FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is an application U/s 12 of the CP Act, 1986 filed by the complainant one Susmita Basu wife of Late Sajal Kumar Basu against the OPs.
Complainant stated in his petition of complaint that the OP-1 is a manufacturer of Tata Nixon Car and the OP-2 is the dealer or seller of the car. The complainant had purchased one Tata Nixon Car bearing Reg. No. WB 02AP3767 on 22.08.2019 at a consideration of Rs. 7,48,998/- only from the OP-2 having statutory warranty for her personal use.
It is further stated that the complainant has paid entire valuation of the subject car including insurance charges valid till mid night of 19th day of Aug, 2020 and the complainant further stated that on 22.08.2019 she took the delivery of new car from the OP-2 and proceeded towards her residence but on reaching at Hati Bagan at Bidhan Sarani Crossing, the complainant found some trouble in smooth driving of the new car and suddenly found white fog came out from engine. Immediately, the complainant stopped the engine of the car and made contact one with Mr. A Guha Roy attached with the OP-2 and requested him to do something but he refused to help the complainant in any manner. Then the complainant lodged a written complaint at Shyampukur PS against the OP-2 and when the Police Officer of Shyampukur PS made contact with OP-2 then the OP-2 took the car at their workshop on 23.08.2019 .
The technician of the OP-2 had examined the car and changed the Radiator Hose and Coolant and handed over to the complainant on 23.08.2019.
It is further alleged by the complainant that again on 20.09.2019 when the complainant was driving the car, she faced same problem in the engine and suddenly the car was stopped in the middle of the road. Thereafter, on repeated request, the OP-2 arranged for a towing service for taking the car at their workshop and replacing 7/8 items. Thereafter, the OP-2 handed over the subject car to the complainant on 21.09.2019 but again on 15.10.2019, the complainant faced same problem with the subject car when it was stopped on road again, the OP-2 after getting information from the complainant repaired the car by replacing the Hose Clamp, Coolant etc.
It is alleged by the complainant that the subject car was manufactured by the OP-1 only in the year 2019 and within 2 to 3 months from the date of purchase of the new car, complainant faced several problems with the car in question then finding no other alternative, she issued a demand notice through her Ld. Advocate dated 03.10.2019 under Speed Post to the OP with a demand to replace subject car with a new car of same make and model. The said notice was duly served upon the OPs and the OP-1 replied the notice with request to use the car and there will be no such issue in future but the complainant again faced the problem on 15.10.2019. The OPs did not address the request of the complainant to replace the defective car by a new one.
Such conduct of the OPs is amounting to deficiency in service and unfair trade practice. Hence, the petition of complaint is filed by the complainant with a prayer to give direction upon the OPs to hand over the Tata Nixon Car in place of defective subject car to the complainant with fresh warranty and also prayed for giving direction upon the OPs to pay a sum of Rs. 2,00,000/- to the complainants for harassment, mental pain and agony, unfair trade practice and deficiency in service.
The OP-1 has contested the claim application by filing a WV denying all the material allegation leveled against it.
It is alleged by the OP-1 that the petition of complaint as filed by the complainant is not a dispute within the definition of “Consumer Dispute” under the CP Act, 1986 as there is nether any manufacturing defect proved in the vehicle in question nor any deficiency in service being established against the answering OPs. So, petition of complaint is not maintainable and liable to be dismissed.
Admittedly, the complainant took the delivery of the car in question from M/s Dhuli Chand Motors Pvt. Ltd. i.e. OP-2 on 22.08.2019 and on the way back to home the complainant faced certain issues with the car in question and informed the same to the OP-2. On inspection the men of the OP-2 found that the Radiator Bottom Hose of the car and the Spring Band Clamp was refitted and coolant was refilled free of cost then being satisfied with the jobs of the OP-2, the complainant took delivery of the car in question on 23.08.2019.
it is also admitted fact that on 18.09.2019 again the subject car was towed to the service centre of the OP-2, when the subject car has covered a distance of 156 KM with the complaint that the Radiator, Lower Hose came out and the Coolant got drained out. The job car was opened on 20.09.2019 and the radiator hose was replaced. The Radiator Hose claim was replaced with the worn clamp and the coolant was refilled and thereafter the car was delivered to the complainant on 20.09.2020 at about 5.30 PM. It is also admitted fact that since the subject car of the complainant was a brand new car through investigation as was done by the service team of the OPs 1 and 2 wherein it is found that the clamp of the subject car was not functioning properly. The service team taking note of the same replaced the existence Clamp which was holding the Radiator Horse with a new clamp free of cost. The service men of the OPs 1 and 2 also found that the issue of Radiator Hose coming out as because the clamp used was not performing properly and such issue concerning the Clamp cannot treated as manufacturing defect. So, the contention of manufacturing defect as alleged by the complainant has no basis at all in absence of expert opinion.
The OP-1 further stated that the cars and vehicles manufactured by the OP-1 are marketed only after being approved by the Automotive Research Association of India (ARAI) and at the time of manufacture of the vehicle and the car. It is thoroughly inspected for control system , quality check and prescribed before passing through factory work for dispatch to the authorized dealer appointed on a “principle to principle” basis for the same cars and vehicles. Admittedly, the complainant purchased the subject vehicle being Tata Nexon Car having chasiss No. MAT627221KLD220607 engine No. REVTR N03DPYK 42671 and Reg. No. WB 02AP 3767 from the OP-2, the authorized dealer of the OP-1 on 15.07.2019 and the vehicle was registered on 22.08.2019. The OP-1 has no vital role in the sale transaction except of manufacturing of the subject vehicle. So, the allegation about the deficiency in service on the part of the OP-1 has no basis at all. Rather, the complainant made misconceived allegation and manufacturing defect. It is clearly established that there is no deficiency in engine of the subject car. The issue which occurred is that the Radiators Hose came out as because the clamp used is not performing properly. So, the petition of complaint has no basis at all. Rather, the complainant has filed this case with malafide intention and the claim of the complainant to handover new Tata Nexon Car in place of defective subject car with fresh warranty is denied. Complainant is not entitled to get any sort of compensation from the OP-1. The complainant has no cause of action to file the case. The petition of complaint is liable to be dismissed with cost.
The OP-2 did not contest the case by filing WV so, the case do run ex parte against the OP-2 vide order dated 25.01.2021.
In view of the above fact and circumstances, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
In view of the fact and circumstances of this case and on careful consideration of the materials on record, it appears that this commission has got the territorial as well as pecuniary jurisdiction to try this case. From the material on record, it is also revealed that the complainant purchased the vehicle in question which was registered on 22.08.2019 and immediately after purchase and delivery of the subject car, admittedly, he faced several mechanical problems with the subject car and informed the matter to the OP-2, the authorized dealer of the OP-1. But on repeated occasion, the same was going on. Then the complainant demanded to replace the subject car by a new one with fresh warranty. The OPs denied the same and the complainant has filed this case on 09.12.2019 i.e. within the same year .
Under such circumstances, it is needless to mention here that the complainant has filed this case before this forum with the period of limitation. Thus, in short, the case is well maintainable in its present form and in eye of law.
It has already been discussed the complaint about purchased the vehicle and registered on 22.08.2019 on which he was taking the delivery of the subject car from the OP-2 and within 2 to 3 months from the date of purchase, he faced several mechanical troubles of the subject car. So, cause of action raised on and from 22.08.2019 which was continuing till fling of this case. From which it is held by this forum that the complainant has/had sufficient cause of action to file this case.
It is admitted by the contesting OP-1 that the complainant purchased the subject vehicle being one Tata Nexon Car being Reg. No. WB 02AP 3767 on 22.01.2019 at a consideration of Rs. 7,48,958/- from the OP-2 having statutory warranty. From which it is proved that the complainant is a consumer within the ambit of CP Act, 1986.
Now it has to be considered by this forum whether there was any sort of deficiency in service on the part of the OPs ie OPs 1 and 2 or not. The OP-1 i.e. the manufacturer of the subject car Tata Motors Ltd. clearly admitted in its WV and evidence that the complainant purchased the subject vehicle from the authorized dealer of the OP-1 ie OP-2, Duli Chand Motors Pvt. Ltd. situated at Shrach Towers, 686, Anandpur, E. M. By Pass, near Rubi Hospital. The OP-1, manufacturer also admitted the fact that since purchasing the vehicle, the complainant faced several problems with the subject vehicle on the very date of taking delivery of the car i.e. 22.08.2019 when the complainant proceeded towards her residence at Hati Bagan at Bidhan Sarani Crossing, the complainant found some trouble in smooth driving of the new car and suddenly found white fog came out from the engine of the car in question.
After taking police help, she could be able to contact with the OP-2 and the mechanics of the OP-2 examined the subject car and changed Radiator Hose and Coolant. Thereafter OP-2 to handover over the car on 23.08.2019. Again on 20.09.2019 the car was suddenly stopped on road when it was running and again the mechanics of OP-2 arranged for a towing service for taking the car at their work shop and after replacing 7/8 times, the OP-2 returned the subject car to the complainant on 21.09.2019 and third time, on 15.10.2019 again, the complainant faced the trouble on road when she was travelling with her family and immediately made contact with the OP-2 who repaired the car by replacing the Hose Clamp and Coolant and etc. so, all the incidents are admitted by the contesting OP-1 in its evidence and WV. Moreover, from the evidence on record this forum observed that within 2 to 3 months from the date of purchasing of subject new car. It was giving mechanical trouble to the complainant by several means. When a person purchased a new car he or she will hope that it will give him make her the best service and no body purchased a car with an intention that he or she will make complaint without having any basis against the manufacturer and dealer for wrongful gain. In the instant case, on a close scrutiny of the evidence on record and the fact and circumstances of this case and also considering the several judgments as cited by the OP-1 which have no application in respect of fact and circumstances of this case. It is revealed that there was mechanical defect in the brand new car. Being a renowned manufacturer of car and vehicle, the OP-1 has marketed the subject car without inspecting thoroughly which is not expected from the OP-1.
The OP-1 submitted in its WV, evidence and argument that without having any ex pert report, the complainant cannot alleged that there was manufacturing defect in the subject car. On the contrary, Ld. advocate for the complainant argued that it is fact that in case of manufacturing defect expert report is required but in so many cases it is observed by the Hon’ble Apex Court that when it is found that there are so many defects in the subject car within 2 to 3 months from the date of purchase which was facing by the complainant as and when she tried to run the vehicle then being an ordinary prudent anybody can state that there was manufacturing defect in the subject vehicle and the mechanic of the OP-2 in every case have examined the vehicle and replaced several items which was very unfortunate for any buyer like the present complainant of this case who purchased the subject car with so many dreams and hopes at a consideration of Rs. 7,48,958/- from the OP-2 being Reg. No. WB 02AP 3767 but all the dreams and hopes of the complainant are ruined by facing several mechanical troubles on several times within 2 to 3 months from the date of purchasing brand new Tata Nexon Car in question.
Under such circumstances, the complainant highly requested the OPs to replace the defected subject car with a new one but the OPs flatly denied her request they also denied to give any sort of compensation. It is held by this Forum that Such conduct of the OPs is nothing but deficiency in service, negligence which caused harassment, mental pain and agony.
So, in view of discussion made above, this commission of opinion that there was deficiency in service on the part of the OPs and they are bound to replace the defective subject car by a new one and also liable to pay compensation to the complainant.
On the basis of discussion made above, this forum is of view that the complainant could be able to prove her case against the OPs beyond all reasonable doubts and the complainant being a consumer within the ambit of CP Act, 1986 and is entitled to get relief as prayed for.
All the points of consideration are considered and decided favourably to the complainant
The case is properly stamped.
Hence,
Ordered
that the case be and the same is decreed on contest against the OP-1 and ex parte against the OP-2 with cost of Rs. 5,000/- only.
The complainant do get the decree as prayed for
The OPs are directed to replace the defective subject Tata Nexon Car by a new one to the complainant with fresh warranty within 45 days from this date of order.
The OPs are further directed to pay compensation of Rs 1,00,000/- only to the complainant either jointly or severally for deficiency in service, harassment, mental pain and agony along with litigation cost of Rs. 30,000/- only within 45 days from this date of order.
Copy of the judgment be uploaded forthwith on the website of the commission for perusal.
