West Bengal

Paschim Midnapore

CC/78/2011

Sri Laxman Ch. Bhunia - Complainant(s)

Versus

STAR INDIA AGENCY - Opp.Party(s)

25 Jan 2012

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

Complaint case No. 78/2011                                              Date of disposal: 25/01/2012                               

BEFORE : THE HON’BLE PRESIDENT :  Mr. P. K. Sarkar.

                                                     MEMBER :  Mr. G. B. Bandyopadhyay.                                                                         

 

For the Complainant/Petitioner/Plaintiff: Mr. S. Bhattacharya.

For the Defendant/O.P.S.                          : Mr. S. M. Paul.

     Sri Laxman Ch. Bhunia, S/o-Late Kedarnath Bhunia, Vill & P.O.-Gatta, P.S:  

     Narayangarah, Dist Paschim Medinipur………….Complainant.

                                                              Vs.

1. STAR INDIA AGENCY at Rupnarayanpur, P.O.-Kharagpur, P.S.-Kharagpur(L), Dist Paschim Medinipur
2. Mahindra & Mahindra Ltd., of Kyd. Street, 3^rd Floor, Kolkata-700016……….Ops. 

      The complainant’s case, in brief, is as follows

                    On 25/6/10 the complainant purchase one Mahindra GIO LC 2WD B311 load carrier from the Op No.1, the authorized dealer of the Op. No.2, with financial assistance from Mahindra & Mahindra Financial Service Ltd.  After 2-3 months of its running, the vehicle developed several problems and the complainant approached the Op. No.1 on several occasions for its repairing, but the vehicle could not be run smoothly even after repairing of the same by the Op. No.1 time to time.  According to the complainant, the engine of the vehicle was defective from very beginning and as such the vehicle could not be used properly for collecting milk from different cooperative societies, for which the vehicle was hired by the Midnapur Cooperative Milk Producers’ Union Ltd., and as a result the complainant had to suffer monetary losses. In view of recurrence of various problems in the vehicle, the complainant requested the Sales Manager of Op. No.1 for replacement of the vehicle  on several occasions, but the Sales Manager assured the complainant to rectify the problems of the vehicle. The vehicle was kept in the custody of the Op. No.1 for long time on several occasions, but the mechanic of the Op. No.1 failed to remove the defects of the vehicle permanently, and as a result the vehicle is lying idle at present. As such the complainant filed the instant complaint  praying for issuance of

Contd………….P/2

 

- ( 2 ) -

directions upon the Ops to the replace the vehicle in question by a new one and to pay compensation of Rs.50,000/- for the loss suffered by the complainant.

            The Op. No.1 contested the case by filing their written objection contending, inter alia, that, after purchasing the vehicle the complainant ran the vehicle for about 2129 K.M. and thereafter produced the same on 17/08/10 for its first servicing without alleging any defect in the vehicle; that subsequently the complainant produced the vehicle ten times before them in between 25/06/10 and 01/06/11 alleging certain defects in the vehicle and only on two occasions the vehicle was held up in their workshop for repairing of the defects;  that the complainant never complained of any deficiency in service regarding any major defects in the vehicle; that they made endeavour to satisfy the complainant  by repairing the defects in the vehicle whenever the vehicle was produced before them with any complaint;  that the complainant never recorded any dissatisfaction in the job cards regarding the service provided by them whenever required; that the complainant ran the vehicle for a consideration period after last servicing of the same  but filed the instant complaint on false and absurd allegations;  that the complainant having failed to establish the alleged manufacturing defect in the vehicle by any expert’s opinion, is not entitled to get  replacement of the vehicle by a new one as sought for; and that there was no deficiency in service on the part of the Op. No.1 was alleged.

                The Op. No.2 also contested the case by filing their written version contending, inter alia, that there was neither any manufacturing defect,  nor any non rectifiable inherent defect in the engine of the vehicle in question to warrant replacement of the vehicle as sought for by the complainant; and that the opinion of an impartial technical expert is required to prove that there was a manufacturing defect or any non rectifiable defect in the engine of the vehicle in question to justify the claim for replacement of the vehicle by a new one as sought for by the complainant.

The points for decisions are :

1. Whether the complainant is a consumer within the meaning of the section   2 (i) (d) (ii) of the C.P. Act, 1986 ?
2. Whether the Ops. are deficient in service within  the meaning of section 2 (1)(g) read with section 2(1)(0) of the C. P. Act, 1986 ?  
3. Whether the complainant is entitled to get the reliefs as sought for ? 

Decisions with reasons : 

Point No.1:

               Admittedly the complainant purchased the Mahindra GIO LC 2WD B 311 load carrier from the Op No.1 on 25/06/10.  According to the complainant, he ran the vehicle smoothly for

Contd………….P/3

 

- ( 3 ) -

2/3 months after purchasing the same but subsequently the vehicle could not be used properly for development of various problems in the engine of the vehicle; and that the Op No.1 temporarily removed the defects of the engine of the vehicle whenever the vehicle was produced before them but they failed to remove the defects permanently and did not replace the vehicle with a new one  in spite of  repeated demands by the complainant within the warranty  period of the vehicle.  Under the given facts and circumstances, the complainant must be held to be a consumer of the Ops for the alleged deficiency in service undertaken by them at the time of the sale of the vehicle.

Point Nos. 2 & 3:

              The copies of the job cards marked exhibits A to I disclosed that the complainant produced the vehicle in question before the Op No.1 ten times with certain complaints regarding mal functioning of different parts of the vehicle during the period from 17/01/10 to 01/06/11 and on each occasion the Op no. 1 removed the defects complained of to the satisfaction of the complainant.  It may be noted that lastly on 01/06/11 the complainant produced the vehicle with starting problem and the same was rectified by the Op no.1 to the satisfaction of the complainant. So it is evident from the copies of the job cards produced by the Op no.1  that the  Op No.1 removed the defects of the vehicle in question whenever such defects  were brought to their notice during the warranty period of one year from the date of purchase of the vehicle on 25/06/10.  It transpired from the Owners’ Manual filed that the manufacturer of the vehicle in question, i.e. the Op No.2, offered one year or 60 000 k.m. warranty from the date of delivery of the vehicle to the purchaser and undertook to repair or replace the parts of the vehicle which were considered to be the cause its malfunctioning, free of cost.  The Op No.1 seems to have discharged their obligation to repair or to replace the defective parts of the vehicle in question during the period of warranty for one year from the date of its purchase on 25/06/10.

             It is submitted on behalf of the complainant that the Op No.1 failed to cure the recurring defects in the engine of the vehicle in question and such recurring problems in the engine occurred due to manufacturing defect in the engine of the vehicle and as such the Ops were obliged to replace the vehicle by a new one under warranty given at the time of purchase of the vehicle. In support of their contention the complainant examined one Swapan Mahala as PW-1 who claimed to be a motor mechanic attached to the garage of one Anup Kumar Gayen at Ganuda.  In his evidence the PW-1 asserted that about 2/3 months back the complainant called him to repair his Mahindra four wheeler (GIOD model) and as such he took the vehicle to their garage  from Egra More and after opening the engine of the vehicle he found that the engine was getting heated for improper setting of the Crank, Valve and Liner Piston of the engine and as

Contd………….P/4

 

- ( 4 ) -

such the vehicle could not bear the prescribed load due to such over heating of the engine and used to stop when the engine was over heated; and that he advised the complainant to produce the vehicle before the company concerned  for rectification of the defects; and that subsequently complainant informed him that in spite of servicing of the engine by the company concerned, the problem of the engine could not be permanently rectified. From the cross-examination of the PW-1 it transpired that he read up class VIII and he is not a qualified motor mechanic. He also admitted in his cross-examination that he did not drive vehicle to see whether the vehicle was being stopped due to over heating of its engine and that he could not detect the cause of such over heating of the engine. In view of the admission of the PW-1 in his cross-examinations, he can not be considered to be a competent person to prove as to whether there was any manufacturing defect in the vehicle causing recurrence of the problems of its engine as contended on behalf of the complainant.  It may also be noted that the PW 1 is said to have examined the vehicle in question about 2/3 months back, whereas the warranty of the vehicle expired on 25/06/11, and as such the evidence of the PW-1 regarding the alleged defect in the engine of the vehicle in question can not be taken into consideration to ascertain liability of the Ops, if any, under the warranty given at the time of purchase of the vehicle. 

             In view of the aforesaid facts and reasons, we are constrained to hold that the complainant having failed to establish that there was a manufacturing defect in the vehicle in question is not entitled to get the relief sought for before this Forum.                 

                                                Hence,

                                                              it is  ordered

                                                                                    that the complaint be dismissed on contest.            

            The parties do bear their respective costs.         

            The case is, thus, disposed of.

Dic. & Corrected by me.

                                                                   I agree.                          

              

         President                                           Member                                  President

                                                                                                              District Forum

                                                                                                        Paschim Medinipur.