State Consumer Disputes Redressal Commission
Sunil Mehra vs Concorde Motors Ltd. on 29 September, 2012
IN THE STATE COMMISSION : DELHI Date of Decision: 26.9.2012 Complaint No. 67/2001 Shri Sunil Mehra S/o Shri S.N. Mehra, Sole proprietor of B.K. International 817. Latra Neel, Chandni Chowk, Delhi-110 006 ..Complainants vs 1. M/s Tara Engineering & Locomotive Co. Ltd. 26th Central Tower, World Trade Centre, Mumbai-100 005 Also at Flats No.121-26 11th floor, E-Block, International Tower, Nehru Place, New Delhi-110 015 2. M/s Concorde Motors Ltd. A company incorporated under the Companies Act, Jeevan Bharti Tower No.1 10th Floor, 124, Connaught Circus, New Delhi-110 001 -----Opposite Parties CORAM Salma Noor, Member
V.K.Gupta, Member(Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
V.K.GUPTA
1. This is a complaint under section 17 of the Consumer protection Act, 1986.
2. In nutshell, facts are that in August 1999, the complainant visited show room of OP-2 for the delivery of car and on 19.8.1999 paid a sum of Rs.1,12,403/- for Cezari red Tata Indica Diesel DLX car. However on the inspection it was found that left side bulb was not working and there was difference in the colour of the roof and rest of the body. Bonnet of the car could not be opened. Consequently the complainant refused to take the delivery of the car. Thereafter the complainant also visited the show room of OP-2, who insisted to take delivery of the said car, which was shown in August, 1999 saying that otherwise it would not be possible to get any other car as there was a lot of rush. Therefore, the complainant was succumbed to the pressure of the OP-2 and was forced to take the delivery of the said car. On 10.9.1999 he made a payment of Rs.1250/- as parking charges. The complainant was given a letter to the incharge of the dealers workshop to remove the minor defects. In pursuance of this, the complainant took the car to the workshop of the OP-2 where bulb was replaced but other defects were not removed. However, it was assured that the same would be done in December, 1999 when the colour of the car would be changed. From that day, the car has been given the problems namely hand break is not working, making huge noise while turning left and alignment is not in order and many other minor defects, but these defects have not been removed by OP-2 . OP-2 charged Rs.5200/-, which the complainant paid on 20.12.1999 otherwise the car was not to be allowed to be taken from the workshop. Since these technical difficulties were not removed, therefore, it possesses many other difficulties in the car. The complainant wrote many letters, but nothing was done. The complainant had paid the entire price of the car, which comes to Rs.3,82,436/-. The complainant claim the replacement of the car with new one or in the alternative the refund of the price of the car amounting to Rs.3,82,436/- together with interest @ 24% p.a., Rs.1,00,000/- as compensation and Rs.22,000/- on account of expenses incurred by him.
3. OP No.1 has filed the written statement and denied the entire allegations. It contended that the car was taken in the name of the B.K. International of which complainant is the sole proprietor. The use of the said car by an individual of the firm occasionally for personal use would not changed the use of the car from commercial nature. The complainant is utterly failed to establish neither any inherent manufacturing defect in the car nor any deficiency in service. It is admitted that the OP No.2 has delivered the car in the month of August, 1999 and at that time the car was shown Cezari red Tata Indica Diesel DLX car. In para No.2 of the preliminary submissions, it is admitted that there was very slight difference in the colour of the roof of the car with the rest of the body. It was intimated to the complainant at that time that the slight defect in the colour of the car is not removable and the same is curable by fresh painting on the roof to which the complainant agreed and took the delivery of the said car.
On 14.12.1999 only routine service was done and minor defects were also attended and removed. The car in no way has any manufacturing or technical defect.
On 20.12.1999 the OP No.2 has completed the entire painting of the roof free of cost and when the car was taken to the workshop of OP No.2, the minor defects were also removed. Therefore, complainant is not entitled to claim any relief.
4. OP No.2 has filed the separate written statement and denied the entire allegations. The car in question was subjected to detailed examination after manufacturing and pre-delivery inspection before the sale of the same to the complainant and further the complainant has fully examined and inspected the same. Complainant clearly acknowledged received the vehicle in perfect condition and complete in all respect. There is no deficiency in service. The Complainant is not a consumer within the meaning of the Section 2 of the Consumer Protection Act, 1986 and this Forum has no jurisdiction. The vehicle is being used for commercial purposes. Delivery of the vehicle was made by OP-2 with the consent and agreement of the complainant. Whenever any problem is brought to the notice of the OP-2, the same was duly removed to the satisfaction of the complainant. There is no manufacturing defect. On 14.12.1999, for the first time the car was brought to the workshop of OP-2 and pointed out some problem in the wheel alignment and some other minor defects, which were removed. Whenever the vehicle was taken to the workshop of OP-2, the problems were removed immediately. The complainant is not entitled to claim any relief.
5. The complainant has further filed the rejoinder and denied all the contentions raised by the OP in their WS.
6. Both the parties have filed the evidence in their support.
7. We have heard Ld. Counsel for both the parties and perused the material on record.
8. The counsel for the complainant very vehemently submitted that there is a manufacturing defect, therefore, replacement of the car or the payment of the cost of the car amounting to Rs.3,82,436/- be made. On the other hand it is argued by the Counsel for the OPs that there is no manufacturing defect at all. It may be stated at this stage that neither the complainant nor the opposite parties has filed any evidence to show as to what is the manufacturing defect in the car in question and the burden lies on the complainant to establish that there is manufacturing defect in the car in question so as to seek relief of the replacement of the car. It may be revealed here that the complainant has not filed any expert evidence to point out as to what was the manufacturing defect.
9. According to the averment made in the complaint, it is admitted by him that the car in question was shown to him by the OP No.2 in the show room and it was agreed by the complainant to take delivery against the balance payment, which was made on 19.8.1999. it is further admitted that he was shown a Cezari red Tata Indica Diesel DLX car and he made the inspection at that time that the left side bulb of the car was not working and there was some difference in colour of the roof and rest of the body.
It is further averred in the complaint that on the assurance of OP No.2 that the defect in colour will be removed and the bulb will also be repaired/changed. On the assurance of this, the complainant made entire payment and took the delivery of the same. The complainant himself has file some job cards which goes to show that whenever the minor repair were pointed out by the complainant in the workshop of OP-2, the said repair/defects were removed. On account of this, it is argued by the Counsel for the OP that no presumption can be done that there was any manufacturing defect. It has been held by Honble Supreme Court in Maruti Udyog Ltd. vs Sushil Kumar Gangotra and others II 2006 CPJ(SC) wherein it was held that request for replacement of car even on the allegation of the manufacturing defect cannot be accepted. It was further observed that responsibility of the dealer under warranty was only to repair or replace any part found to be defective and if necessary repairs and replacement of components are carried out free of charges during the period of warranty it does not constitute deficiency-in-service. Replacement of the vehicle simply because clutches or assembly were repaired or replaced during the warranty was held unjustified in this case and only a sum of Rs.50,000/- was awarded as compensation to the aggrieved parties.
10. In other case reported as II 2005 CPJ 72(NC) Swaraj Mazada Ltd vs P.K. Chakrapur and ors., it was held that lower mileage does not amount to manufacturing defects.
In a recent case decided by the National Commission reported as Classic Automobiles vs. Leela Nand Mishra II (2010) CPJ 235 it has been held that if no expert evidence is produced to prove manufacturing defect in the vehicle, and the vehicle is repeatedly brought to Service Station for repairs cannot make a ground to hold that vehicle suffers from manufacturing defects. Similar observations have been made in Revision Petition No.1153 of 2005 that Honble National Commission while observing that admittedly it had warranty of 18 months which expires on 10.12.2000 and the complaint had been filed on 21.2.2002 while the Ld. Counsel for the complainant could not satisfy as to what be liability of the manufacturer after the expiry of the warranty period. No expert evidence was brought on the record in the said case to support that the vehicle ahd been manufacturing defects, therefore, it was held that District Forum is not following the procedure made under Section 13 of the C.P. Act erred in holding the manufacturer guilty of deficiency-in-service or that the vehicle had manufacturing defects. The Honble National Commission long back had held in this case that the award of compensation under the CP Act had to be made only on well recognized legal norms covering quantification of damages or compensation. The compensation has to be awarded on a rational basis after consideration of material produced before the Adjudication Forums, enumerating sufferings, mental torture and the extent to which monetary loss has been caused thereby to the complainant.
11. As revealed from the averment made by the complainant as well as OPs, we find that the only grievance of the complainant in this case is that there was some difference of colour between roof and the other parts of the body and some very minor problems. On the basis of the documents filed by both the parties it is proved that minor defects were removed by OP-2 and the vehicle was made in perfect order. It may be mentioned here that the vehicle was purchased in the year 1999 and since then it is being used by the complainant and it remained never idle at any point of time. Under these circumstances, the replacement of the car from or the refund of the entire price of the vehicle is unjustified after the vehicle is in use for more than 10 years.
12. There is no material on record to establish that the vehicle is suffered any manufacturing defect.
13. Since the complainant was not satisfied with the performance of the vehicle, therefore, OP-2 can be held guilty of deficiency in service as defined under the Consumer Protection Act, 1986 for which this Forum is empowered to issue order directing the OP-2 to do one or more of the following things under Sectrion 14(1) of the Act:
i) To replace the goods with new goods of similar description free from any defect;
ii) To return to the complainant the price or as the case may be the charges paid by the complainant and;
iii) To pay such amount as compensation for any loss or harassment suffered by a consumer due to negligence of the OP and also;
iv) To dis-continue the unfair trade practice or restrictive trade practice are not repeated reference is made section 14 of the Act.
Honble Supreme Court in Maruti Udyog Ltd. (Supra) refused the request for the replacement of the car and also refused to refund the price of the car but awarded a compensation of Rs.50,000/- to the complainant. In the case in hand, it is admitted by both the parties that the colour of the roof of the car was different with entire body of the car and there were some minor defects which has caused mental agony, harassment and sheer suffering to which we quantify the amount of the compensation as Rs.50,000/- inclusive of all.
14. Under the circumstances, we direct OP No.2 M/s Concorde Motors Ltd., Connaught Circus, New Delhi to pay Rs.50,000/- to the complainant on account of mental agony, harassment and sheer suffering inclusive of litigation charges.
(Salma Noor) Presiding Member (V.K.Gupta) Member(Judicial) Arya