JAGANNATH BAG, MEMBER

          The present appeal is directed against the Order, dated 11.04.2014, passed by the Ld. District Consumer Disputes Redressal Forum, North 24- Parganas, in CC Case No. 423/2013 , whereby the complaint was allowed ex parte against OP No. 2 with cost and so allowed ex parte against OP Nos. 1 and 3 without any cost.

          The complaint case, in brief, was as follows:

          The Complainant purchased a vehicle from  OP No.2, being the dealer,  on payment of Rs. 3,36,173/- . The vehicle was taken delivery of on 26.06.2013 together with a temporary registration certificate of the vehicle. Upon taking delivery of the vehicle the Complainant kept the vehicle in his own garage. On 06.07.13 when the vehicle was scheduled to be taken to Kali Temple at Dakshineswar the driver of the Complainant could not start the vehicle. The Sales Executive of OP No.2 was contacted  and a person named Sujauddin was sent to the Complainant’s place. But the vehicle did not start. Then another person came from the OP No.3 (workshop) but as both of them failed to start the vehicle , another person from the workshop came . The third person somehow started the vehicle but opined that there were manufacturing/mechanical defects . The vehicle was taken to the workshop wherefrom the Complainant was informed that the vehicle had some inherent defects .  The vehicle was then kept in the workshop of OP No.2. But OP No.2 did not issue any receipt for taking the vehicle into their custody. Having received no intimation about the condition of the vehicle , the Complainant sent a legal notice to the OP No.1 and OP No.2 with a request to replace the Alto Car by a new one within 3 days from the date of receiving the notice or to refund the entire amount as was paid by the Complainant to the OP No. 2 with prevailing bank interest and also to pay a compensation of a sum of Rs. 1,00,000/- . The Complainant received a letter dated 19.07.2013 from OP No.2 asking the Complainant  to take delivery of the vehicle. The Complainant did not receive any reply from OP No. 1 in the matter of replacement of the vehicle having manufacturing defect. Allegedly, OP Nos. 1 , 2 and 3 did not discharge their duty . They were rather negligent and deficient in providing service. The Complainant can not take delivery of a defective vehicle having manufacturing defect . Accordingly, the complaint was filed with prayer for direction upon the OP Nos. 1 , 2 and 3 to replace the defective vehicle by a new defect free vehicle to the Complainant or to refund the amount of Rs. 3,36,173/- with prevailing bank interest and compensation of Rs. 1,00,000/- for mental agony,  pain and harassment and also a sum of Rs. 20,000/- as litigation cost .

           Despite service of notice upon the OPs , none appeared for contesting the case  and as such the complaint  has been heard ex parte .

          Ld. Forum below having gone through the petition of complaint, the evidence-in-chief and also having considered the arguments as advanced by the Complainant and other materials on record observed that the temporary registration was made on 17.06.13 and the car was ready to move on road on 06.07.13. It was also observed that the driver of the Complainant could not start the car which being reported to OP No.2  a mechanic was sent to get the car started . The mechanic described the problem as a starting problem in the job sheet . Ultimately the vehicle was taken to the workshop . Ld. Forum below also observed that the allegations made by the Complainant in the compliant petition went unchallenged .  Ld. Forum below allowed the complaint ex parte against OP No.2 with cost of Rs. 8,000/- and also allowed ex parte against OP Nos. 1 and 3 but without any cost. The OP No.2 has been directed to replace the defective car with a new one of the same model,  In default, the OP No.2 shall pay a sum of Rs. 3,36,173/- with interest @ 12 % p.a. from the date of payment of the price of the vehicle by the Complainant within one month from the date of order. The OP has been directed to pay a further sum of Rs. 20,000/- as compensation for causing mental pain and agony , apart  from payment of Rs. 20,000/- as penalty to the State Consumer Welfare Fund.

          Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the Appellant / OP No.1 has come up before this Commission with prayer for direction to set aside the impugned order.

          The memorandum of appeal has been filed together with copies of the impugned order, the petition of complaint and other documents including the legal notice issued to the OPs .

          Ld. Advocates appearing for the Appellant and the Respondents have been heard.

          Ld. Advocate appearing for the Appellant  submitted that it was a fact that the vehicle had run 1121 Km prior to reporting of any starting problem. A defective car can not run on the road for such a distance . In fact, no expert opinion was submitted by the Respondent/Complainant in support of their contention that the vehicle has manufacturing defect. Again, the vehicle was sold to the dealer on the basis of Principal to Principal agreement. There is no privity of contract between the Appellant and the Respondent No. 1. In view of the warranty terms , the owner of the vehicle is entitled for the free repairs and / or replacement of defective parts only, if any. The replacement of vehicle or refund of price of the vehicle is not justifiable as held by the Hon’ble Supreme Court in case of Maruti Udyog Ltd. -vs- Susheel Kumar Gabgotra and Ors. , 1 ( 2006) CPJ -3 (SC) and also by the Hon’ble NCDRC in case of Maruti Udyog Ltd. -vs- Atul Bharadwaj and Ors., 1 (2009) CPJ 270 ( NC). It was also submitted that the complaint could not be contested as the Ld. Advocate entrusted for the conduct of the case failed  to appear before the Ld. Forum below . The impugned order suffers from material irregularity in sofar as no manufacturing defect could be specifically brought on record by the Respondent / Complainant. Again, there is no specific direction of the Ld. Forum below against the manufacturer and as such they are not liable to pay any compensation or cost . The impugned order deserves to be set aside.

              Ld. Advocate appearing for the Respondent No.1 submitted that it would appear from the daily order Nos. 3 and 8  in the complaint proceedings that the notices were delivered to the Appellant in due course and still they preferred not to contest the case by filing any W.V. The vehicle exposed serious starting problems from the very beginning after its delivery to the Respondent/Complainant. The dealer having purchased the vehicle from the manufacturer and then having sold the same to the consumer Complainant was squarely responsible for replacement of the defective vehicle or to refund the entire purchase value along with interest and compensation. Referring to the order of the Hon’ble National Consumer Disputes Redressal Commission as reported in III (2008) CPJ 65 (NC) , Ld. Advocate emphasized that since the notices were duly served , the Ld. Forum below proceeded ex parte and there was no illegality in such ex parte order. There is no question of setting aside the impugned order.

          Ld. Advocate appearing for the Respondent No.2  submitted that the complaint was heard ex parte by the Ld. Forum below and there was no opportunity to contest the complaint as the notice was never received by the Appellant/OP  in their address as recorded in the Tax Invoice. Ld. Forum below should have directed the Complainant to send the notice in correct address. It was also submitted that even there was no affidavit of service in respect of the Appellant/ OP No.2 and the impugned order deserves to be set aside on that score alone . It was again submitted that there was no expert report adduced by the Complainant in support of the alleged manufacturing defect in the vehicle. Even if  there was any manufacturing defect , it was the responsibility of the manufacturer to rectify the defect as alleged or to replace the defective vehicle. Dealer was not responsible for any replacement of vehicle or refund of price. Further, the Respondent No.1 should have taken the vehicle from the workshop for which intimation was repeatedly sent to him. There was no lapse or deficiency in service on the part of the dealer. The order passed by the Ld. Forum below is erroneous and deserves to be set aside

          The point for consideration is whether there is any material irregularity or legal infirmity in the impugned order for which any interference would be justified.

Decision with Reasons:

          There is no dispute that the Respondent No.1 / Complainant purchased a vehicle from the OP No.2 for a consideration of Rs. 3,63,173/- , but the vehicle was found to be defective with a serious starting problem. The Complainant demanded replacement of the vehicle or refund of the price of the vehicle from all OPs on grounds of deficiency in service and negligence in discharge of their duty.

          We have gone through the materials on record including the memorandum of appeal together with all annexure there to.

          The complaint petition was proceeded with ex parte by the Ld. Forum below as the OPs did not turn up to contest the case.

          The reason for  failure on the part of the Appellant / OP to contest the case is that though they engaged an Advocate for the purpose of contesting the case , the said Advocate did not appear before the Ld. Forum below without any intimation  to the Appellant /OP . They came to know about the passing of the impugned order from a notice in connection with the appeal No. FA/644/14 filed before this Commission.

          Again it appears from the submission of the OP No. 2/ Respondent No.2  that they did not appear before the Ld. Forum below as they did not receive any notice in the complaint case.

          On scrutiny of record it appears that the address of the dealer, i.e., Appellant in FA/644/14 /OP No.2 is 356, Canal Street , Lake Town , Kolkata – 700 048 ( Tax Invoice , Annexure -3 to the petition of complaint) , while the address of the said OP No.2 has been noted in the cause title in the complaint petition as 365, Canal Street, Lake Town , Kolkata – 700 048. It is apparent that the notice in the complaint case was not issued in the correct address of the OP No.2  which may be construed as the reason for non-service of the notice to the OP/Respondent No.2 herein  . Ld. Forum’s observation that despite service of notice , no OPs ever appeared before the Forum to contest the case by filing W.V. does not appear to be convincing at least  in case of the OP No.2 and the submission of the present Appellant that they did not get opportunity to contest the case because of failure on the part of their Advocate deserve  consideration for fresh adjudication.  As such, we are inclined to hold that the matter may be decided afresh by the Ld. Forum below after giving opportunity of  hearing to the OPs in the complaint case.  There is merit in the appeal. Hence,

                                                Ordered

That the appeal be and the same is allowed on contest . The impugned order is set aside. The matter be sent back on remand to the Ld. Forum below for fresh adjudication after giving opportunity of hearing to all parties who may adduce evidence in support of their respective averment / contentions. The parties are directed to appear before the Ld. Forum below on 03.11.2016 for  such order as may be passed by the Ld. Forum below. There shall be no order as to cost.