Punjab

Rupnagar

CC/18/5

Jagdish Singh - Complainant(s)

Versus

Raj Motors - Opp.Party(s)

Sh. Navdeep Singh,Adv

16 Jul 2018

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                 Consumer Complaint No. :  05 of 15.01.2018

                                 Date of decision                    :     16.07.2018

 

Jagdish Singh, aged about 48 years son of Sh.Baldev Singh, resident of Village Talapur, PO Bhakkumajra, Tehsil  Chamkaur Sahib, District Rupnagar.  

                                                                 ......Complainant

                                             Versus

1. Raj Motors NH No.21, Choti Gandho, Chandigarh Road, Ropar, Tehsil & District Rupnagar through its Manager
2. Mahindra & Mahindra Ltd, 3^rd Floor, Marketing Office Mahindra Towers, Akurli Road, Kandivali East, Mumbai 400101, through its Marketing Manager
3. New India Assurance Company Nangal Road, Rupnagar, through its Branch Manager.  

                                                                         ....Opposite Parties

                                   Complaint under Section 12 of the                                                      Consumer Protection Act, 1986

QUORUM

 

                        SH. KARNAIL SINGH AHHI, PRESIDENT

                        SMT. SHAVINDER KAUR, MEMBER

 

ARGUED BY

 

Sh. A.P.S.Bawa, Adv. counsel for complainant 

Sh. Udhey Verma, Adv. counsel for O.P. No.1

Sh. KS Longia, Adv. counsel for O.P. No.2

Sh. Rajesh Sharma, Adv. counsel for OP No.3 

 

                                           ORDER

              SH. KARNAIL SINGH AHHI, PRESIDENT

 

1.         Complainant has filed the present complaint seeking directions to the opposite parties to replace the vehicle with new one or to rectify the faults as per the satisfaction of complainant; to pay Rs.5,00,000/- as cost of harassing to the complainant and they burdened with special costs on account of causing mental, physical and financial loss.  

2.    Brief facts made out from the complaint are that on 19.12.2015 complainant purchased one vehicle Bolero Mahindra Jeep bearing No.PB-12-Y-0069 from the O.P. No.1 and its chassis No.F5M39623, Engine No.GRF4L78338, colour white after obtaining the loan of Rs.6,40,000/- from the PNB Bank and has deposited Rs.75,000/- in cash by the complainant with OP No.1 and was hypothecated from PNB Branch Daburji, District Rupnagar and the said vehicle was manufactured in the month of December 2015. The O.P. No.1 has also insured the vehicle from the employees of OP No.3 i.e. New India Assurance Company who was sitting in their office. The complainant is also having driving license from the competent authority. When the complainant purchased the above said vehicle from the OP No.1, they assured him that standard warranty of the said vehicle is for two years. After purchasing the said vehicle same has been giving trouble from the very beginning regarding auto start, having not good pickup during the ride, and after the ride when the vehicle was switch off, then vehicle never starts again while starting the same and engine of the said vehicle also gives so many different noises and the also having clutch plate problem.  It is further stated that complainant has complained the above said mechanical fault of the vehicle to the OP No.1 from March 2016 to onwards till date and after repairing the same, the said vehicle was not properly rectified by the O.Ps. and the same problems were again faced by the complainant. The complainant approached the O.ps. and requested them that his vehicle which was purchased from the O.P. No.1 created same type of problem then the O.P. no.1 have repaired the said vehicle and obtained money from the complainant, whenever the complainant had requested them time and again that new vehicle which was purchased by him from OP No.1 is in guarantee period then OP refused to repair the same cashless, then the OP No.1 issued the bills and received money from the complainant. The complainant is transporter by profession and having 13-14 trucks and are plying from Ropar to Rajasthan etc. If the trucks of the complainant break down in any place, then the complainant took his bolero jeep their for the help  of that break down truck. But the said vehicle which was purchased created trouble again and again which also badly effected the business of complainant. Hence, this complaint.

 3.   On notice, O.P. No.1 appears through counsel and filed written reply taking preliminary objections; that the present complaint is not maintainable; that the complainant has no locus standi to file the present complaint; that the complainant has no come to the Forum with clean hands and have suppressed the real and material facts from the Ld. Forum; that the complainant has no cause of action of action to file the present complaint; that the complainant has filed the present complaint on wrong facts by making false story only to harass and humiliate the answering O.P. On merits, it is stated that complainant has purchased a Bolero Mahindra vehicle from OP NO.1 in the month of December 2015. The vehicle was not insured by the employee of O.P. No.1. However, the standard warranty of the vehicle is for two years as per terms and condition of the company. Complainant has complained minor problems, the same had been rectified by the answering O.P. Whenever the complainant came to the answering O.P. the complaint of the complainant has been satisfactory rectified and the complainant has always signed the satisfactory note. The answering O.P. has never charged any amount from the complainant for the works which were covered under the warranty. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof. 

4.         O.P. No.2 appears through his counsel and filed written reply taking preliminary objections; that the complaint filed by the complainant is hopelessly time barred; that the warranty of the vehicle is two years as per the warranty manual of the vehicle in question; that the complaint filed by the complainant does not fall within the identification of a consumer dispute under the Consumer Protection Act as there is neither any manufacturing defect in the vehicle in question nor any deficiency in service being established against this answering O.P.; that the complainant is not the consumer; that the complainant has no cause of action to file the present complaint; that the complaint is false, frivolous and vexatious to the knowledge of the complainant. On merits, it is stated that complaint do not relates to answering O.P. The sale and service of the vehicle is entirely the prerogative of the dealer. Dealer accepts the consideration amount from its customer and issues receipts under its own name. The relation between dealer and manufacturer is on principal to principal basis and not on principal to agent basis. The answering O.P. cannot verify the authenticity of the driving license of the complainant. No date, time or even the month of any such complaint has not been mentioned. No detail whatsoever has been mentioned as to when such complaint has been made and what resolution has been done. The basis issue is of faulty driving of the complainant whenever the complaint has been made by reporting the vehicle at dealership the same was checked, inspected and nothing wrong was found in the vehicle. The real issue is within the faulty driving technique    of the driver of the vehicle. It is further stated that there is no policy of answering O.P. to replace the vehicle. The vehicle is under warranty subject to terms and conditions and not under guarantee. Moreover, the complainant is leveling false allegations, as complainant has driven the vehicle 58000 Kms in less than 2 ½ years, this itself shows that vehicle was worked perfectly fine and it is a defect free vehicle. A vehicle with manufacturing defect cannot be used and driven so extensively in short span of time. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof. 

5.         O.P. No.3 appears through counsel and filed written reply taking preliminary objections; that the present complaint is not maintainable; that there is no deficiency in service on the part of answering O.P; that this Hon’ble Forum has no jurisdiction to decide the said complaint as there are so many complicated facts are involved in the present case which cannot be decided in the summary nature without recording the evidence and there cross examination, only civil case as jurisdiction to decide the complicated facts and questions arising out of the complaint; that there is no cause of action arose against the answering O.P. On  merits, it is stated that the answering O.P. has insured the said jeep No.PB-12Y-0069 and issued the policy No.352301311600006083 and covered risk from 20.12.2016 to 19.12.2017. As per the policy only accidental risk is covered, but as per version of complainant there is manufacturing defect in the said vehicle, so it is not covered under the policy.

6.    On being called upon to do so, the complainant has tendered his duly sworn affidavit Ex.CW1/A along with documents Ex.C1 & Ex.C54 and closed the evidence. The learned counsel for the O.P. No.1 has tendered sworn affidavit of Sh. Ravinder Kumar, Service Manager of Raj Motors Ex.OP1/A along with docu8ments Ex.OP1/B to Ex.OP1/V and closed the evidence. The learned counsel for the O.P. No.2 has tendered affidavit of Sh. Ashish Sharma, authorized signatory of Mahindra & Mahindra Ex.OP2/A & copy of agreement Ex.OP2/B and closed the evidence. The learned counsel for the O.P. has tendered duly sworn affidavit of Sh. Surinder Pal Sharma, Divisional Manager of New India Assurance Company Ex.OP1 and original insurance policy Ex.OP2 and closed the evidence. 

7.    We have heard the counsel for the parties and have gone through the record of the file, carefully.

8.    Complainant counsel Sh. APS Bawa argued that Jagdish Singh (complainant) purchased one Bolero Mahindra Jeep bearing No.PB-12-Y-0069 from OP No.1 on 19.12.2015 against loan Rs.6,40,000/-, whereas cash Rs.75,000/- was deposited. After purchase the vehicle started creating trouble and so many time complainant visited to the O.Ps (agency) for the necessary repairs, but the mechanic pointed out the manufacturing defect. The vehicle was got checked up many times from the O.Ps. when the vehicle was within the warranty. When the vehicle started creating trouble while in warranty then the deficiency in service stands proves, old vehicle be replaced with new one and complaint be allowed with costs.

9.    Sh. Rajesh Sharma, counsel for OP NO.3 argued that this complaint has no concern with the OP No.3 with whom the vehicle insured. If no accident then OP No.3 will not come in operation and prayed to dismiss the complaint qua OP No.3

10.  Sh. KS Longia, counsel for OP No.2 argued that if the vehicle sold through the dealer and conclusion comes that there is manufacturing defect then the manufacturer held responsible. In this case no document has come on file qua the manufacturing defect. When no manufacturing defect then OP No.2 cannot be held responsible in any way.

11.  Sh. Udhey Verma, counsel for OP No.1 after referring the pleadings, documentary evidence, and the affidavit produced by both the parties prayed that the sale purchase of the vehicle is dated 19.12.2015 and now the vehicle has covered the mileage in thousands. If with the passage of time any trouble created due to fuel, cleanliness etc then for that defect O.Ps cannot be held responsible. The warranty period stand expired and the complaint is without merit and same be dismissed with costs.

12.  Before coming to the real controversy the Forum is to appreciate whether it is a consumer dispute and further whether the complaint is maintainable. In support of this contentions complainant counsel pointed out the date of purchase of the vehicle i.e. 19.12.2015. O.P. admitted the warranty period which expires on 18.12.2017. Complainant placed on file various documents i.e. Ex.C1 to Ex.C54. So it is a consumer dispute and this Forum has the jurisdiction.

13.  Coming to the point in controversy, complainant pleaded that the vehicle since purchased creating trouble in functioning and O.Ps. be directed to replace the new vehicle with old one. The date of purchase 19.12.2015 not disputed and price of the vehicle mentioned Rs.6,40,000/- whereas at the time of purchase deposited Rs.75,000/- that point is not in controversy. Complainant in support of his claim has placed on file his sworn affidavit Ex.CW1/A in which he repeated the entire version. Beside this placed on file documentary evidence relating to prepare of the vehicle Ex.C1 to Ex.C53. Evidence lead by both the parties stand incorporated in earlier part of the order and there is no need to repeat. Ex.C1 proves the vehicle history dated 09.12.2017. Thereafter the vehicle brought to the dealer on different dates, which shows from the copy of gate passes Ex.C19 to Ex.C27 & Ex.C33 and all the documents placed on file qua the repair of the vehicle are not disputed by the O.P. No.1. Ex.C53 is qua standard warranty and it is recorded that warranty of the vehicle two years period unlimited K.ms. from the date of retail sale to the customer. Whereas the O.P. No.1 placed on file Ex.OP1/B to Ex.OP1/V. OP No.2 placed on file the agreement with OP NO.1/dealer.

14.  While granting relief qua the manufacturing defect the owner of the vehicle has to prove the manufacturing defect by examining mechanic or by placing on file expert report. No doubt the complainant placed on file various documents that are relating to the service or change of fuel, cleanliness etc. No manufacturing defect ever pointed out or removed in the absence of the expert report qua the manufacturing defect. It is not possible to held or to pass the order in favour of the complainant qua the replacements of the new vehicle with old one.

15.  However the Forum after going the documentary evidence placed on file has observed that since purchase of vehicle complainant has been visiting to the dealer from time to time for the repair or of complaint qua the functioning of the vehicle. If the vehicle frequently visited to the dealer workshop then the owner cannot enjoy the service of the vehicle. After appreciating the documentary evidence placed on file by the complainant qua the necessary repairs since the date of purchase has come to the conclusion that the vehicle requires necessary repair/examination by the expert mechanic. In these circumstances, though the warranty stand expired but the purchase is in trouble since long time and in this way O.P. No.1 is directed to depute one expert mechanic for thorough examination of the vehicle and after thorough examination if any defect is pointed out qua the functioning then it will be removed. However the minor expenses will not be charged from the complainant but if there is major expenditure then it will be tolerated by the complainant/OP No.1 50-50. The complainant will produce vehicle with the OP No.1 within two months from the date of receipt of certified copy of this order.

16.  In the light of above discussion, the complaint stand partly allowed with the directions to the OP No.1 as observed in the forgoing para. However, under the peculiarly circumstances, the parties are ordered to be bear their own costs.

17.  The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.

 

                     ANNOUNCED                                                    (KARNAIL SINGH AHHI)

                     Dated .16.07.2018                          PRESIDENT
 

 

 

                                                          (SHAVINDER KAUR)

                                                                             MEMBER