DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 197 of 10.92015
Decided on: 19.7.2017
Amarjit Singh son of Sher Singh, resident of village Daun Kalan, Tehsil and District Patiala.
…………...Complainant
Versus
1. Raj Vehicles Pvt.Ltd., Branch Office,Dhareri Jattan, Bahadurgarh-Rajpura Road, Tehsil and District Patiala through its Manager.
2. Mahindra India & Wordl Headquarters, Mahindra Towers, G.M.Bhosale Marg, Worli, Mumbai-400018 (Maharashtra) through its Managing Director.
…………Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.S.S.Sidhu,Advocate,counsel for the complainant.
Sh.Sanjay Khanna,Advoate,
counsel for opposite party No.1
Sh.Chamandeep Mittal, Advocate,
counsel for Opposite party No.2.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Sh.Amarjit Singh, complainant has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Parties (hereinafter referred to as the O.Ps.) praying for the following reliefs:-
- To replace the car with the new one or to refund the sale price of the car alongwith interest @12% per annum from the date of purchase till the date of final payment
- To pay Rs.2,50,000/- as compensation for causing mental agony and physical harassment
- To pay Rs.11,000/- as litigation expenses
2. In brief, the case of the complainant is that he purchased a car make Mahindra Scorpio Hawk bearing Chassis No.D2D42080, engine No.MWD4c19963, colour DMND white, for a sum of Rs.9,97,854/-(inclusive of all taxes) vide invoice No.INV14A000139 dated 20.5.2013, from OP no.1, it being the authorized dealer of OP No.2,after raising loan from State Bank of India.He got the said vehicle insured from United India Insurance Co.. It is stated that from the date of purchase of the alleged car, it started giving mechanical problem in its various parts. Most of the time it remained off the road. He approached OP no.1 for more than 40 times for the repair of the said car. He also requested the OPs for the replacement of the said car but to no effect.He also sent e-mails dated 9.6.2015 and 8.7.2015 to the OPs but none from the side of the OPs responded. He also got sent a legal notice dated 17.7.2015 to the OPs but of no use.That there are so many manufacturing defects in the car and the same cannot be used by him for daily purposes as the same can cause danger to his life. It is stated that the car being within the warranty period, as such the OPs replaced the parts of the car , to the tune of Rs.2,50,000/-.Since May,2013, for more than two years, he faced so many problems due to the defects in the said car. The OPs indulged in mal practice.There is also unfair trade practice as well as deficiency in service on the part of the OPs for which he has suffered from mental agony and physical harassment.Hence this complaint.
3. On being put to notice OPs appeared and filed their separate written versions. In written version filed by OP No.1, it is admitted that the complainant purchased a Mahindra Scorpio car from it. It is further stated that whenever the complainant visited to it, for getting the car checked, the same was done as per the satisfaction of the complainant. Free services, as per the policy norms have also been availed by the complainant .After denying all other averments, going against it, it was prayed to dismiss the complaint.
4. In the written version, filed by OP no.2, preliminary objections have been taken to the effect that the relationship between the manufacturer and dealer is on principal to principal basis and OP no.2 is not responsible for any of the act, omissions or commission by its dealers; that the complaint filed by the complainant is barred by limitation and is liable to be dismissed under Section 24-A of the Act and that the complainant has failed to prove any manufacturing defect in the car. On merits it is reiterated that since the transactions with dealers are on principal to principal basis ,therefore, it is not responsible for any act, conduct or omission or commission by the dealer.Its liability is limited to fulfill the terms and conditions of the warranty policy. It is stated that the complainant has failed to point out any instance as to when the vehicle stopped on the way. It is further stated that during the warranty period the parts are being replaced under warranty, as per terms and conditions. In the present case, during warranty period, the parts replaced under warranty were oil seal leakage, head light black spot and steering hard operation. The steering hard operation has occurred due to the negligent/mishandling of the vehicle by the complainant because it had occurred due to fitment of oversize tyres by the complainant in the vehicle, the intimation of which was given to the complainant on 20.3.2015.No issue which could prevent the usage of the car has been received. The vehicle is absolutely defect free and has no issues and is running successfully. The allegations leveled by the complainant are baseless, general, vague and far from truth. After denying the allegations going against the OP, it was prayed to dismiss the complaint.
5. On being called to do so, the ld. counsel for the complainant has tendered in evidence affidavit of the complainant, Ex.CA alongwith documents Exs.C1 to 24 and closed the evidence. The ld. counsel for the complainant has also tendered documents Exs.C25 to C39 by way of additional evidence.
The ld. counsel for OP no.1 has tendered in evidence affidavit Ex.OPB of Sh.Gurpreet Singh, Branch Manager alongwith documents Exs.OP2 to OP16 and closed the evidence.
The ld.counsel for OP no.2 has tendered in evidence affidavit of Sh.Sanjeev Rampal, Authorized signatory alongwith document Ex.OP1 and closed the evidence.
6. We have heard the ld.counsel for the parties and have also gone through the record of the case, carefully.
7. The ld. counsel for the complainant has submitted that the car of the complainant, right from the date of the purchase, had been giving problem. Since June, 2013 to June, 2015,he took his car in question to OP no. 1 at least for 40 times for rectification of one or the other problem. But the problems are still persisting However, OP no.1 failed to set it right inspite of repeated repairs, meaning thereby that the car in question is having inherent manufacturing defect and he requested the Ops to replace the same with the new one, but they refused to do so.
8. The ld. counsel for OP No.1 vehemently argued that it is wrong to say that complainant had brought his car for repair to it for forty times since June,2013 to June, 2015. Whenever, complainant brought his car for its service/repair, same has duly been attended by its employees and the service of the same was done free of cost, as per warranty, to the satisfaction of the complainant. In order to prove that the car in question is suffering from manufacturing defect, the complainant has not placed on record any expert opinion. Thus, in the absence of any expert opinion, it cannot be said that the car is suffering from manufacturing defects and as such the same cannot be replaced with the new one and the complaint filed qua it, is liable to dismissed.
9. The ld. counsel for OP no.2 has submitted that the present complaint is liable to be dismissed on the ground of limitation because the complainant had purchased the said vehicle on 20.5.2013 and he is alleging that there is manufacturing defect in it, right from the date of its purchase, meaning thereby that the cause of action accrued to the complainant on 20.5.2013 and he could have filed the present complaint within two years from the date of purchase of the said car, as per Section 24A of the Act, whereas the present complaint has been filed on 10.9.2015 i.e. after a delay of about four months. He further submitted that it is wrong to suggest that the complainant had taken his car for forty times, for its repair/service. From the job sheets, it is evident that the complainant brought his vehicle at its workshop for routine maintenance services and other running repair works during the period June, 2013 to June,2015. Thus it cannot be said to have any inherent manufacturing defect. Even no report of any expert has been produced by the complainant to prove the fact that the car in question, suffers from any manufacturing defects. Even otherwise, as per warranty terms and conditions, the manufacturer is liable to rectify the problem, occurring in the vehicles either by repairing or replacing the defective part/parts. Thus, the prayer made for replacement of the car or refund of the price thereof, may kindly not be considered. He has further submitted that being manufacturer, it has relations with its dealers on principal to principal basis, and if any wrong has been done by its dealer, then it is not responsible. As such, the complaint filed by the complainant qua it, may kindly be dismissed.
10. It may be stated that the objections raised with regard to by OP No.2 regarding limitation is not tenable because from the job sheets it is evident that the complainant had taken his car continuously for its repair to OP no.1 since June 2013 to June 2015. As such, there is recurring cause of action and the complainant filed by the complaint, falls within period of limitation as per Section 24 A of the Act.
11. From the perusal of the job sheets, placed on record, it is evident that the complainant had taken his car for rectification for one or the other problems for 25 times within a period of two years i.e. from June 2013 to June 2015. No explanation whatsoever has been given by the Ops as to why the complainant was required to take his newly purchased car to the service centre for rectification of one or the other problem within a short span of two years. In the case of Krishan Pal Singh Vs. Tata Motors 2014(3)CLT 177, the Hon’ble National Commission, in para no.26 of the order dated 7.5.2014, has held that, when the complainant had to visit the service station repeatedly for repair- normally in such like situation the onus of proof should be shifted to the side of the OP when the manufacturing defects are visible on its face and the OP has no explanation to make, the manufacturing defect,’ must be assumed’ . Further in para no.27 of the said order, it was held that, we are bound by the law laid down by the Hon’ble Apex Court in several authorities, cited by the counsel for the petitioner/Tata Motors. The car can neither be replaced nor its amount can be refunded and ordered that the vehicle which is lying with the HIM Motors Pvt. Ltd., OP2, shall be repaired and the General Manager of Tata Motor will issue a certificate to the effect that the car is road worthy and it will not endanger the lives of the complainant and his family members. The roadworthy car be handed over to the complainant/consumer, within a period of 30 days from the receipt of this order. Thereafter, the warranty period shall stand extended by 12 months. This will be one of the conditions on the warranty card issued to the complainant”
12. In view of the aforesaid discussion we hereby decline the prayer made for replacement of the car with new one or for the refund of the sale price. However, we partly allow the complaint and direct the OP no.1 to handover the roadworthy car to the complainant either by repairing or replacing the defective part(s) with new one free of cost as per terms and conditions of the warranty and its Manager shall issue a certificate to the effect that the car in question is road worthy and it will not endanger the lives of the complainant and his family members. OP no.2 is also directed to supply the requisite part(s) immediately if, demanded by OP no.1 for removal of the defect(s) from the car in question and it shall also give extended warranty of 12 months with regard to the car in question. The OPs are further directed, jointly and severally, to pay a sum of Rs.10,000/-as compensation for causing mental agony and physical harassment suffered by the complainant, alongwith Rs.5000/- as litigation expenses. Order be complied by the OPs within a period of 45 days from the date of the receipt of the certified copy of this order . Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.
ANNOUNCED
DATED: 19.7.2017
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
