State Consumer Disputes Redressal Commission
M/S Goyal Motors P. Ltd. & Anr. vs Sh. Bhagat Ram. & Anr. on 1 October, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 104/2018
Date of Presentation: 12.03.2018
Order Reserved on : 03.05.2019
Date of Order : 01.10.2019
......
1. Goyal Motors Pvt. Ltd. Tara Devi Shimla-171010 through its
M.D.
2. Goyal Motors Pvt. Ltd. Opposite Hindostan Petroleum
Depot Pinjore-Nalagarh Road Dadi Kaniya Tehsil Nalagarh
District Shimla (H.P) through its Managing/Service Engineer.
...... Appellants/Opposite Parties No.1 & 2
Versus
1. Bhagat Ram son of Shri Nanak Chand R/o Village Makhnu
Majra P.O. Bhud Tehsil Baddi District Solan (H.P).
......Respondent No.1/Complainant
2. Maruti Suzuki (India) Ltd. Plot No.1 Nelsan Mandela Road
Vasant Kunj New Delhi-70 through its M.D.
......Respondent No.2/opposite party No.3
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellan ts : Mr. Shashi Bhushan Advocate.
For RespondentNo.1 : Mr. Shriyek Sharda Advocate.
For Respondent No.2 : Ex-parte.
1
Whether reporters of the local papers may be allowed to see the order? Yes.
M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr.
F.A. No.104/2018
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 24.01.2018 passed by Learned District Consumer Forum/ Commission in consumer complaint No.87/2017 titled Bhagat Ram Versus M/s Goyal Motors Pvt. Ltd. & Ors. Brief facts of consumer complaint:
2. Shri Bhagat Ram complainant filed consumer complaint under Consumer Protection Act pleaded therein that complainant purchased vehicle No.HP-12H-2639 from opposite party No.2 on dated 17.04.2016. It is pleaded that on dated 06.06.2017 vehicle in question developed defect at Baddi Tehsil Baddi District Solan (H.P). It is pleaded that engine of vehicle in question stopped working. It is pleaded that opposite party No.2 was contacted but officials of opposite party No.2 did visit spot to check vehicle in question.
It is pleaded that thereafter recovery van was hired for transportation of vehicle in question and vehicle was brought in service station of opposite party No.2. It is further pleaded that Service Manager and Mechanic examined vehicle in question and told complainant that engine of vehicle in question was damaged. It is pleaded that opposite party assigned reasons as hydrostatic lock. It is pleaded that opposite party demanded an amount of Rs.35000/-(Thirty five 2 M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr. F.A. No.104/2018 thousand) as repair charges. It is pleaded that thereafter letter was issued by opposite party No.2 on dated 13.07.2017 that opposite party No.2 would bear expenditure of repair to the extent of 50% only. It is further pleaded that there was inherent manufacturing defect in engine of vehicle in question. It is pleaded that complainant visited several times in office of opposite parties to replace defective engine in question but opposite parties refused to do so. It is pleaded that defect occurred in vehicle in question within warranty period. It is further pleaded that opposite parties committed deficiency in service and also indulged in unfair trade practice.
3. Complainant sought relief against opposite party No.2 to replace engine of vehicle in question with new one or to deliver a new car. In alternative complainant sought relief of payment of Rs.549255.20/-(Five lac forty nine thousand two hundred fifty five rupees & twenty paise) alongwith interest @ 12% per annum. In addition complainant sought relief of payment of Rs.50000/-(Fifty thousand) as damages. In addition complainant sought relief of transportation charges to the tune of Rs.1500/-(One thousand five hundred). In addition complainant sought relief of litigation costs. Prayer for acceptance of consumer complaint sought. 3
M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr. F.A. No.104/2018
4. Per contra version filed on behalf of opposite parties No.1 & 2 pleaded therein that two years warranty was given to complainant. It is pleaded that defect occurred in vehicle does not cover under warranty condition. It is pleaded that there was no manufacturing defect in vehicle in question. It is further pleaded that defect occurred in vehicle due to own negligent driving of complainant. It is pleaded that connecting rod was bent and was broken which caused consequential damage to engine. It is pleaded that hydrostatic lock was situated and engine sucked water while crossing from air cleaner and water entered into cylinder bore of engine which in turn causes buckling of connecting rod and damaged other components of engine like bore, engine, crank shaft etc.
5. It is further pleaded that cause of problem was attributed to external reasons i.e. Entry of water in engine and repairs were to be carried out on paid basis. It is pleaded that defect falls within exclusion clause of warranty card. It is pleaded that complainant was informed that damage to engine was due to hydrostatic lock. It is pleaded that Opposite parties No.1 & 2 were ready to repair vehicle in question on the basis of 50% share costs by complainant and opposite parties. It is denied that there was manufacturing defect in vehicle in question. It is pleaded that opposite 4 M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr. F.A. No.104/2018 parties No.1 & 2 did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
6. Per contra separate version filed on behalf of opposite party No.3 pleaded therein that vehicle in question was damaged due to water entry in engine causing hydrostatic lock. It is pleaded that defect falls within exclusion clause of warranty card. It is further pleaded that opposite parties are under legal obligation to repair vehicle in question as per warranty condition. It is further pleaded that warranty was issued for two years or 40000 KMs from date of sale. It is pleaded that there was no manufacturing defect in vehicle in question. It is further pleaded that complainant was informed that although repairs were not covered under warranty condition but still as a goodwill gesture company agreed to bear 50% costs. It is pleaded that defect occurred in vehicle in question due to own negligence of complainant. Prayer for dismissal of consumer complaint sought.
7. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned District Consumer Forum/Commission ordered opposite parties jointly and severally to repair engine of vehicle in question by replacing defective parts of engine free of costs within thirty days from date of receipt of copy of order. Learned District Consumer Forum/Commission further 5 M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr. F.A. No.104/2018 ordered opposite parties to pay compensation to complainant to the tune of Rs.10000/-(Ten thousand) for mental harassment. In addition Learned District Consumer Forum/Commission ordered opposite parties to pay litigation costs to complainant to the tune of Rs.3000/-(Three thousand). Feeling aggrieved against order passed by Learned District Consumer Forum/Commission opposite parties No.1&2 filed present appeal before State Commission.
8. We have heard learned Advocates appearing on behalf of appellants and co-respondent No.1 and we have also perused entire record carefully. Co-respondent No.2 was proceeded against ex-parte by State Commission.
9. Following points arise for determination in present appeal.
1. Whether appeal filed by appellants is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
10. Complainant filed affidavit Ext.CW-1 in evidence.
There is recital in affidavit that deponent purchased vehicle in question from opposite party No.2 on dated 17.04.2016. There is recital in affidavit that on dated 06.06.2017 defect occurred in vehicle and engine of vehicle in question stopped 6 M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr. F.A. No.104/2018 working. There is further recital in affidavit that vehicle was brought in service station of opposite party No.2 and opposite party No.2 told that defect in engine was due to hydrostatic lock which falls within exclusion clause of warranty. There is recital in affidavit that thereafter on 13.07.2017 opposite party No.2 issued letter to complainant and agreed to bear 50% repair charges. There is recital in affidavit that legal notice was also issued to opposite party but opposite party did not repair vehicle in question during warranty period.
11. In addition complainant also filed affidavit of Shri Neeraj Kumar Ext. CW-2 in evidence. There is recital in affidavit that deponent is son of complainant and deponent was having valid and effective driving licence. There is recital in affidavit that on dated 06.06.2017 deponent was driving vehicle in question and engine stopped working. There is further recital in affidavit that there was manufacturing defect in vehicle. State Commission has carefully perused all annexures filed by complainant.
12. Opposite parties No.1 & 2 filed affidavit of Shri Sahaj Shabad Managing Director of Goyal Motors in evidence. There is recital in affidavit that engine stopped working due to hydrostatic lock. There is recital in affidavit that damage caused to engine due to negligence of complainant himself. There is recital in affidavit that defect relating to hydrostatic 7 M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr. F.A. No.104/2018 lock falls within exclusion clause of warranty card. There is recital in affidavit that as a goodwill gesture opposite parties No.1 & 2 offered to bear repair charges to the extent of 50%. There is recital in affidavit that opposite parties No.1 & 2 did not commit any deficiency in service.
13. Opposite party No.3 filed affidavit of Shri Pankaj Bawa Ext.OPW3-I in evidence. There is recital in affidavit that relationship between opposite parties No.1&2 and opposite party No.3 was on the concept of principal to principal basis. There is recital in affidavit that there was no manufacturing defect in vehicle in question. There is further recital in affidavit that defect occurred in engine due to hydrostatic lock which falls within exclusion clause of warranty card. There is recital in affidavit that opposite party No.3 did not commit any deficiency in service. State Commission has carefully perused all annexures filed by opposite party No.3.
14. Submission of learned Advocate appearing on behalf of appellants that order of Learned District Consumer Forum/Commission directing appellants to repair engine of vehicle in question by way of replacing defective parts of engine of vehicle within thirty days from the date of receipt of copy of order is contrary to laws and is contrary to proved facts is decided accordingly. It is proved on record that 8 M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr. F.A. No.104/2018 complainant purchased vehicle from Goyal Motors after paying consideration amount to the tune of Rs.549255.20/- (Five lac forty nine thousand two hundred fifty five rupees & twenty paise) on dated 17.04.2016. It is also proved on record that defect occurred in vehicle during warranty period because warranty of two years was given to complainant relating to vehicle in question. It is also proved on record that on dated 06.06.2017 defect occurred in engine of vehicle at Baddi within two years from sale. Appellants did not file affidavit of mechanic or service engineer on record in order to prove that defect occurred in vehicle in question due to hydrostatic lock. No reasons assigned by appellants as to why appellants did not file affidavits of mechanic and service engineer in order to prove that defect occurred due to hydrostatic lock. Adverse inference is drawn against appellants for non filing of affidavits of mechanic and service engineer. Sole affidavit of Shri Sahaj Shabad Managing Director is not sufficient because Shri Sahaj Shabad is not mechanic or service engineer of Maruti Suzuki Company.
15. Submission of learned Advocate appearing on behalf of appellants that complainant has himself pleaded in complaint that there was manufacturing defect in vehicle in question and dealer is not under legal obligation to repair defective parts of vehicle in question free of charges is decided 9 M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr. F.A. No.104/2018 accordingly. It is true that complainant has pleaded in consumer complaint that there was manufacturing defect in vehicle but complainant did not file any affidavit of mechanic in order to prove that there was manufacturing defect in vehicle in question. It is well settled law that plea of manufacturing defect should be proved by way of evidence of expert only. Sole testimony of complainant that there was manufacturing defect in vehicle in question is not sufficient unless corroborated by report of expert mechanic. See 2010(5) Supreme Court Cases 513 titled V. Kishan Rao Versus Nikhil Super Speciality Hospital & Anr. See 2018(2) CPR 675 NC titled Himanshu Maheshwari Versus Director Grand Nissan & Anr. See 2018(1) CPJ 425 NC titled Pawan Kumar Versus Nissan Motors India Pvt. Ltd. and Ors. See 2018(1) CPR 307 NC titled Kanchanamani Devi through L.Rs Versus General Manager M/s. Tata Motors Ltd. & Ors. See 2017(3) CPR 35 NC Mahender Kumar Versus Hero Honda Motors Ltd. & Anr. See 2017(1) CPR 643 NC Bhagwan Singh Shekhawat Versus M/s. R.K. Photostate & Communication & Ors. See 2017(3) CPR 259 NC Ajay Kumar Versus M/s. Anand Auto Mobile and Anr.
16. Even there is no evidence on record in order to prove that exclusion clause of warranty card was explained to complainant. It is well settled law that when exclusion clause 10 M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr. F.A. No.104/2018 of warranty was not explained to complainant then opposite party could not be allowed to take benefit of exclusion clause. See 2000(2) Supreme Court Cases 734 Modern Insulators Ltd. Versus Oriental Insurance Company Ltd. See 2007(III) CPJ 34 NC National Insurance Company Ltd. Versus D.P. Jain. 2019(2) SC 820 Himachal Law Reporter titled Bharat Watch Versus National Insurance Co. Ltd.
17. Submission of learned Advocate appearing on behalf of appellants that defect in vehicle in question was due to external impact and on this ground appeal filed by appellants be allowed is decided accordingly. State Commission is of the opinion that external impact should be proved by way of affidavits of expert mechanic. Appellants did not file affidavit of expert mechanic on record in order to prove that defect in vehicle caused due to external impact. Hence adverse inference is drawn against appellants for non filing affidavits of expert mechanic in order to prove external impact. Plea of appellant that defect occurred due to external impact is defeated on the concept of ipse dixit (An assertion made without proof).
18. Submission of learned Advocate appearing on behalf of appellants that Learned District Consumer Forum/ Commission has granted excessive compensation for mental harassment to the tune of Rs.10000/-(Ten thousand) and on 11 M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr. F.A. No.104/2018 this ground appeal filed by appellants be allowed is decided accordingly. It is proved on record that defect occurred in vehicle in question during warranty period. It is also proved on record that appellants offered payment of 50% charges to complainant. It is proved on record that complainant sustained mental agony. Consumer Protection Act is consumer oriented Act and enacted by Parliament of India in order to protect interest of consumer. Offer of appellants for payment of 50% charges proves that liability is admitted by opposite parties. In view of factum of admission of liability of 50% by opposite party vide annexure-A2 State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to interfere in order of Learned District Consumer Forum/Commission relating to compensation amount for mental harassment.
19. Submission of learned Advocate appearing on behalf of appellants that Learned District Consumer Forum/ Commission has granted excessive litigation costs to complainant to the tune of Rs.3000/-(Three thousand) and on this ground appeal filed by appellants be allowed is decided accordingly. State Commission is of the opinion that complainant has engaged Advocate and has also paid litigation costs & other expenses and Learned District 12 M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr. F.A. No.104/2018 Consumer Forum/Commission has granted reasonable litigation costs to complainant.
20. Submission of learned Advocate appearing on behalf of complainant that order of Learned District Consumer Forum/Commission is in accordance with laws and in accordance with proved facts and does not warrant any interference by State Commission is decided accordingly. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to interfere in order of Learned District Consumer Forum/ Commission and it is held that order of Learned District Consumer Forum/Commission is strictly in accordance with laws and in accordance with proved facts. Point No.1 is decided accordingly.
Point No.2: Final Order
21. In view of findings upon point No.1 above appeal is dismissed. Order of Learned District Consumer Forum/ Commission is affirmed. Letter dated 13.07.2017 issued by appellants to complainant Annexure-A2 for payment of 50% charges on behalf of appellants qua repair charges of vehicle in question shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission.
22. File of learned District Consumer Forum/ Commission alongwith certified copy of order be sent back 13 M/s Goyal Motors Pvt. Ltd. & Anr. Versus Bhagat Ram & Anr. F.A. No.104/2018 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.
Justice P.S. Rana (R) President Sunita Sharma Member 01.10.2019 K.D 14