Complainant through Lrd. Adv. Surve
Opponent No. 1 absent
Opponent No. 2 through Lrd. Adv. Smt. Naik
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Per : Mr. V. P. Utpat, President Place : PUNE
// J U D G M E N T //
(23/04/2014)
This complaint is filed by the consumer against the manufacturing company and the dealer of the motor car, for deficiency in service under section 12 of the Consumer Protection Act, 1986. The brief facts are as follows,
1] The complainant is a senior citizen and resident of Erandwane, Pune – 4. The opponent no. 1 is the manufacturing company and the opponent no. 2 is the dealer of the opponent no. 1. The complainant had purchased car from the opponent no. 1 through opponent no. 2 on 23/11/2010. At the time of delivery of the car, inspection was not given to the complainant; hence complainant could not verify the defects in the car at that time. When he brought the car to home, he found various defects i.e. there was unfinished portion of tin sheet beneath the bonnet, left side running board was in damaged condition, seat adjustment lever is ripping into the leather of the seat, seat covers were in damaged condition, large and uneven spacing between the doors and frame, inside handles above the door were not properly fitted, uneven gaps on the fitting of the exteriors. After the first free servicing of the vehicle, the complainant had contacted numerous officials of opponent no. 1 and 2 and requested to rectify the defects. The car was given to the opponent no. 2 on 6/6/2011 for carrying out repairs and it was returned on 26/8/2011, during that period complainant could not use the vehicle. According to the complainant, the vehicle was sold out without carrying out any test and examination. Hence, the complainant had issued notice to the opponent for replacement of the car and the said notice was not responded. Hence, the complainant has filed present complaint for refund of the price of the car. In the alternatively, the complainant has asked replacement of the car and compensation of Rs.50,000/- for mental and physical harassment and cost of the litigation.
2] The opponent no. 1 though duly served remained absent, hence the complaint proceeded ex-parte against the opponent no. 1.
3] The opponent no. 2 resisted the claim by filing written version. It is admitted by the opponent no. 2 that the complainant had purchased the said car, but it is flatly denied that there was deficiency in service on the part of the opponent no. 2 and there are defects in the car. According to the opponent no. 2, the defects, which were alleged by the complainant, were occurred due to rash and negligent handling of the car and those defects were rectified at the instance of the opponent no. 2. Now there is no defect in the car and there is no deficiency in service on the part of the opponent no. 2. It has prayed for the dismissal of the complaint.
4] After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for the determination of the Forum. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1. | Whether complainant is entitled for the replacement of the car? | In the negative. |
2. | Whether complainant is entitled for compensation? If yes, on which count? | In the affirmative, on the count of mental and physical sufferings and cost of the litigation. |
3. | What order? | Complaint is partly allowed. |
REASONS :-
5] The admitted facts in the present proceeding are that the complainant had purchased car in dispute from the opponent no. 1 through opponent no. 2. It is the case of the complainant that, there were various manufacturing defects in the car; hence he had faced inconveniences. He had informed these inconveniences to the manufacturer as well as the dealer of the car. One of the grievance of the complainant was that, the right hand side front portion under the
bonnet was so sharp that one can easily get injured. Photograph of the said part has been produced by the complainant. The complainant had also made grievances about the left side running board, seat adjustment, seat cover, uneven spacing between the doors and frame, inside handles etc. It reveals from the written version of the opponent no. 2 that, it has rectified all the defects without charging any amount. The learned Advocate for the opponent no. 2 argued before the Forum that, there was no warranty as regards replacement of the car. Hence, the complainant is not entitled for the replacement of the car or refund of the consideration. The opponent drew attention of the Forum to the warranty manual. It is produced before this Forum and it reveals from the warranty manual that warranty covers repairs needed to correct defects in materials or workmanship. There is no warranty as regards replacement of the entire vehicle. Moreover, at this juncture the complainant has no grievance about the defects, which were rectified by the opponent no.2. But according to him, these defects were in existence at the time of purchasing the car and it is not expected by him that, there are certain defects in brand new car. Certainly, a customer purchasing a brand new car must not have expectation of certain defects in the car. Even though, these defects are rectified, the customer must have been suffered a lot due to those defects. He must have been disturbed, as he had to spent huge amount, in lacs, while
purchasing the car. As regards the opponent no. 2, it had provided efficient service without charging any amount. Then, it can be said that there is no deficiency in service on the part of the opponent no. 2. However, it reveals from the record that the opponent no. 1 has not resisted the complaint; hence the opponent no. 1 is liable to pay compensation.
6] The learned Advocate for the opponent no. 2 argued that, the car can not be replaced, as the complainant has used this car for long period and all the defects are rectified. In that context, the learned Advocate for the opponent no. 2 has strongly relied upon the judgment in “Maruti Udyog Ltd. V/S Susheel Kumar & others” in civil appeal no. 3734/2000 dated 29 March 2006. In that proceeding it has been observed that the warranty was given for the replacement of defective parts and not as regards replacement of the entire car. In the another judgment between “Hindustan Motors Ltd. V/S Roy and Anr.” It has been observed that, if car is used for long period, it can not be replaced. In that proceeding, it has also been pointed out that the car has been run for 39,740 kms. and used for two years. In those circumstances, the car can not be replaced. After considering the above quoted judgments, it is the considered opinion of the Forum that the complainant is entitled for compensation on the ground of physical and mental suffering and cost of the litigation. Amount of Rs.25,000/- in lump sum on all these counts would meet
the ends of justice. In the result this Forum answers the points accordingly and pass the following order.
** O R D E R **
1. The complaint is partly allowed.
2. The opponent no. 1 is directed to
pay an amount of Rs. 25,000/- (Rs.
Twenty Five Thousand only) to the
Complainant on the ground of
compensation for mental and physical
sufferings and cost of the litigation,
within six weeks from the date
of receipt of copy of this order.
3. Complaint stands dismissed against
The Opponent no. 2.
4. Copies of this order be furnished to
the parties free of cost.
5. Parties are directed to collect the sets,
which were provided for Members within
one month from the date of order, otherwise
those will be destroyed.
Place – Pune
Date- 23/04/2014
