At the time of incident the vehicle was not having insurance policy which is a violation of M.V. Act,1988.  That the case is barred by limitation.  The  complainant has to prove strictly the  fire  accident  occured due to   manufacturing defect by submitting Technical certificate issued by the  authorised technical person. .   That the  complainant  had purchased the  vehicle on Dt. 24.12.2014 and as per the last  visit of vehicle at the authorised workshop of  O.P the vehicle has covered a mileage of  1,51,000 Kms. which completely  eliminates  the presence of any  manufacturing  or technical  defect in the vehicle. Further  It is submitted that any report of media does not prove any technical and manufacturing defect in the vehicle and any  news published is  not admissible in the court. It is specifically denied by the   O.Ps  that the vehicle suffers  from any manufacturing defect within warranty  period.

After fire incident the vehicle was inspected by the  O.Ps and observed the following:-

(a) The vehicle had covered a huge mileage of more than 1,55,000 Kms at the time of accident.

(b) The vehicle was  outside the tenure of warranty.

©  The vehicle is being used extensively and regular maintenance services  have not been availed in the vehicle and thus, the vehicle was in violation of clause 4(5), 4(8) and 4(9) of warranty as well as recommened terms and conditions of use as stated in Owner’s Manual & Service Booklet.

(d)  Fire is due to some external reason only and not attributed to any manufacturing defect or technical defect.

(e)  Vehicle does not have any existing  insurance policy, which is grave of violation of provision of Central Motor Vehicles Act, 1988.

Further the O.Ps  contended that  the complainant has not lodged F.I.R at the nearest police station.

For  better appriciation  this forum relied citations of the Apex courts which  are mentioned  here:-

It is held and reported   CPR- 2005(1) Page -95 Rajesh Kumar Yadav Vrs. Agarwal Automobiles and Anr. Where  in  the Hon’ble  commission   observed  “The  vehicle was purchased in July, 1997 and complaint alleging   defect in it was  filed in May, 2002 and no technical evidence was produced to substantiate the contentions, complainant could not be said to have proved his case that the vehicle suffered from a manufacturing defect.”

Further  the claim of the complainant based only on averments made in complaint without any corroborative evidence cannot be allowed  as has been held in  the case titled Sahib Singh Vrs. Sonu, 2006(2) CPC 115 Chd.

Again 2001(3) CPR 149, SCDRC,Kerala  in the case of Mrs. JeeniferAlhonesVrs.  M.D M/S. Ind. Auto  and Anr where in the Hon’ble State commission  observed  “Technical  questions like manufacturing defect when pleaded by complaint burden is on him to adduce evidence.”

            Further   2003 NCJ (NC) in the case of Sri Suresh Kumar  VishwarkarmaVrs.  MaaKoul where in the Hon’ble National Commission observed “ Section 2(1) (f)- defect- No evidence of manufacturing  defect in  computer- Held defect not proved.”

Again in the case of K.L.AroraVrs. Groovy Communications 2002(3) CPR 92 (NC) where in the Hon ‘ble National Commission  observed  “for the necessity of expert evidence to prove  the submissions of manufacturing defects in the  goods  made in the complaint”.

            Further  in the case of Videocon International Ltd. Vrs. K.Viyjaayan&othrs  1999(1) CPR-20 wherein   the hon’ble commission  observed  “That for replacement of product the defect must be manufacturing   and for proving manufacturing  defects expert report  is essential.”

            Again   in the case of SterocraftVrs. Monotype India Ltd, New Delhi 2000 NCJ (SC) 59 where in the Hon’ble Supreme Court observed “ When the terms of warranty does not cover refund or replacement then  consumer can not claim either replacement or refund  during  or after  the lapse of warranty  period.  The consumer can only  claim repairing  of the product if permissible under the terms of service contract or warranty.”

Again in the case of Bajaj Tempo Ltd Vrs. Shri  Ajwant Singh & Another reported in  2014(3) CPR- 724  N.C.,  the  Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.

Further in the case of Sandeep BhallaVrs.  Ashoka Electronics Pvt. Ltd.  IV(2011) CPJ 138(NC). The Ho’ble National Commission held that, “if any product works smoothly 7-8 months  then it can not held to  be  defective.”

Again   it is settled proposition of law as held in  Ravneet Singh Bagga Vrs. KLM Royal Dutch Airlines, 1999(3) CPJ- 28 (SC), it was  held that the burden of proving  the  deficiency in service  is upon the   person who alleges it.  In case of   bonafide    disputes to willful fault,  imperfection, shortcoming or inadequacy in the quality,  nature or manner of performance in the service can be informed. If on facts it is  found that the person or authority rendering service had taken all  precautions and considered all relevant facts and circumstances in the  course of the transaction and that their  action or the final decision was  in good faith, it can not be said that there  had been any deficiency in service”.

Further  it is held and reported  in C.P.R. 2006(3) page No. 287  where in the Hon’ble  National Commission  observed in para-10  “The petitioner  sold its product, which carried a warranty of one year.  Undisputedly in this case, the microlaser was purchased by the complainant on Dt.  14.3.1991   and by the time the toner was demanded on 25.4.2093, warranty had expired. After that it was for the complainant  to procure the toner from  any source including the petitioner.  Even if it is accepted  that  the petitioner refused to sell toner that could  not come under the  then existing defination of  ‘unfair   trade practice’. The deal  between these two parties  come to an end after the expiry of the period of warranty, which  in this case expired  much earlier.”

It is not in dispute that the above vehicle was brought  on  Dt. 14.12.2014 and the complaint was filed the complaiant before the forum  on Dt.22.5.2018.  As observed   the job cards contained  the signature of the complainant for the work done by the  O.Ps and   it has not been any where  complained by the  complainant that  it had  manufacturing defect  and received the vehicle from the O.Ps service centre with his full satisfaction without any complaint.

In the present  case in hand this forum observed that the complainant has failed to prove any  deficiency in service on the part of the O.Ps.  The above vehicle was purchased on  Dt.14.12.2014   with a warranty  of 2(two) years while the complaint is filed on Dt.22.5.2018. Thus  the complainant is filed  after a long delay  of several years of expiry of limitation. More over there is no technical  evidence to substantiate the contention that the   vehicle suffered from a manufacturing defect wihin warranty period.  Even the claim as to the expenditure incurred in repair to the vehicle no receipt  or bills have been produced during  the warranty period.   It is also admitted  position that there was no Annual Maintenance Contract between the parties . Further there is no evidence regarding  any warranty for the above vehicle.  It has not been  substantiated any where that it was an old machine.

 

Further this forum observed  that  no liability of ‘unfair trade practice’ could be fasted  on the  O.Ps. This forum carefully  gone through  the  defination of ‘unfair trade practice’ under section 2(1)(r)   of the C.P. Act, 1986.  At the relevant  time,  under no sub-clause  of the defination of ‘unfair trade practice’ the O.Ps could be held  to be liable for indulging in ‘unfair trade practice’.

Again this forum observed  the present complaint  was filed after a lapse of 4 fours  i.e  in the year 2018. The  complaint is, therefore , clearly time-barred as it was filed beyond  a period of 2 years  as allowed  for filing   consumer  complaints from the date of cause of action as per Section 24-A  of the C.P.Act, 1986.  The complainant has not been  able to  give any  cognet and convincing  reason for not filing  the complaint within the  period of  limitation. 

This forum further  relied  another similar type of case  citation which are mentioned here:-

It is held and reported in C.P.R.2006(3) page No.215 the Hon’ble  National Commission where in observed  “ Where car was damaged  by fire due to short circut while car was standing  in parking area, this can not rule out the possibility of some manufacturing defect in the car and the complainant  has already been compensated through the insurance claim”.

In the instant case the at the time of alleged incident, i.e. on Dt. 9.2.2018  the said vehicle was running  “without insurance” which is  grave violation  of provision of Central Motor Vehicles Act, 1988. Further the above vehicles  insurance was  inforce up to   21.04.2017. Thereafter the complainant was not paid premium and no policy had been issued  in favour of the  complainant  because of that the complainant had been deprived of  to get insurance amount towards compensation.

In this connection this  forum relied another  similar type  of   case  citation it is held and reported in C.P.R 2005(1) Page No. 10  the Hon’ble National Commission where  in  observed  “Unless  premium amount is received the  insurer can not assumed the risk”.

The O.Ps  vehemently argued that in this case there is no defect in the  above set of the complainant within warranty period, but the complainant has filed this fabricated complaint only to  tarnish the reputation of the O.P No.2 after warranty period    and to secure the unlawful gains from the O.Ps.

In view of the  facts and circumstances of the case and on perusal of the material on record we are inclinded to hold that there is no deficiency  on the part of the  O.Ps . Keeping in view the above , we find that the   present case in hand  have no legs to stand on and are not supported by the material  on record.   Therefore  the  present case is  liable to be  dismissed.

To meet the ends  of justice the following order is passed.

                                                ORDER.

In resultant  the complaint stands dismissed without  cost and compensation.

Copies of the order be served  on the parties free of cost  as per rule.

Dictated  and corrected by me. 

Pronounced on  this        27th       .      August,  2019. 

 

Member.                              Member.                                          President