State Consumer Disputes Redressal Commission
Sh. Neel Kamal vs M/S Competent Automobiles Co. Ltd. on 11 June, 2024
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA.
First Appeal No.: 218/2023
Date of Presentation: 09.10.2023
Order reserved on: 29.05.2024
Date of Decision: 11.06.2024
.................................................................................
Shri Neel Kamal S/O Shri Dharam Chand, R/O VPO Mahadev,
Tehsil Sunder Nagar, District Mandi, HP.
.....Appellant/Complainant.
Versus
1. M/s Competent Automobiles Co. Ltd., NH-21, VPO Gutkar,
Tehsil Balh, District Mandi, HP through its
Manager/Authorized person.
2. Maruti Suzuki India Ltd. (Regd. Office), Plot No.1, Nelson
Mandela Road, Basant Kunj, Delhi-110070 through its
Managing Director/authorized person.
.....Respondents/Opposite parties.
.................................................................................
Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Mr. R.K. Verma, Member
Whether approved for reporting?1 Yes
For the Appellant: Mr.Shashi Bhushan, Advocate
vice Mr.Sunil Banyal, Advocate.
For the Respondent No.1: Mr.H.S.Rangra, Advocate.
For the Respondent No.2: Mr.Sahil Kumar, Advocate.
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1
Whether Reporters of the local papers may be allowed to see the order?
Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr.
F.A.No.218/2023
Justice Inder Singh Mehta, President
O R D E R:
Instant appeal is arising from the order dated 11.08.2023 passed by learned District Consumer Commission, Mandi, H.P. in Consumer Complaint No. 03/2018 title Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr.
Brief facts of Case:
2. Brief facts of the case are that the complainant purchased a Maruti Suzuki Swift Desire bearing registration No. HP-31B-3633 for a sum of ₹6,40,000/- on 06.01.2016 for his personal use. On 13.03.2016, when the complainant was coming in the vehicle from Sunder Nagar side and when reached near Village Balt, Tehsil Balh, District Mandi, engine of the car burst suddenly and complainant was unable to ply the vehicle. As per complainant, there was manufacturing 2 Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr. F.A.No.218/2023
defect in the vehicle. The complainant took the vehicle for mechanical examination to the opposite party No.1/dealer and he was assured that the engine would be replaced within 10-15 days as per warranty. After 15 days, the complainant went to the premises of opposite party No.1/dealer, but found that the engine was not replaced, but it was just repaired. On inquiry by the complainant for non-replacement of the engine, he was told that engine developed problem due to hydrostatic lock. Due to non-delivery of vehicle to complainant with new replaced engine, the complainant suffered loss in his business tour as he had to hire taxies and for the same, the complainant paid ₹48,500/-. The complainant served several notices to the opposite parties to replace the engine of the vehicle, but in vain. Hence, the present complaint.
3. The opposite party No.1/dealer contested the complaint by filing a reply and stated that vehicle was 3 Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr. F.A.No.218/2023 brought for repair in the workshop of opposite party No.1/dealer. On inspection, it was found that engine developed some problem due to hydrostatic lock resulting engine stopped working. The complainant was apprised that the said defect could be repaired as it did not fall within warranty. The complainant was asked to take away his vehicle otherwise he would be liable for parking charges. Since the defect in the vehicle of the complainant occurred due to his own negligence, therefore, the opposite party No.1/dealer is not liable to replace the engine. A prayer for dismissal of the complaint was made.
4. The opposite party No.2/manufacturer also contested the complaint by filing a separate reply and stated that the complainant is not a consumer as he was plying the car for business purpose. The defect in the engine of the vehicle of the complainant occurred due to 4 Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr. F.A.No.218/2023 hydrostatic lock, which was not covered under warranty. There was no occasion to replace the engine of the vehicle. Upon inspection of the engine of the vehicle, it was found that carbon lining on 4th cylinder was found to be 10.14 mm, whereas, in the rest cylinders carbon lining was 5.18 mm. This is a clear indicator of hydrostatic lock causing damage to the engine. Clause 4(5) of warranty excludes the repairs caused due to misuse and negligent driving by the complainant. A prayer for dismissal of the complaint was made.
5. The complainant filed rejoinder to the reply filed by the opposite party No.1/dealer, wherein he denied the objections taken by the opposite party No.1/dealer and reasserted the averments already made in the complaint.
6. After hearing learned counsel for the parties, learned District Commission dismissed the 5 Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr. F.A.No.218/2023 complaint of the complainant.
7. Feeling aggrieved by the order of learned District Commission, the appellant/complainant has preferred the instant appeal before this Commission.
8. We have heard learned counsel of the parties and have also gone through the record carefully.
9. Learned counsel of the appellant/complainant has submitted that on 06.01.2016 appellant has purchased the car from respondent No.1 which was found defective on 13.03.2016. He further submitted that the car was taken to respondent No.1/dealer and since then the car is lying with the respondent No.1/dealer. He further submitted that complainant/appellant filed the complaint before learned District Commission which was dismissed on the ground that vehicle was being used for commercial purposes. He further submitted that thereafter the complainant/appellant preferred the appeal 6 Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr. F.A.No.218/2023 and matter was remanded back to learned District Commission for adjudication on merits. He further submitted that now the complaint has been dismissed on the principle of res judicata as well as complaint is not maintainable on the same cause of action as the first complaint was dismissed. He has also relied upon the order of Hon'ble National Commission in case titled Goa Urban Cooperative Bank Ltd. & Anr. Vs. Franklin Noronha & Anr. (2008) CPJ 12 (NC), order of this Commission in case titled Baldev Sharma Vs. M/s Lally Automobiles (India) P. Ltd. & Anr. F.A.No.61/2020 dated 26.04.2024 and order of Tamilnadu State Consumer Commission in case titled D. Sathish Kumar Vs. Mahindra & Mahindra Ltd. & Anr. He further submitted that the impugned order is bad in law and prays that appeal of the appellant be allowed.
7 Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr. F.A.No.218/2023
10. On the other hand, learned counsel of the respondents No.1 and 2 have submitted that the impugned order does not require any interference and prays that appeal of the appellant/complainant be dismissed.
FINDINGS:
11. The admitted fact which emerges on record is that the complainant purchased a Maruti Suzuki Swift Desire bearing registration No. HP-31B-3633 for a sum of ₹6,40,000/- on 06.01.2016 for his personal use from the opposite party No.1/dealer M/s Competent Automobiles Co. Ltd.
12. The complainant has alleged manufacturing defect in the engine of vehicle in question and claimed that engine of the vehicle in question be replaced.
13. Per contra, the opposite parties have stated that engine of the vehicle stopped working due to 8 Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr. F.A.No.218/2023 hydrostatic lock and the said defect was not covered under the warranty period and the same was repairable, but the complainant has declined to get the engine repaired and insisted for replacement of engine.
14. The onus lies upon the complainant that engine of the vehicle in question was having manufacturing defect. The complainant has relied upon the report of the expert appointed by learned Commission below who has also pointed out the defect in the carbon lining on 4th cylinder. But it has been duly explained by the Territory Service Manager of opposite party No.2/manufacturer in his affidavit that said defect occurred due to hydrostatic lock when water enters into the engine causing alleged damage to the engine.
15. The opposite parties in replies have specifically stated that the said defect in the engine of the vehicle was repairable.
9 Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr. F.A.No.218/2023
16. Since the engine of the vehicle is repairable, the plea of the complainant that engine of the vehicle is having manufacturing defect looses its significance and as such, no manufacturing defect in the engine of the vehicle is proved on record.
17. The plea of the opposite parties that the defect in the engine occurred due to hydrostatic lock and same does not cover under warranty looses its significance in presence of term and condition No.2 of the warranty policy O-2. The term and condition No.2 of the warranty policy is reproduced as under:-
"(2). Term: The term of the Warranty shall be twenty four (24) months or 40,000 kilometers whichever occurs first) from the date of delivery to the first owner.
18. The complainant has purchased the vehicle in question on 06.01.2016 and the complainant reported the defect in the engine of the vehicle to the opposite 10 Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr. F.A.No.218/2023 parties on 13.03.2016 within a period of two months and one week.
19. The opposite parties have not led any specific evidence to prove that vehicle in question was misused or plied in negligent and abnormal way by the complainant. Thus, for want of cogent and reliable evidence, plea of the opposite parties that vehicle was being misused by the complainant and he was negligent in plying the same does not seem to be correct.
20. Thus, the defect in question reported to the opposite parties was within warranty period and since the vehicle in question is lying with the opposite party No.1/dealer, the opposite party No.1/dealer is under legal obligation to repair the engine of the vehicle.
21. The plea of the opposite party/respondent that subsequent complaint filed by the complainant on the same cause of action is not maintainable on the 11 Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr. F.A.No.218/2023 principle of res judicata looses its significance as the earlier complaint was not decided on merits and same was dismissed in default for non-appearance on behalf of the complainant.
22. In view of the above discussion, appeal of the appellant/complainant is partly allowed against the opposite party No.1/dealer and the impugned order is set aside.
23. The opposite party No.1/dealer is directed to do repair work of the engine of vehicle in question and thereafter, handover the vehicle in question to the complainant.
24. The opposite party No.1/dealer is directed to pay a sum of Rs.5,000/- (Five thousand) to the complainant as compensation for mental harassment etc., besides litigation charges to the tune of Rs.3,000/- (Three thousand).
12 Sh.Neel Kamal Versus M/s Competent Automobiles Co. Ltd. & Anr. F.A.No.218/2023
25. The opposite party No.1/dealer is directed to comply the aforesaid order within 45 days from the date of receipt of copy of order.
26. Certified copy of order be sent to the parties and their counsel(s) strictly as per rules. File of learned District Commission alongwith certified copy of order be sent back and file of State Commission be consigned to record room after due completion. Appeal is disposed of. Pending application(s), if any, also disposed of.
Justice Inder Singh Mehta President R.K.Verma Member Manoj 13