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Amit Kumar v/s Shivansh Auto India Pvt. Ltd & Another

    First Appeal No. 271 of 2018

    Decided On, 19 April 2021

    At, Himachal Pradesh State Consumer Disputes Redressal Commission Shimla

    By, THE HONOURABLE MS. SUNITA SHARMA
    By, PRESIDING MEMBER & THE HONOURABLE MR. R.K. VERMA
    By, MEMBER

    For the Petitioner: Hoshiar Kaushal, Advocate. For the Respondents: R1, Shashi Bhushan, R2, Digvijay Singh, Advocates.



Judgment Text

Ms. Sunita Sharma, Presiding Member

1. Present appeal is filed against order dated 6.9.2018 passed by learned District Consumer Commission, Mandi in consumer complaint No. 57/2017 titled Amit Kumar v. Shivansh Auto India Pvt. Ltd. & Anr.

Brief facts of consumer complaint:

2. Complainant filed consumer complaint under Consumer Protection Act pleaded therein that he purchased a Nissan Micra car manufactured by the opposite party No. 2 from the opposite party No. 1, an authorized dealer of the opposite party No. 2 on 9.6.2014 for a sum of Rs. 5,76,000. Warranty of two years was extended. It was assigned registration No. HP-31B-1879. It is pleaded that soon after purchase, the car developed problems. Its exhaust pipe started emitting black smoke, which was unusual. This fact was brought to the notice of the opposite party No. 1, who assured to rectify the problems. In the month of April, 2016, he was going to Chandigarh and when he reached near Kiratpur Sahib, the car suddenly started making irritating noise.

3. It is averred that being worried about the safety of vehicle, he switched off the engine and contacted the opposite party No. 1. After hearing him about the problem in detail, an employee of the opposite party No. 1 advised to open the bonnet of car and inspect the functioning of engine closely. He acted as per advise and found that fan belt of the car has been partially broken. This fact was intimated to the opposite party No. 1. He was advised to cut hanging piece of fan belt, then start the engine and drive the vehicle as usual without any fear. After returning to his village, he took the car to the opposite party No. 1. Car was inspected by the opposite party No. 1 and he was asked to come after a few days since the fan belt was out of stock. He was asked to drive the vehicle in a normal way without any fear but irritating sound persisted. He requested the opposite party No. 1 to recheck the car and service the same. The vehicle was serviced by the opposite party No. 1 on the same day, i.e. 27.4.2016. Noise continued and became louder than before. As advised by the opposite party No. 1, he waited for arrival of fan belt in its stock. On 18.5.2016, he was informed by the opposite party No. 1 that the fan belt has arrived. He should immediately bring the car and get it replaced. Fan belt was got changed. Bill dated 18.5.2016 worth Rs. 1,368 was issued by the opposite party No. 1. Even after replacement of fan belt, the sound did not stop. He contacted the opposite party No. 1, who remarked that irritating noise will definitely come to an end after the vehicle is run for some kilometers, but sound persisted. It became louder and more irritating.

4. It is further averred that complainant took the car on 4.6.2016 to opposite party No. 1 for further check-up. He was asked to leave the vehicle in the workshop for check-up and rectification of defects. Car was dismantled and repaired by the opposite party No. 1. It was delivered to him after 21 days. Pre-invoice dated 25.6.2016 amounting to Rs. 45,303 was issued by the opposite party No. 1. Since vehicle was repaired during warranty period, he requested the opposite party No. 1 to bring sequence of events and manufacturing defect in the car to the knowledge of the opposite party No. 2. Opposite party No. 1 then tried to placate him by issuing revised bill of Rs. 28,513 in place of earlier bill/pre-invoice dated 25.6.2016 worth Rs. 45,303. An assurance was given that the matter will be brought to the notice of the manufacturer (OP No. 2) and he will get adequate relief. He was made to pay the revised bill amount of Rs. 28,513, though the vehicle was under warranty. The car ran smoothly for some time. In February 2017, he noticed leakage of engine oil. Opposite party No. 1 was contacted. Car was repaired against payment of Rs. 31,544 vide bill dated 22.2.2017. Since the day of purchase, the vehicle is creating various problems. It suffers from inherent manufacturing defect. He was forced to spend huge amount on getting the vehicle repaired from time to time during warranty period. It is further pleaded that opposite parties indulged in unfair trade practice and are deficient in rendering the service. Prayer for acceptance of consumer complaint sought.

5. None appeared on behalf of opposite party No. 1 despite service before District Commission. Hence, opposite party No. 1 was proceeded against ex parte.

6. Per contra version filed on behalf of opposite party No. 2. Preliminary objections have been taken to the effect that the complaint is false and frivolous. The complainant has not come to the Forum with clean hands. False allegations have been levelled to harass it by concocting the stories. In April 2016, the complainant called the opposite party No. 1 from a place near Kiratpur Sahib. He complained about loud noise. He was advised to open the bonnet and examine the vehicle. As per description given by the complainant, the opposite party No. 1 told him that the fan belt had burst. He (complainant) was advised to call road side assistance (RSA) of the company (OP No. 2) and get the vehicle towed to the nearest authorized service station at Chandigarh for replacement of fan belt since the same was not available with the opposite party No. 1. The complainant was categorically informed not to drive the car any further. He ignored the advice and drove the vehicle back to Mandi. Car was brought to the service centre of the opposite party No. 1. The complainant drove the vehicle with damaged fan belt for almost hundred kilometers on hilly roads which caused further damage to the car.

7. It is averred that material facts have been concealed with a dishonest intention to mislead the Forum. Reason for emission of smoke was use of adulterated and impure fuel. At the time of service, filter of car was changed by the opposite party No. 1 and fuel test was carried out. It was discovered that the fuel was adulterated having lot of impurities. This fact was brought to the knowledge of the complainant. Mention qua use of adulterated fuel and consequent damage caused to the vehicle has been made in the repair order dated 4.6.2016 issued by the opposite party No. 1. The complainant breached the terms and conditions of warranty. He cannot avail its benefit. The car is not having any manufacturing defect. No expert opinion in this regard has been produced. The complainant himself used the vehicle rashly and negligently. At the time of second free service on 4.7.2015, tyres of the car had worn off. The complainant was advised to get the wheel alignment and balancing done. He refused the same as is evident from the repair order issued on that day, i.e. 4.7.2015. Vehicle has been extensively used by the complainant. He has no cause of action. The complaint is time barred.

8. On merits, it stands admitted that a Nissan Micra car was bought by the complainant. However, it has been denied that the car suffers from any defect. The complainant was advised to ensure usage of better quality fuel. Baseless allegations have been levelled by him. He drove the vehicle with damaged fan belt against advise. Now, he is trying to shift the burden with an ulterior motive. Terms and conditions of warranty were violated. For the said reason, the complainant was not entitled to free repair. He was charged for consumables etc. Neither the complainant has been harassed nor suffered any loss. There is no deficiency in service or unfair trade practice. Prayer for dismissal of consumer complaint sought.

9. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. It has been denied that he plied the vehicle against mechanical advise. It is pleaded that no terms and conditions of warranty were breached.

10. The parties have led evidence along with documents in support of their respective claims. Learned District Consumer Commission dismissed the complaint filed by the complainant.

11. Feeling aggrieved against order passed by learned District Commission, complainant filed present appeal before State Commission.

12. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.

13. Following points arise f000or determination in present appeal.

1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.

2. Final order.

Findings upon point No. 1 with reasons:

14. Learned Counsel for appellant has argued that learned Commission below has failed to appreciate ample evidence on record to prove the manufacturing defect and deficiency in service by respondents. It has been further argued that there was report of expert, which is Annexure-C9 with the complaint and learned Commission below has not relied upon the affidavit and report of Er. L.R. Sharma, qualified engineering Graduate having vast experience. Learned Counsel for appellant further argued that Er. L.R. Sharma has been appointed as Local Commissioner by various learned Commissions to file the report regarding manufacturing defect, which is clear from documents filed along with complaint.

15. Learned Counsel for appellant has further argued that opposite party No. 1 did not appear before learned Commission below despite service, for which adverse inference has to be drawn against the opposite party No. 1. It has been further argued that learned Commission below has wrongly drawn conclusion that appellant has contravened terms & conditions of warranty and this assumption of the Commission below is without any evidence and prove on record. Learned Counsel further argued that objections to the report of expert Er. L.R. Sharma not filed properly and these objections were not signed by authorised signatory/representative of the opposite party and also was not supported by any affidavit and therefore, no reliance can be drawn on the objections filed by opposite party.

16. Learned Counsel for the respondent No. 1 has argued that complaint has been rightly dismissed by learned Commission below and complaint is completely false and frivolous. Learned Counsel further argued that complainant has concealed material information with the Commission with dishonest intention of misleading. Complainant has repeatedly alleged that vehicle started emitting black smoke from exhaust pipe soon after its purchase and engine was producing noise. He has submitted that upon complaints of complainant regarding emission of black smoke and change of filter of the car on serving, the opposite party No. 1 did a fuel test on the fuel in the complainant’s car and it was discovered that fuel had lot of impurities and was also adulterated and complainant was duly informed about the same. He further argued that complainant has used adulterated fuel and consequently damage was caused to the vehicle in question.

17. It is further argued by learned Counsel for respondent No. 1 that when fan belt of complainant’s vehicle burst, he was categorically advised not to drive the vehicle any further and tow the vehicle to nearest authorised service centre and get the fan belt replaced but complainant completely ignored the advise rendered to him and instead drove the vehicle with damaged fan belt for over 100 Kms in a hilly region by cutting off the hanging part of the fan belt, which caused damage to the vehicle and also this act of the complainant is in total breach of warranty condition. Therefore, opposite party is not liable for replacement of the vehicle.

18. Learned Counsel for the respondent No. 1 has also argued that expert Er. L.R. Sharma does not possess any technical qualification, education and expertise in the field of Automobile Engineering, therefore, his report cannot be taken into consideration. To this objection has been filed by opposite party No. 2 but no affidavit has been annexed with the objection filed by opposite party No. 2. Hence objection to the expert report cannot be sustained. It is admitted case of the complainant that after immediate purchase of the car, vehicle started giving problem, for which he took the car to the respondent No. 1 and it was duly repaired by the respondent No. 1. It is admitted case of the parties that first complaint was made to the opposite party No. 1 in the month of April 2016, when he was going to Chandigarh and when he reached near Kiratpur, the car suddenly started making noise. Being worried about the safety of vehicle, complainant switched off the engine and contacted the opposite party No. 1.

19. It is not in dispute that vehicle was purchased by complainant on 9.6.2014 from authorised dealer of opposite party No. 2. It is also not in dispute that opposite party No. 1 has repaired the vehicle on 27.4.2016 and noise continued and become louder than before. The fan belt of the vehicle got repaired/changed on 18.5.2016 for worth Rs. 1,368 and bill to this effect also issued by opposite party No. 1 to complainant. On 4.6.2016, the complainant took the car to opposite party No. 1 for further checkup and he was asked to leave the car in the workshop for checkup and rectification of the defect and consequently car was dismantled and repaired by opposite party No. 1 and it was delivered to him after 21 days and pre-invoice dated 25.6.2016 amounting to Rs. 45,303 was issued by opposite party No. 1, but later on revised bill of Rs. 28,513 was issued to complainant in place of earlier bill invoice dated 25.6.2016 for worth Rs. 45,303.

20. In the month of February, 2017, again complainant noticed leakage of engine oil and he contacted opposite party No. 1 and car was again repaired against payment of Rs. 31,544. It is not disputed by the parties that complaint has been made to opposite party No. 1 when complainant covered mileage of more than 27,970 Kms, which itself a testimony that car has no manufacturing defect. If there is any defect leading to any problem or some noise in the vehicle, then that would have been manifest at earlier stage. The problem reported by the appellant was nothing but on account of normal wear and tear and on account of impure fuel used in the car.

21. At the very outset, it may be stated that to establish the claim of total replacement by a new vehicle, complainant has to prove by adequate and admissible evidence supported by opinion of expert of mechanical engineer that vehicle suffered from inherent manufacturing defect. In the present case, through affidavit of the expert has been filed along with the reply to the objection filed by the opposite party, but the report if seen cannot be taken into consideration because expert has written that details of repairs of certain major parts in the initial life of vehicle and repairs to injectors and many other such parts indicate that the vehicle was not in a perfect functioning state from the very start. But it is very clear from inspection report given by expert/engineer Er. L.R. Sharma dated 15.11.2017 that repairs of certain major parts were done, when vehicle was run upto 27970 Kms. It is clear from the report that Er. L.R. Sharma has inspected vehicle after purchase of about 3 years of vehicle. Moreover, it is clear from his report that he has not dismantled the car for analyzing the manufacturing defect. Therefore, his report cannot be relied upon fully.

22. To prove such manufacturing defect, opinion of expert in detail is necessary, which is not forthcoming in the present case. Hon’ble Apex Court of India, Hon’ble National Consumer Commission and State Commission, Shimla in number of cases have held that unless the onus is satisfactorily discharged by the complainant, the liability of manufacturer would be limited to removal of the defect or replacement of defective parts of the vehicle. In the present case, it cannot be said that complainant has been able to satisfactorily prove his case of car suffering from manufacturing defect. Merely that car has been taken to the workshop of dealer several times and because number of complaints had been addressed to respondents No. 1 & 2, it will not by itself amount to manufacturing defect. The car was sold to complainant on 9.6.2014 and first time report was lodged to opposite party No. 1 in the month of April, 2016. By that time, vehicle had already gone an aggregate mileage of more than 27,970 Kms. This shows that vehicle was in running condition and used by complainant on regular basis.

23. It also shows that there was no manufacturing defect in the car in question. Had there been a manufacturing defect, the car could not have run for nearly 2 years and 10 months. This fact itself is a testimony that car has no manufacturing defects. Defects in the car, as rightly contended by opposite party were minor in nature and cannot be said to be in the nature of manufacturing defect. By own admission of complainant, the starting problem of car was noticed in April 2016 and when car was taken to the respondent No. 1, it was repaired, but subject to issue of bill of Rs. 1,368. Again car was taken to dealer for repair and a sum of Rs. 28,513 and further vehicle was repaired for a sum of Rs. 31,544. According to complainant when car again started giving problem, it was duly repaired by opposite party No. 1 and also handed over to complainant. It is nowhere stated by complainant that car is not in running condition. After having considered contention of parties, we are of the considered view that car in question was not suffering from any manufacturing defect and therefore, complainant is not entitled to receive price of car

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or replacement of the car. As car was repaired within warranty period, the complainant is entitled for repair charges amounting to Rs. 1,368, Rs. 28,513 and Rs. 31,544. 24. However, we are of the considered view that complainant has suffered lot of inconvenience and misery due to improper functioning of the vehicle. As no purchaser of new vehicle would ever think that he would be going to garage to get the vehicle repaired so often, even if repair may be minor. If this has happen, the purchaser is definitely liable to receive some compensation for mental agony faced by him due to supply of vehicle having some defects. Accordingly, we deed it fit and appropriate that complainant must get some compensation. In holding this view, we are relying upon recent judgment of Hon’ble National Consumer Commission in R.P. 2354/2011 titled Tata Motors v. Ran Singh, wherein order of lower Fora for replacement of vehicle or praying of value of vehicle has been set aside and order of granting two lakh compensation was upheld. In view of above stated facts point No. 1 is decided accordingly. Point No. 2: Final Order 25. In view of findings upon point No. 1 above, appeal is partly allowed. Opposite parties jointly & severally are directed to pay repair charges amounting to Rs. 1,368, Rs. 28,513 and Rs. 31,544 with interest @ 9% per annum from the date of filing of complaint till realization of payment. In addition opposite parties jointly & severally shall pay compensation to complainant to the tune of Rs. 50,000 and Rs. 5,000 on account of litigation costs. 26. Certified copy of order be sent to learned District Commission forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of. Appeal partly allowed.
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