BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 7th July 2015
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 64/2015
Complainant/s: Ashokkumar Devaraj Bagamar,
Age: 62 years, Occ: Business, R/o.Gajendragad, Tq. Ron, Dist.Gadag.
(By Sri.M.A.Pujar, Adv.)
v/s
Respondent/s: 1. The Manager, Swasti Nissan (A unit of Bellad Automobiles Pvt. Ltd.), Bellad Automobiles Pvt. Ltd., Bellad Chamber 2, Unkal Cross, Vidyanagar, Hubli 580031.
2. Managing Director, Nissan Motors India Pvt. Ltd., A.S.V. Ramana Towers, 37 and 38, Venkatanarayan Road, T.Nagar 600017.
(Exparte)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondents to refund the value of the car along with interest @18% P.A., by holding that the respondents have committed deficiency in service and to award compensation of Rs.1 lakh towards the sufferings and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, complainant is the Chairman of Bhagavan Mahaveer Jain Ayurvedic Medical College Gajendragad & for his personal use he has purchased Nissan Sunny model car by paying Rs.9,09,098/-. While the car was in usage and while the complainant was moving in the said car to attend his work he applied break, during that time there develops horrible sound in the car as it like sounds of lorry. Thereafter the complainant approached the respondent for needful repair. Even after payment of repair charges and got repaired several times the respondents did not resolved the defects completely. Even today the same sound is emitting out. Through e-mail dtd.27.06.2014 the complainant contacted the respondent and requested to set right but not attended. Hence, on 11.10.2014 the complainant wrote letter to the respondents, even then also the respondent did not attended and set right. Because of inconvenience in the journey and tension the complainant develops BP and subjected to ill health. Accordingly the complainant on 12.10.2013, 31.01.2014, 06.03.2014, 15.03.2014 and on 01.08.2014 approached the respondents and attended repair but respondent failed to resolve defects totally, as such the respondents have committed deficiency in service. Hence, the complainant filed the instant complaint praying for the relief as sought.
3. Despite service of notice the respondents remained absent. By placing the respondents exparte, exparte proceedings initiated.
4. On the said pleadings the following points have arisen for consideration:
1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?
Complainant filed sworn to affidavit, relied on documents. Heard. Perused the records.
Finding on points is as under.
1. Affirmatively
2. Accordingly
3. As per order
Reasons
Points 1 and 2
5. By looking into the invoice and documents it is evident that the complainant purchased the car in question from the respondent.1, manufactured by the respondent.2 on 26.10.2012.
6. Since the exparte proceedings have been initiated against the respondents the complaint averments stood unimpeached. However it is the complainant who approached this Forum by making allegation against the respondents with regard to deficiency in service. Under those circumstances the burden lies on the complainant to establish his case with cogent and appulsive evidence.
7. The complainant baldly made allegation that the car in question is suffering from defects but he has not adduced any evidence in support of his contention that the said alleged defects shot out is due to manufactural defects. In this regard the complainant did not adduced any evidence either by examining any mechanics or any experts. The complainant except producing the invoice he has not produced warranty card to show that the defects have been shot out within the warranty period and the defects have been covered under the warranty coverage. As per Invoice Ex.C1 the vehicle was purchased on 26.10.2012 and this fact is further rectified by looking into the Ex.C2 i.e. delivery note. The complainant produced Ex.C4(a) service vehicle inventory sheet dtd.15.03.2013 to that day the vehicle in question had rund and covered 11065 kms., but in the said inventory sheet no defects with regard to the break drum has been mentioned. On seeing Ex.C4(b) R.O.Bill dtd.12.10.2013 while at campaign checkup they have suggested for break master cylinder replace, but nothing is came out in the said Exhibit, whether cylinder is replaced or not. At the same time Ex.C5(d) another R.O.Billing dtd.31.01.2014 reveals the vehicle has been repaired and serviced which was met with an accident. The complainant either in pleadings, evidence or in the argument time has not disclosed anything with regard to the vehicle was met with an accident or not. The complainant brilliantly drafted the pleadings by suppressing the real facts when for the first time the sound was emits out while applying the break is not comingforth and in the absence of warranty card and due to lack of evidence with regard to the manufactural defects it is not possible to accept the prayer of the complainant & to hold the vehicle in question is suffering from manufactural defects and is within warranty period. However as discussed supra already the vehicle has covered more than 11000 kms., from the date of delivery. Under those circumstances it is not proper to hold the vehicle is suffering from innate manufacturing defects and to order for replace new one or to order for refund the value of the car. At its best the respondents could be directed to resolve the defects to the full satisfaction of the complainant on payment of cost. However by looking into the documents produced reveals the complainant has approached the respondents and narrated the defects but the respondents have not attended the same. Under those circumstances complainant is entitled only for cost of the proceedings.
8. In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmatively and accordingly.
9. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
Order
Complaint is allowed in part. The complainant is directed to approach the respondent.1 immediately after this order along with his car and deliver the same for repair under proper acknowledgement. In turn the respondent.1 is to take up repair works in warfooting manner and to resolve the defects which have been reoccuring on payment by furnishing detailed job card with all information of the works attended within 30 days from the date of receipt of delivery of the car by the complainant to the respondent.1 garage along with Rs.1000/- towards cost of the proceedings. Failing to attend the works even after left it for repair under acknowledgement the respondent shall bare cost of the repair charges that may be incurred in set righting the defects which have been shot out.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 7th day of July 2015)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
