(Order dictated by Shri. B.V.Gudli, President).

ORDER

          The complainant has filed the complaint u/s. 12 of the C.P. Act, against the O.Ps. alleging deficiency in service and sale of defective Maruti Suzuki Erdiga Motor vehicle.

          2) After service of notice Opponents No.1,2, 4 and 5 are appeared through counsel and filed their objection. O.P.No.3 appeared Inperson and not filed his objection etc., 

3) Both parties have filed their affidavits and some documents are produced.

          4) We have heard the arguments of the learned counsel for the complainant and opponents. We have perused the records.

5) Now the point for our consideration is that, whether the complainant has proved sale of defective motor vehicle as well as deficiency in service and that he is entitled to the reliefs sought?

6) Our finding on the point is partly in affirmative, for the following reasons.

REASONS

7) As the pleadings are running in number of pages for the convenience the facts are narrated in brief. The allegations of the complainant are that, the complainant purchased Maruti Suzuki Ertiga-VDI BS IV, ZTM Serene Blue Car from the opponents and booked the same on 30/6/2012 with O.P.No.3 and paid D.D. bearing No.127496 of S.B.I. amounting to Rs.8,45,322/- on 7/7/2012 and got delivered the car from the opponent No.3 and registered on 6/8/2012 at Belgaum and its registration No. KA-22 P-7787. The complainant further allegations that opponents No.1 and 2 are manufacturer of Car and O.P.No.3 is having authorized Showroom of O.P.No.1 and 2 and opponent No.4 is Belgaum District Area officer and adviser and O.P.No.5 is a service provider. The complainant further alleges that after running of Car upto 500 Kms the complainant noticed problem in the Car regarding block smoke, low pickup and low mileage etc., and intimated to O.P.No.5 service centre of O.P.No.1 to 4 and noticed that the opponents have sold defective manufactured Car and the defect was rectified by O.P.No.5 at the time of first service that is after completion of 1000 Kms and on 21/7/2012 the complainant left the car for 1^st service at 1013 Kms at opponent No.5 and complaint about regarding block smoke etc. and O.P.No.5 after rectifying the complaint and assured that there will no problems henceforth. The complainant further alleges that after 1^st service when he was using the Car the block smoke problems in the Car was not rectified and after completion of running of 5648 Kms on 21/8/2012 left the Car with the O.P.No.5 for 2^nd service but the opponent No.5 failed to rectify the block smoke problem. The complainant has alleged that the several times left the car on completion of 10050 Kms, 12500 Kms, 15713 Kms and 20700 Kms on different dates but the O.P.No.5 failed to resolve the problem of block smoke. The complainant further alleges that on the advice of O.P.No.4 the O.P.No.5 changed the hitter plug and turbo kit after completion of 21101 Kms running as on 28/2/2013, and problem continued even after many services. The complainant got issued legal notice through his counsel on 16/11/2013 demanding refund of amount and opponent No.3 has given false reply on 4/12/2013 denying the certain contents of legal notice etc., The complainant prayed to direct the opponents reimburse the price of the car and other expenses and compensation of Rs.3,50,000/- and Rs.10,000/- towards cost of the proceedings.

8) On the other hand the opponent No.1,2,4 and 5 filed their objection and contended that there is no cause of action to file the complaint and complainant has no locustandi to implead O.P.No.4 as held by Hon’ble National Commission and the complaint is false and allegations are without material on record and liable to be dismissed. The opponents further contends that the complainant has brought the vehicle for commercial purpose and has no right to file the claim against the Opponent as per decision of Hon’ble Apex Court, the vehicle in question was brought for service and the vehicle is perfectly ok and defect free condition and complainant is liable and estopped from filing the complaint for his own act and conduct. The opponents further contends that, the contends of para No.2 and 3 of complaint are wrong and denied and the M.S.I.L being manufacturer of Car gives the warranty of 24 months or upto 40000 Kms from the date of delivery of the Car and as per the clause No.3 of warranty policy if the Car is found defective only obligation on the part of opponents is to repair or replace as its sole discretion with equivalent cost of the owner for the parts of labour. The opponents further contends that para No.4 of the complaint are wrong and misconceived and denied and there is no problem in the vehicle or the vehicle is having any manufacturing defect etc., Opponents further contends that on 21/7/2012 at 1013 Kms of 1^st inspection service the complainant did not report any problem and as per periodical maintenance was carried out and there is/was no defect and in Ok condition. The O.Ps. further contends that whenever the complainant brought his car for service with problems the opponents have attended the same and required parts of the car such as hitter plug or turbo charge kit are replaced and proper service has been given for the satisfaction of the complainant and there is no problem of block smoke found in the vehicle and the opponents have fulfilled the warranty obligation and during the tenure of warranty service has been provided to the complainant’s vehicle and question of suffering manufacturing defect does not arise and also that the Forum has no territorial jurisdiction to entertain the complaint and the matter is barred by limitation and complainant has concocted the false history and highly exaggerated and misleaded the forum and prayed to dismissed the complaint.

9) The O.P.No.5 has filed his objection to the main petition contending that the complainant had filed false complaint to harass the opponent and there is no contract between the complainant the opponents regarding any warranty and opponent No.1 and 2 have appointed this opponents as authorized dealer to sale the Car etc., and para No.3 and 4 of the complaint totally false and denied and the opponents contends that it is true that the complainant got is 1^st free service on 21/7/2012 and it is false to say that he got delivery of Car thinking that block smoke problem will be solved. This opponent further contends that the complainant was not satisfied with the service of opponent and also it is false that the vehicle was kept by the complainant for 10 to 15 days for 11^th time and on 11/9/2013 when the complainant brought the vehicle this opponent has conducted 8^th tests namely rail pressure checking, injector block flow, accelerator pedal valve inspection fuel pressure, boost pressure and engine compression etc., the opponent further contends that para No. 9,10 and 12 are totally false and denied specifically and opponents have not charged any amounts for replacement of parts and as well service charges and prayed to dismissed the complaint with cost of Rs.25,000/-.

10) The complainant and the opponents have filed the affidavit and certain documents are produced. The point for our consideration is that whether the complainant has proved that the vehicle purchased by him is suffering from any manufacturing defect and there is deficiency of service on the part of the opponents and unfair trade practice? After considering the facts and documents produced by both the parties and after going through the documents the facts reveals that the complainant has purchased the car from opponent No.3 and the fact that the car is sold to the complainant by the opponent is been admitted, but the question that car so sold is having manufacturing defect and there is continues block smoke coming out of the car and the average of the car is low etc., we have perused the documents produced by the complainant such as the vehicle history, the job order card, summary of work done and warranty policies. The complainant took the vehicle to the opponent to get free service done and also whenever as per the allegations of the complainant there was a block smoke coming out of the car, the opponents have attended the service and have rectified the problem in the car. This can be said because as we perused the documents no doubt there was block smoke coming out of the car, but the opponents have attended and rectified the said problem, and this can be very well observed through the summary worksheet produced by the complainant himself and we have also gone through the job sheet and found that the opponents have repaired the car and replaced the necessary parts to overcome complaint of the car whenever it was not for the service.

11) The complainant to prove that the car is sold by the opponents is persisted with manufacturing defect and continuosly giving trouble etc., has not produced any expert opinion of 3^rd person, except the documents such as job card and summary sheet of repairs. The main defence of the opponent is that the vehicle sold to the complainant is not suffering from any manufacturing defect and whenever the car was brought for the service the opponents have attended promptly and replaced the part required at the time of repairs. Moreover, the point is to be noted that it is not the case of the complainant is that the opponents have not attended the service whenever the complainant took the vehicle for repairs, but it is the case of the complainant is that as there was a block smoke coming out of the car, therefore there is manufacturing defect in the car and the opponents have sold the same without the knowledge of the complainant. But the complainant to show that the car so supplied was having inherent manufacturing defect and to established this fact the complainant has not produced any expert evidence.

12) In reported ruling in 2016 (1) CPR 329 (NC) of Hon’ble National Commission between Negi Sign Systems And Supplies V/s. Rijulize Jacob.

Important Point:

 If only a part of machine is defective, complainant is entitled to replacement of that part and not to refund of price of machine.

After going through the above decision the Hon’ble National Commission has held that the onus is upon the complainant to prove the machine purchased by him suffers from manufacturing defects and if no technical evidence is produced to prove that the machine is defective, cannot establish the manufacturing defect in the machine. The Hon’ble Commission further held that if only the part of machine is defective the complainant is entitled for replacement of that part or refund of cost of the part so defective. In this case all along the allegations of the complainant is that the car is regarding block smoke, hence the complainant is not entitled for reimbursement of entire amount paid to purchased the car. But as the ruling cited above the complainant has to establish with technical evidence to prove manufacturing defect, in this case the same is absent. Hence the prayer of the complainant cannot be entertained.

13) The point to be noted here is that the complainant has purchased the car in the year 2012 and it is allegation of the complainant that after completion of 1013 Kms the car started leaving block smoke and there was low average etc., Therefore even though the opponents have attended for every problem of the complainant, as we can noticed from number of job sheets produced by the complainant and also the summary of work done from 21/7/2012 to 7/12/2013 and during this period on number of time the block smoke coming out of the car has been noticed and also it is the opponents we have replaced the required parts to stop block smoke. Therefore as the car is started giving trouble within span of few Kms the complainant is entitled for the compensation.

14) Taking into consideration of the facts, evidence on record and the discussion made here before deficiency in service on the part of the O.Ps. have been partly proved.

15)  Accordingly, following order.

ORDER

          The complaint is partly allowed.

          The opponents No.1 to 5 jointly and severally are directed to repair the car of the complainant and make it worthy and replace the necessary parts to overcome the block smoke coming out of the car by providing free service. The opponents shall comply the order within 30 days from the date of order, if the complainant takes the car for service with the opponents within the stipulated period as above.

          Further the opponents No.1 to 5 jointly and severally are directed to pay Rs.10,000/- towards the compensation for mental agony suffered by the complainant and Rs.3,000/- towards the cost of the proceedings.

           (Order dictated, corrected & then pronounced in the Open Forum on this 26^th day of May 2016).

          Member                         Member                         President.

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