Judgment : Dt.25.10.2017
Shri S. K. Verma, President.
This is a complaint made by one Dr. Pradip Kumar Mohanta, s/o Late Porimal Krishna Mohanta, HIG-1/5 Niva Park Phase-III, Brahmapur, P.S.-Bansdroni, Kolkata-700 096 against The Director, Auto Hi-Link Pvt. Ltd., Kona Expressway, Braijnath Lahiri Lane, Santragachi, Howrah-711 104, praying for replacement of the car or refund of the money to the tune of Rs.10,21,330/- with statutory interest and compensation of Rs.9,50,000/-.
Facts in brief are that Complainant is a permanent resident of HIG-1/5 Niva Park Phase-III, Brahmapur, Kolkata-700 096 and is a doctor by profession. OP is the Director of Auto Hi-Link Pvt. Ltd., Kona Expressway, Braijnath Lahiri Lane, Santragachi, Howrah-711 104, West Bengal. OP has a car selling business. Complainant purchased a car “FORCE ONE EX” having Chasis No.MC1J4AFAPP004504, Engine No.D37031715, Car Registration No.WB-20AH-3164 at a price of Rs.10,21,330/- and the car was delivered on 21.1.2015. After purchasing the car, the Complainant found several defects gradually. At the time of delivery, Complainant saw the sign at OBD in Dash Board. On enquiry, OP’s Sales Manager and his team explained to the Complainant that it was due to low fuel in oil tank. Complainant fuelled the tank. But, OBD sign was still on. Complainant went through the service book let and found that OBD light in Dash Board indicates car engine related problem. Complainant contacted the Sales Manager who sent technician and they tried their best but failed. Complainant, in the meantime, noticed many other defects like – “(a) malfunction of door lock, (b) fan belt had to change due to severe noise at about 5 months, (c) tubeless stepney tyre was burst within one month, (d) brake fail was three times occurred on the high road from Sept.,2015 to Aug.2016, (c) coolen leakage, (f) malfunction of AC sos repaired 3 times like gas changed, cooling coil changed and new compressor have to be changed but still no cooling, (g) speedometer is not working, (h) leakage of engine oil, (i) less intensity of head light, (j) problem in alternator, (k) noise in belt, (l) problem in starting the car, (m) most of the time of a month Complainant’s car was in OP’s service centre due repair & maintenance at least 18 to 20 times during the one and half years, (n) the car was making high intensity noise in comparison to the other same model car of same company, (o) power window switch repaired or changed and (p) the car stopped 2 times on high road in running condition and needs to push to start.”
One fine morning the brake of car failed while it was running. The Complainant served legal notice to the Director. Complainant suffered financial loss due to the defects in car. Since OP did not remove the defects, Complainant filed this case.
OP filed written version and denied all the allegations of the complaint. Further, this OP has stated that Complainant has to prove the allegations. OP has prayed for dismissal of the complaint.
Decision with reasons
Complainant filed affidavit-in-chief against which OP filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OP filed evidence to which Complainant filed questionnaire and OP filed affidavit-in-reply.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint, it appears that Complainant has prayed for replacement of the car or refund of Rs.10,21,330/- and also compensation of Rs.9,50,000/-.
In this regard, it appears that Complainant paid Rs.10,21,330/- to the OP through Punjab National Bank. Complainant purchase the car in the month of January, 2015. As per Complainant, the defects appeared within a year of purchase. There is no dispute that the defects which Complainant noticed were not removed by the OP. Written version of the OP is also a simple denial. In the affidavit-in-chief, Complainant has reiterated the facts mentioned in the complaint petition.
In the questionnaire, submitted by the OP, it appears that OP has put questions which are evasive in nature and failed to establish that defects, as alleged, did not appear in the purchased car.
Complainant in the affidavit-in-reply has answered the questionnaire of OP and has clearly stated that no accident took place.
In the evidence, OP has stated the facts mentioned in the written version. In the evidence, OP has stated that he provided all the services which were required to be given.
So, it appears that the car within a year developed defects which could not be removed by the OP.
Ld. Advocate for OP submitted that his client is a distributor and he can provide only services and replacement of car can only be made by the manufacturer which has not been made a party.
In this regard, it is clear that OP received the price of the car on behalf of the manufacturer. So, he is duty bound to make contact with the manufacturer and pursue for the replacement of the car. Distributors are not meant only for earning commission. They are duty bound to see that the cars which they supply are free from any defects. Since the car suffered defects which OP could not remove, he is duty bound to either get the car replaced or refund the money which he accepted from the Complainant as price of the car.
Accordingly, we are of the view that Complainant is entitled for replacement of the car as prayed and if that is not done, OP is liable for refunding the price of the car to the Complainant. Complainant has prayed for compensation of Rs.9,50,000/- which appears to be excessive. However, if car is not replaced, Complainant is entitled for compensation of Rs.1,00,000/-.
Hence,
ordered
CC/9/2017 and the same is allowed in part. OP is directed to replace the car to the Complainant within two months of this order with compensation of Rs.50,000/-, failing which OP will have to pay Rs.10,21,330/- (Price of the Car) with compensation of Rs.1,00,000/- within another one month, in default the amount awarded shall carry interest @ 10%p.a. beyond the period mentioned herein from the date of this order.
