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Dr. Pratip Banerjee v/s Mohan Motor Business Pvt. Ltd. Represented by its Managing Director & Another

    Complaint Case No. CC/183/2013

    Decided On, 14 March 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. DIPA SEN (MAITY)
    By, MEMBER

    For the Complainant: Prabir Basu, Tarun Chakraborty, Binota Roy, Advocates. For the Opp. Party: Dipalok Majumder, Sarbari Dutta, Advocates.



Judgment Text

Samaresh Prasad Chowdhury, Presiding Member

The instant Complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of owner of a car against an Authorised Dealer (Opposite Party No.1) and an Manufacturer (opposite party No.2) on the allegation of deficiency in services on the part of them for not providing the vehicle in befitting condition with a prayer for compensation of Rs.8,00,000/- and litigation cost of Rs.25,000/-.

Succinctly put, Complainant’s case is that on 27.03.2012 he purchased a new XUV 500 Car manufactured by opposite party No.2 from opposite party No.1 at a price of Rs.12,65,989/-. Within a few days of purchase i.e. 08.04.2012 the car and its right front of wheel partly fell off. The complainant immediately approach the opposite party No.1 to set the said car right but one pretext or another, the opposite party No.1 delayed the matter causing serious harassment and inconvenience of the complainant. The opposite party No.1 did not care to employ any Automobile Engineer to inspect the care and set the same right. Under compelling circumstances, complainant had approached to one Sri Amitava Chakraborty, a reputed Automobile Engineer cum Surveyor, who opined inherent manufacturing defect and suggested to send the broken parts to some recognized Metallurgical Laboratory for test. On the basis of the said suggestion, the complainant got the parts tested at the National Test House. On 23.08.2012 the Test Certificate provided by the said National Test House confirmed the opinion of the said Automobile Engineer cum Surveyor. On receipt of the said report, the complainant wrote to opposite party No.2 on 23.11.2012 with a request to take back the vehicle and refund the entire amount but OPs did not any heed to the same. Hence the complaint approached this Commission with prayer for following reliefs, viz.- (a) to change the said defective car with a defect free new car of same model, (b) compensation of Rs.8,00,000/- for harassment and mental agony and (c) litigation cost of Rs.25,000/-.

The opposite party No.1 by filing a written version has stated that on 08.04.2012 on receipt of a telephonic intimation from the complainant to collect the subject vehicle from the place of accident by towing for necessary repair, the mechanics of them had visited the spot of the accident and it was found that the spot of accident has conspicuous sharp iron bar with which the subject vehicle had collided and as a result of which the right front wheel of the vehicle got severely damaged and there was visible external impact on the respective alloy wheel and the tyre.

The opposite party No.2 by filing a separate written version has stated that there was no manufacturing defect as alleged by the complainant. The test result of the report of National Test House dated 23.08.2013 also reiterates the findings of opposite party No.2, who has very clearly opined upon conducting the standard test procedure and their Test Result Remarks had been intimated to the complainant vide the e-mail dated 27.12.2013. The opposite party No.2 has also stated that the test result from independent third-party laboratory reports and analysis conducted and their plan, it has been concluded that the components have been checked for chemistry, hardness, microstructure etc and all the parameters are well within specifications and conforms to the applicable standards for chemical analysis as well as metallurgical test. Therefore, the complaint should be dismissed.

The parties to the proceedings have filed evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. Besides the evidence laid by the parties, they have also filed brief notes of argument at the time of final hearing of the case.

The pleadings of the parties and the evidence on record make it manifestly clear that the complainant purchased one new XUV 500 Car manufactured by opposite party No.2 from opposite party No.1 on 27.03.2012 at a price of Rs.12,65,989/-, on 08.04.2012 the right front of wheel of the vehicle accidently partly fell off. At the relevant time, the complainant’s vehicle was carrying his children and the driver.

It is also not in dispute that immediately after the incident, the complainant requested the OP No.1 to set the said car right but OP No.1 did not take immediate attention. It also reveals that the complainant approached one Sri Amitava Chakraborty, Automobile Engineer cum Surveyor, who opined survey of the vehicle opined inherent manufacturing defect and suggested to send the broken parts to some recognized Metallurgical Laboratory for test. Evidently, the complainant said those vehicles for test at National Test House (Eastern Region) and on 23.08.2012 the performance of test was done. After examination the scientists of the said Test House has given a report. In the report it has been observed inter alia:

i. The broken parts were identified as Part-1 and Part-2 during the test,

ii. Tensile test could not be carried out on fractured Pat 1 due to insufficient portion. The probable reasons for failure are as follows:-

a. Variation in Chemical Composition,

b. Brittleness of the material caused by high carbon Equivalent values (CE),

c. Presence of Complex Carbides in the structure, supported by “very high hield stress and Tensile Strength”,

d. Improper workmanship,

e. Sudden high impact on the part leading to failure.

After receiving of such report the complainant wrote to OP No.1 with a request to take back the vehicle and to refund the entire amount paid by him or in the alternative to set the same right within seven days. Unfortunately, no step was taken by OPs to set the same right upon changing the broken part within seven days, as asked for by the complainant or to replace the defective vehicle with a new one within a reasonable time.

It may be pertinent to record here that by filing one application being MA/50/2014 the OP No.2 sought for a report from Automative Research Association of India, Pune. By filing another application being MA/49/2014 the OP No.2 has prayed for passing an order directing the National Test House to return or submit the test parts i.e. the parts of the vehicle of the complainant and to keep the same in safe-custody of this Commission in the interest of justice. By order dated 19.03.2014 both the applications were disposed of with an observation that OP NO.2 is at liberty to challenge the expert report submitted by complainant at the time of final hearing of the case. In this regard, it may be recorded that on the basis of an application filed by OP NO.2 for an order directing the authorities of the National Test House to qualify whether NTH at all has/had HABL or NPL approval at the relevant point of time, particularly, for chemical composition, hardness and microstructure and to rescind the report in absence of such approval in their favour and also the NTH be directed to submit the Test Sample i.e purported parts of the vehicle of the complainant and upon proper identification of the same to send the said sample to the appropriate laboratories i.e the Automotive Research Association of India, Pune. By order No.27 dated 04.05.2017 the said application was allowed with a direction upon the Director of National Test House to submit the test sample of their report being NTH (ER)/M(L)/2012/00167 dated 23.08.2013 to the Director, Automotive research Association of India, Pune and in this regard it was directed the OP No.2 shall bear the cost of such examination. However, the OP No.2 did not take any steps in this regard and considering the long pendency of the case on consent of the Ld. Advocate for the parties, the record was taken up for final hearing of the case.

The report of National Test House has been challenged because the Automative Research Association of India, Pune is only appropriate laboratory circulated by the Government of India Ministry of Food and Civil supplies Department of Civil supplies vide their circular dated 13.06.2018. Moreover, the experts of National Test House have given some probable cause of the alleged failure and the nature of test properly conducted by NHT is adequate to declare the chemical composition, hardness and microstructure and microstructure of metal is capable of declaring a conclusive observation.

Per contra, Mr. Prabir Basu, Ld. Advocate for the complainant drawing our attention to order dated 19.03.2014 in MA/49/2014 and in MA/50/2014 has submitted that the OPs did not take any steps to comply with order No.27 dated 04.05.2017 and further when it appears that the OP did not take any positive steps to comply with the said orders and participate in the final hearing, they cannot challenge the authenticity of the Test Certificate issued by National Test House. Ld. Advocate for the complainant has also contended that the National Test House has been authorised by Ministry of Consumer Affairs, Food and Public Distribution of Government of India and, therefore, there is hardly any reason not to rely upon the said report.

What we find from the record is that on behalf of OP No.1 their technical expert Sri Ashutosh Gondhalaykar has deposed who admitted in his cross-examination that he is working with Mahindra Vehicle Manufactures Ltd for about last six years and not working with the OP No.1. However, the said witness has admitted that Mahindra and Mahindra as well as Mahindra Vehicle Manufactures Ltd are of same business group. Moreover, the said witness has not deposed that he tested the broken parts of the car of the complainant. The other witness Mr. Kaushik Mukherjee is a Deputy General (Customer Care, East Division of OP No.1).

Considering the entire facts and circumstances and on perusal of the evidence on record and the submission advanced by the Ld. Advocate appearing for the parties it appears to us that the complainant being a ‘consumer’ approached the OPs on account of damage of their vehicle and to replace the same by a new one but the OPs did not offer the complainant to approach the Automative Research Association of India, Pune for Metallurgical report and on the contrary the OPs did not take any proper step to collect the parts of the vehicle of complainant from the National Test House and to send the said sample to the alleged appropriate laboratory and thereby the OPs were deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.

In view of the above, the complainant is entitled to some relief.

Considering the facts and circumstances of the case, it appears t

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o us that at this belated stage an order to change the said car with a defect free new car of same model is not possible. The only remedy lies on the payment of compensation for harassment and mental agony suffered by the complainant. Since the complainant has also contributed the negligence by not referring the broken parts i.e damage ball point from an authentic Metallurgical laboratory to find out the reason behind the failure (broken) of the ball point the complainant is entitled to compensation of 50% of the total and compensation i.e Rs.4,00,000/-. As the situation compelled the complainant to lodge the complaint, he is entitled to litigation cost which we quantify at Rs.10,000/-. With the above discussion, we discuss of the complaint with the following directions: 1. The OP Nos. 1&2 are jointly and severally directed to pay compensation of Rs.4,00,000/- to the complainant, 2. The OP Nos. 1&2 are jointly and severally directed to pay Rs.10,000/- to the complainant as costs of litigation and 3. The Above payments must be paid within 60 days from date, in default, the amount shall carry interest @8% p.a. from date till its realisation.
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