Karnataka

Belgaum

404

Anand S Tankasali - Complainant(s)

Versus

The Proprietor, Shivani Automoblies Gokak - Opp.Party(s)

S.S. Hanchinal

15 Jun 2015

ORDER

(Order dictated by Shri. V.S. Gotakhindi, Member)

ORDER

          The complainant has filed the complaint u/s. 12 of the C.P. Act, against the O.Ps. alleging deficiency in non replacing new  vehicle or reimbursement of cost of the vehicle.

          2) The O.Ps. filed objection stating that the complaint is not maintainable and complainant has no locustandi to file the complaint. The O.Ps. further contended that it is true the complainant has purchased Mahindra Rodeo two wheeler from O.P.1 on 24/10/2012 and denied that the complainant has obtained loan to purchased the said vehicle. The O.Ps. denied that the vehicle average now is 30 Kmpl, and same is false and baseless that vehicles average has been reduced. The O.Ps. further contended that on 3/12/2013 complainant brought the vehicle to O.P.1 and we have promise to replace the said vehicle are been denied. The O.Ps. further contended that the complainant has not service his vehicle time to time and never complained as alleged in the complaint and only with the intention to get new vehicle the complainant has falsely filed this complainant hence liable to be dismissed and there is no deficiency of service on the part of the O.ps. etc.,

3) The complainant and O.Ps. have filed their affidavits and certain documents are produced. 

          4) We have heard the learned counsel for the complainant and O.Ps. and have perused the records.

5) Now the point for our consideration is that, whether the complainant has proved any deficiency in service on the part of the O.Ps. and that the complainant is entitled to the reliefs sought?

6) Finding on the point is in Negative, for the following reasons.

REASONS

          7) The complainant filed this complaint alleging deficiency of service on the part of the O.Ps. contending that on 24/10/2012 the complainant purchased Mahindra Rodeo model two wheeler from O.P.1 under Mahindra Finance Corporation by paying Rs.1,690/- for 36 months as a installments and ¼th of the amount paid at the time of purchase of the vehicle and the said vehicle was register with RTO Gokak and at the time of sale the O.P.1 stated that the average of the vehicle is 60 Kmpl. The complainant alleged, he noticed the average of the said vehicle he purchased is giving 30 Kmpl average evenafter service of the said vehicle. The complainant further alleges that on 3/12/2013 he went to O.P.1 and the said O.P. stated that he will replace the vehicle with the new one and the complainant with a hope waited for the same but till 21/4/2014 the O.Ps. did not heed to the request made and the complaint got issued the legal notice on 21/4/2014 and same are served on 25/4/2014 and even after receipt of the notice till today the O.Ps. have not replace the vehicle with new one nor paid Rs.60,000/- to the complainant. Hence there is deficiency of service on the part of the O.P., as the O.Ps. have sold defective vehicle to the complainant.

8) The O.Ps. filed objection stating that that the complaint is not maintainable and complainant has no locustandi to file the complaint. The O.Ps. further contended that it is true the complainant has purchased Mahindra Rodeo two wheeler from O.P.1 on 24/10/2012 and denied that the complainant has obtained loan to purchase the said vehicle. The O.Ps. denied that the vehicle fuel consumption average now is 30 Kmpl and same is false and baseless to allege average has been reduced. The O.Ps. further contended that on 3/12/2013 complainant brought the vehicle to O.P.1 and O.Ps. have promised to replace the said vehicle are have been denied. The O.Ps. further contended that the complainant has not got serviced his vehicle time to time and never complained as alleged in the complaint and only with the intention to get new vehicle the complainant has falsely filed this complainant hence liable to be dismissed and there is no deficiency of service on the part of the O.Ps.

9) The complainant has produced the documents and one of the document is the owners manual wherein we can notice that from 21/11/2012 till 2/4/2014 the complainant has regularly taken the vehicle for service and the service record chart contents seal of the servicing dealer and also it bears signatures of serviced person. The O.P. in the objection at para No.6 contended that the complainant has not serviced the vehicle from time to time and has not maintained said vehicle properly and the vehicle is used for more than 1 and half year and this extends the liability of these O.Ps. and during this period the complainant has not complained in regards to the reason as alleged. It is pertinent to note according to the service chart the complainant has serviced his vehicle on regular km readings as per the range mentioned in the service record chart but the O.Ps. without noticing the document produced have merely denied that the complainant is not serviced vehicle from time to time. The complainant except the owner manual the complainant has not produced any document to show that the vehicle is giving him less kilometers as alleged by the O.P. that vehicle average is 60 Kmpl. No doubt that the O.Ps. have not answered to the legal notice issued by the complainant but to prove that the vehicle is defective and giving less average the complainant has not produced any experts opinion nor produced a job sheet to show that the complainant has complained in this regard that the vehicle is giving less average than advertised. The another point to be noted hereby the prayer of the complainant is to replace the vehicle with new one or to award Rs.60,000/- the cost of the vehicle. The complainant has not produced the document to show that the vehicle cost him Rs.60,000/- and we find no reasons to order for replacement of the vehicle as the complainant has utterly failed to prove the defect in the vehicle and also to award the cost of the vehicle. Hence, there is no prima facie case and the complainant has to prove by cogent, credible and adequate evidence in support of his claim and the complainant has fail to establish that the vehicle suffers from inherent manufacturing defects. The complainant’s prayer itself goes to show that the complainant wants only new vehicle and nothing than that and also that the O.Ps. contention stands true, that the complainant only with the intention to get new vehicle have falsely alleged that the vehicle is defective in average.

10) The O.Ps. have relied on the number of decisions wherein one of the decision reported in 2010 (2) CPR 418 (NC) wherein Hon’ble National Commission the decision under the title “Important Point’’- Untill and unless, the manufacturing defect is pointed out and proved, the manufacturer cannot be asked to replace the vehicle.

11) In the present case on hand, the complainant has not proved the manufacturing defects in regards to the less average as alleged. Hence considering the decision mentioned supra and the facts alleged the complainant has fail to prove deficiency service on the part of the O.Ps.

          12) Accordingly, following order:

ORDER

          The complaint is dismissed. No order as to costs.

           (Order dictated, corrected and then pronounced in the open Forum on: 15^th June 2015)

          Member                    Member                    President.

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