State Consumer Disputes Redressal Commission
Dee Dee Motors Pvt. Ltd. vs Nujhat And Another on 16 August, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 89 / 2010
Dee Dee Motors Pvt. Ltd.
1-C, Tyagi Road
Dehradun
......Appellant / Opposite Party No. 2
Versus
1. Ms. Nujhat D/o Sh. Rao Ashfaq Ali
R/o Village Salempur, Roshnabad
P.S. Kotwali, Ranipur
District Haridwar
......Respondent No. 1 / Complainant
2. Director, C.K. Birla
A-34, Mohan Co-operative Industrial Estate
Mathura Road, New Delhi
......Respondent No. 2 / Opposite Party No. 1
Sh. M.K. Kohli, Learned Counsel for the Appellant
Sh. Rao Farman Ali, Learned Counsel for Respondent No. 1
Smt. Deepti Sharma, Learned Counsel for Respondent No. 2
AND
FIRST APPEAL NO. 215 / 2010
C.K. Birla, Director
Hindustan Motors Limited
having its Registered Office at
9/1, R.N. Mukherjee Road
Kolkata - 700 001
......Appellant / Opposite Party No. 1
Versus
1. Ms. Nujhat D/o Sh. Rao Ashfaq Ali
R/o Village Salempur, Roshnabad
P.S. Kotwali, Ranipur
District Haridwar
......Respondent No. 1 / Complainant
2. Dee Dee Motors Private Limited
1-C, Tyagi Road
Dehradun - 248 001
......Respondent No. 2 / Opposite Party No. 2
2
Smt. Deepti Sharma, Learned Counsel for the Appellant
Sh. Rao Farman Ali, Learned Counsel for Respondent No. 1
Sh. M.K. Kohli, Learned Counsel for Respondent No. 2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Mrs. Kusum Lata Sharma, Member
Dated: 16/08/2012
ORDER
(Per: Justice B.C. Kandpal, President):
These two appeals arise out of the order dated 20.03.2010 passed by the District Forum, Haridwar in consumer complaint No. 333 of 2008. By the said order, the District Forum has allowed the consumer complaint and directed the opposite parties - appellants to deliver new vehicle to the complainant and in default, to pay sum of Rs. 3,75,000/- to the complainant together with damages of Rs. 25,000/-. Since both these appeals arise out of the same order, these are being disposed of by this common order.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant - Ms. Nujhat had purchased an Ambassador car on 25.04.2008 at a consideration amount of Rs. 3,75,000/-. It is alleged that the vehicle was not having satisfactory pick-up and there was also noise in the engine of the vehicle. The complainant lodged the complaint with the authorised dealer - opposite party No. 2, but no heed was paid to her complaint and the defect was not removed and the vehicle was not put in proper running condition. The complainant sent a notice to the opposite parties and thereafter alleging deficiency in service on their part, filed a consumer complaint before the District Forum, Haridwar.
33. The opposite party No. 1 filed written statement before the District Forum and pleaded that the problem of low pick-up pointed out by the complainant was duly attended by the opposite party No. 2. It was also pleaded that the complaint was minor in nature and the vehicle was free from any manufacturing defect. It was further alleged that there is no expert opinion to prove that the vehicle is suffering from any manufacturing defect.
4. The opposite party No. 2 also filed written statement before the District Forum and pleaded that there is no defect in the vehicle and the consumer complaint has been filed on false grounds and is liable to be dismissed.
5. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 20.03.2010 in the above terms. Aggrieved by the said order, the opposite party No. 1 has filed First Appeal No. 215 of 2010 and the opposite party No. 2 has filed First Appeal No. 89 of 2010.
6. We have heard the learned counsel for the parties and perused the record.
7. Learned counsel for the appellants (manufacturer and dealer respectively) submitted that there is no material on record to show that the vehicle in question suffers from any manufacturing defect and that the complaint of low pick-up pointed out by the complainant was duly attended by the service personnel of the dealer and the same was found non-existing and that on the 3rd servicing, no complaint regarding low pick-up and noise in engine and body of the vehicle was made by the complainant, which shows that the vehicle was free from any defect and the District Forum has not considered this aspect 4 of the matter and has wrongly allowed the consumer complaint per impugned order, which suffers from vice of infirmity and is liable to be dismissed and the complainant is not entitled to any relief. Per contra, learned counsel for the complainant supported the view taken by the District Forum and submitted that the appeals lack merit and are liable to be dismissed.
8. We have carefully considered the submissions advanced by the learned counsel for the parties.
9. So far as the question of territorial jurisdiction of the District Forum, Haridwar to entertain the consumer complaint filed by the complainant and to decide the same on merit, is concerned, the said issue was raised by the opposite parties before the District Forum and the same was decided by the District Forum vide order dated 28.11.2008 and it was held by the District Forum that it has territorial jurisdiction in the matter. The order dated 28.11.2008 passed by the District Forum was not challenged by the opposite parties by way of filing the revision petition before this Commission and, therefore, the said order has become final and no finding is to be given on that issue.
10. So far as the merit is concerned, in the consumer complaint, the complainant has alleged that the vehicle was having problem regarding pick-up and there was noise in the engine of the vehicle. The complainant has also alleged that there was noise in the tyre of the vehicle and has alleged that the said defects constitute manufacturing defect in the vehicle and that the vehicle suffers from inherent manufacturing defect.
11. The vehicle in question was inspected / checked by the dealer vide Job Card No. 2597 (Paper No. 20 on the record of First Appeal 5 No. 89 of 2010). In the said job card, the problem of low pick-up has been mentioned. The dealer has specifically stated in para 2 of its written statement that no problem / defect was found in the vehicle. On 24.06.2008, when the vehicle was brought for 2nd servicing, the same was checked by the mechanic and the problem of low pick-up, noise and engine and body of the vehicle was not found. The same is the position with the other job cards of the vehicle on record. The complainant has not been able to prove that there was problem of low pick-up in the vehicle and that persisted even after repair / servicing of the vehicle. The manufacturer has specifically pleaded in its written statement that on 12.05.2008, when the vehicle was brought to the opposite party No. 2 for 1st servicing, at that time, the complainant lodged the complaint of low pick-up, but the same was found non-existing by the service personnel of the opposite party No. 2. The complainant has not produced any evidence such as the expert evidence to prove that there was any defect in the vehicle. The Hon'ble National Commission in the case of Classic Automobiles Vs. Lila Nand Mishra and another; I (2010) CPJ 235 (NC) has laid down the law that onus to prove manufacturing defect in the vehicle lies on the complainant and further that expert evidence need to be produced to prove manufacturing defect in the vehicle. In the reported case, it was held that the vehicle having been repeatedly brought to service station for repairs, is no ground to hold that the vehicle suffered from manufacturing defect. The District Forum has held that the bills on record that the defects pointed out by the complainant in her consumer complaint, have been removed. Even if it is assumed that the vehicle was carrying the defects mentioned by the complainant in the consumer complaint, then also unless it is established by cogent and reliable evidence that the vehicle was having manufacturing defect, the complainant is not entitled to a new vehicle or refund of the price of the vehicle only on the basis of 6 finding recorded by the District Forum in its order that the defects pointed out by the complainant have been removed and, thus, the vehicle was free from any defect / shortcoming. Hence in this situation, the question of giving new vehicle to the complainant or refunding its price does not arise.
12. The District Forum has not considered this important aspect of the matter and has erred in holding that the complainant is entitled to the relief claimed and that new vehicle be delivered to her or the cost of the vehicle be refunded to her. The intent of the legislature in promulgating the Consumer Protection Act, 1986 is to secure and protect the interest of the consumer and we think that in the instant case, it was the duty of the District Forum to have afforded an opportunity to the complainant to establish this aspect that the vehicle was, in fact, suffering from manufacturing defect by producing cogent and reliable evidence. From the perusal of the record, it appears to us that the District Forum has also failed to discharge the duty cast upon it. We accordingly feel that the matter should be remanded back to the District Forum with a direction that the District Forum should afford an opportunity to the complainant to produce cogent and reliable expert evidence in order to show as to whether the vehicle, in fact, had been suffering with manufacturing defect or not. The appellants / opposite parties shall also be provided an opportunity to rebut the evidence so adduced by the complainant and only thereafter the District Forum shall record its finding as to whether the complainant is entitled to replace or the vehicle or refund of the price of the vehicle. Under the facts and circumstances of the present case, the judgment and order passed by the District Forum, directing that a new vehicle should be delivered to the complainant and in default to refund the price of the vehicle, appears to be absolutely perverse and 7 wrong. As such, the appeals are fit to be allowed and the order impugned is liable to be set aside.
13. For the reasons aforesaid, both the appeals are allowed. Order impugned dated 20.03.2010 passed by the District Forum is set aside and the matter is remanded back to the District Forum with the direction that the District Forum shall provide an opportunity to the complainant to produce cogent and reliable expert evidence only to the effect whether the vehicle is suffering from any manufacturing defect and the District Forum shall also provide an opportunity to the appellants / opposite parties to produce evidence in rebuttal of the evidence so adduced by the complainant and thereafter the District Forum shall pass a reasoned order, keeping in view the merits of the case. Parties are directed to appear before the District Forum on 20.09.2012. No order as to costs.
14. Let the copy of the order be kept on the record of First Appeal No. 215 of 2010.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE B.C. KANDPAL) K