State Consumer Disputes Redressal Commission
Sh. Pankaj Sood. vs M/S Jkr Motors Pvt. Ltd. & Anr. on 23 June, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 76/2019
Date of Presentation: 08.06.2018
Order Reserved on : 16.12.2019
Date of Order : 23.06.2020
......
Sh.Pankaj Sood S/o Shri Onkar Chand Sood resident of Village
Sughar Post Office Bandla Tea Estate Tehsil Palampur District
Kangra H.P.
...... Appellant/Complainant.
Versus
1. M/s J.K.R Motors Pvt. Ltd. National Highway-20 1 KM Mile
Stone Mataur to Palampur Road Ghurkari Tehsil and District
Kangra (HP) Through its Managing Director.
.....Respondents No.1 /Opposite party No.1
2. M/s TELCO Passenger Car Business Unit K.D.Block Timtri
Pune-411018 through its Managing Director.
......Respondent No. 2/Opposite party No.2.
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Hon'ble Mr. R.K. Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Ms.Kirti Sood vice Mr. Aasheesh Patial
Advocate.
For Respondent No.1 : None.
For Respondent No.2 : Mr.Manoj Chauhan Advocate.
JUSTICE P.S. RANA (R) PRESIDENT :
O R D E R :-
1. Present appeal is filed against order dated 06.01.2018 passed by Learned District Consumer Forum/ 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Pankaj Sood Versus M/s JKR Motors Pvt. Ltd. and Another F.A. No.76/2019 Commission in consumer complaint No.74/2017 titled Pankaj Sood Versus M/s JKR Motors Pvt. Ltd. and Another. Brief facts of consumer complaint:
2. Shri Pankaj Sood filed consumer complaint under Consumer Protection Act pleaded therein that on 25.11.2016 complainant purchased new vehicle i.e. Tata Tiago car bearing registration No. HP 37E-5266 from opposite party No.1 in consideration amount of Rs.509463/- (Five lac nine thousand four hundred sixty three). It is further pleaded that complainant purchased vehicle in question in exchange offer scheme. It is further pleaded that complainant exchanged his old vehicle manufactured in the year 2012. It is further pleaded that opposite party No.1 assessed the value of old vehicle to the tune of Rs.150000/- (One lac fifty thousand). It is further pleaded that vehicle so purchased was hypothecated with Kangra Central Co-Operative Bank. It is further pleaded that after lapse of one month of purchase of vehicle in question defect occurred in vehicle in question. It is further pleaded that vehicle in question used to stop on road suddenly. It is further pleaded that problem was informed to opposite party No.1. It is further pleaded that complainant took the vehicle in question to workshop of opposite party No.1 and engineer of workshop of opposite party No.1 checked vehicle in question and assured complainant that there would be no problem in future. It is further pleaded that after 2 Pankaj Sood Versus M/s JKR Motors Pvt. Ltd. and Another F.A. No.76/2019 plying vehicle in question to distance of some kilometers vehicle in question created problem and stopped in mid way during journey and ignition key of vehicle in question did not work. It is further pleaded that once vehicle in question suddenly stopped in thick forest during late hours of night and complainant had to face huge problem and also sustained mental stress, harassment and tensions.
3. It is further pleaded that vehicle in question used to stop due to high temperature or due to overheating of engine. It is further pleaded that defect was brought to the notice of opposite party No.1 during warranty period of vehicle but opposite party No.1 did not cure defect in question during warranty period of vehicle. It is further pleaded that opposite parties committed deficiency in service and also committed unfair trade practice. Complainant sought relief to the effect that opposite parties be directed to replace vehicle in question with new. In addition complainant sought relief of payment of Rs.200000/- (Two lac) as compensation for mental agony and harassment. In addition complainant sought relief of payment of Rs.50000/- (Fifty thousand) paid by complainant as registration and insurance of vehicle in question. In addition complainant sought relief of payment of Rs. 20000/- (Twenty thousand) as litigation costs. Prayer for acceptance of consumer complaint sought.
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4. Per contra version filed on behalf of opposite party No.1 pleaded therein that consumer complaint is not maintainable. It is pleaded that opposite party No.1 did not commit any deficiency in service. It is further pleaded that complainant visited workshop of opposite party No.1 on 18.12.2016 for first free service and same was completed. It is further pleaded that thereafter vehicle in question was brought to workshop of opposite party No.1 on 29.03.2017 for third free service and third free service was also completed. It is further pleaded that vehicle in question was repaired for accidental repairs on 17.04.2017 at Sansar Motors Mandi H.P. and thereafter for the first time on 18.04.2017 after mileage of 13618 Kilometers vehicle in question was brought to workshop of opposite party No.1 with complaint of engine misfire which was minor defect. It is further pleaded that minor defect in vehicle in question was repaired and vehicle in question is in perfect condition. It is further pleaded that complainant refused to collect his vehicle. It is further pleaded that complainant is estopped to file present consumer complaint due to his act and conduct. It is further pleaded that vehicle in question was used for commercial purpose. Prayer for dismissal of consumer complaint against opposite party No.1 sought.
5. None appeared on behalf of opposite party No.2 before learned DCF/DCC on 19.09.2017 despite service and 4 Pankaj Sood Versus M/s JKR Motors Pvt. Ltd. and Another F.A. No.76/2019 learned DCF/DCC proceeded ex-parte against opposite party No.2.
6. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned DCF/DCC dismissed consumer complaint. Feeling aggrieved against order passed by learned DCF/DCC complainant filed present appeal before State Commission.
7. We have heard learned Advocates appearing on behalf of appellant and co-respondent No.2. Matter was listed for arguments on behalf of co-respondent No.1 on 30.10.2019, 08.11.2019, 29.11.2019 and 16.12.2019 but arguments not addressed on behalf of co-respondent No.1 and State Commission decided to dispose of appeal on merits. We have also perused entire record carefully.
8. Following points arise for determination in present appeal.
1. Whether appeal filed by complainant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed personal affidavit in evidence.
There is recital in affidavit that on 25.11.2016 deponent purchased vehicle in question from opposite party No.1 in 5 Pankaj Sood Versus M/s JKR Motors Pvt. Ltd. and Another F.A. No.76/2019 consideration amount of Rs.509463/- (Five lac nine thousand four hundred sixty three). There is recital in affidavit that deponent purchased vehicle in question in exchange offer scheme. There is recital in affidavit that deponent exchanged his old vehicle manufactured in the year 2012. There is recital in affidavit that opposite party No.1 assessed the value of old vehicle to the tune of Rs.150000/- (One lac fifty thousand). There is recital in affidavit that after lapse of one month of purchase of vehicle in question defect occurred in vehicle in question. There is recital in affidavit that vehicle in question used to stop on road suddenly. There is recital in affidavit that problem was informed to opposite party No.1 during warranty period. There is further recital in affidavit that deponent took vehicle in question to workshop of opposite party No.1 and engineer of workshop of opposite party No.1 checked vehicle in question and assured deponent that there would be no problem in future. There is recital in affidavit that after plying vehicle in question to distance of some kilometers vehicle in question created problem and vehicle in question stopped in mid way during journey and ignition key of vehicle in question did not work.
10. There is recital in affidavit that once vehicle in question suddenly stopped in thick forest during late hours of night and deponent had to face huge problem and also sustained mental harassment and agony. There is recital in 6 Pankaj Sood Versus M/s JKR Motors Pvt. Ltd. and Another F.A. No.76/2019 affidavit that vehicle in question used to stop due to high temperature or due to overheating of engine. There is recital in affidavit that problem was brought to the notice of opposite party No.1 during warranty period of vehicle but opposite party No.1 did not cure defect in question during warranty period. There is further recital in affidavit that legal notice was also served upon opposite parties on 05.05.2017. State Commission has carefully perused all annexures filed by complainant.
11. Opposite party No.1 filed affidavit of Joginder Goel Managing Director of opposite party No.1 in evidence. There is recital in affidavit that vehicle in question was repaired for accidental repairs on 17.04.2017 at Sansar Motors Mandi H.P. There is further recital in affidavit that thereafter for the first time on 18.04.2017 after mileage of 13618 Kilometers vehicle in question was brought to workshop of deponent with complaint of engine misfire. There is further recital in affidavit that defect in vehicle in question was repaired and vehicle in question is in perfect condition. There is further recital in affidavit that complainant refused to collect his vehicle. There is further recital in affidavit that complainant is estopped to file present consumer complaint due to his act and conduct. There is further recital in affidavit that vehicle in question was used for commercial purpose. There is further recital in affidavit that deponent is dealer of opposite party 7 Pankaj Sood Versus M/s JKR Motors Pvt. Ltd. and Another F.A. No.76/2019 No.2 and is not manufacturer of vehicle in question. There is further recital in affidavit that complainant has no cause of action against deponent. State Commission has carefully perused all annexures filed by opposite party No.1.
12. Opposite party No.2 did not file any version and also did not adduce any evidence and opposite party No.2 was proceeded ex-parte by learned DCF/DCC vide interim order dated 19.09.2017.
13. Submission of learned Advocate appearing on behalf of complainant that there is manufacturing defect in vehicle in question and opposite parties be directed to replace vehicle in question with new one is decided accordingly. It is well settled law that manufacturing defect should be proved by way of evidence of expert. In present matter complainant did not file personal affidavit of any mechanic expert in order to prove that there is manufacturing defect in vehicle in question. Plea of complainant that there is manufacturing defect in vehicle in question is defeated on concept of ipse dixit (An assertion made without proof). See 2018(1) CPJ 425 NC titled Pawan Kumar Versus Nissan Motors India Pvt. Ltd. and Ors. See 2017(1) CPR 643 NC titled Bhagwan Singh Shekhawat Versus M/s. R.K. Photostate & Communication & Ors.
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14. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for compensation to the tune of Rs.200000/- (Two lac) for mental harassment and agony is decided accordingly. It is proved on record that vehicle in question was brought to the workshop of opposite party No.1 with problem of engine knocking/hunting/missing during warranty period of vehicle in question. As per record placed on record warranty of vehicle in question was for period of 24 months or upto mileage of 75000 Kilometers whichever occurs earlier. Complainant has specifically mentioned in affidavit that problem of engine knocking/hunting/missing occurred in vehicle in question within one month after purchase of vehicle in question. Opposite parties did not send any interrogatories to complainant. Sate Commission is of the opinion that even opposite parties did not file personal affidavit of mechanic or service engineer on record in order to prove that problem of engine knocking/hunting/missing in vehicle in question was removed in toto. No reason assigned by opposite parties as to why opposite parties did not file personal affidavit of mechanic or service engineer.
15. Adverse inference is drawn against opposite parties for non-filing personal affidavit of mechanic or service engineer on record in order to prove that problem of engine 9 Pankaj Sood Versus M/s JKR Motors Pvt. Ltd. and Another F.A. No.76/2019 knocking/hunting/missing occurred in vehicle in question during warranty period was removed in toto. It is proved on record that opposite parties have received consideration amount from complainant to the tune of Rs.509463/- (Five lac nine thousand four hundred sixty three) and Consumer Protection Act is consumer oriented Act and Consumer Authorities are under legal obligation to protect the rights of consumers strictly as per proved facts and laws. Job Card Annexure OP.1-6 placed on record does not contain report of service advisor Vishal Choudhary. Even opposite parties did not file personal affidavit of Vishal Choudhary. Job card Annexure OP.1-6 also does not bear signature of complainant. State Commission is of the opinion that manufacturer is legally liable for omissions or commissions of its dealer. State Commission is of the opinion that complainant is legally entitled for equitable compensation for mental agony and harassment from opposite parties.
16. Submission of learned Advocate appearing on behalf of complainant is legally entitled for expenses to the tune of Rs.50000/- (Fifty thousand) spent by complainant for registration and Insurance of vehicle in question is decided accordingly. State Commission is of the opinion that complainant is not legally entitled for registration and Insurance charges of vehicle in question because there is no 10 Pankaj Sood Versus M/s JKR Motors Pvt. Ltd. and Another F.A. No.76/2019 privity of contract executed inter se parties that opposite parties would pay registration and Insurance charges of vehicle in question to complainant if defect occurred in vehicle in question.
17. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for litigation costs to the tune of Rs.20000/- (Twenty thousand) is decided accordingly. State Commission is of the opinion that complainant has engaged Advocate before learned DCF/DCC and has paid Advocate fee and other expenses. State Commission is of the opinion that complainant is legally entitled for equitable litigation costs from opposite parties.
18. Submission of learned Advocate appearing on behalf of respondent No.2 that vehicle in question was repaired for accidental repairs on 17.04.2017 at Sansar Motors Mandi H.P. is decided accordingly. Opposite party No.2 did not file personal affidavit of any employee posted in Sansar Motors Mandi H.P. in order to prove that vehicle in question was repaired for accidental repairs in Sansar Motors Mandi H.P. Plea of opposite party No.2 that vehicle in question was repaired at Sansar Motors Mandi H.P. on account of accident of vehicle in question is defeated on concept of ipse dixit (An assertion made without proof). State Commission is of the opinion that if defects occurred during 11 Pankaj Sood Versus M/s JKR Motors Pvt. Ltd. and Another F.A. No.76/2019 warranty period in that eventuality manufacturer and dealer are legally liable to repair vehicle in question free of charges. See 2018(III) CPJ 473 NC titled Rajendra Chimanlal Mody Versus Mahindra & Mahindra Ltd. & Anr. In view of above stated facts and ruling cited supra point No.1 is decided accordingly.
Point No.2: Final Order
19. In view of findings upon point No.1 above appeal filed by complainant is partly allowed. Order of learned DCF/DCC is set aside. It is ordered that opposite parties jointly and severally shall remove defect of engine knocking/hunting/missing in vehicle in question free of charges. It is further ordered that mechanic and service engineer of opposite parties shall file their personal affidavits before learned DCF/DCC to the effect that defect of engine knocking/hunting/missing in vehicle in question has been removed in toto free of charges.
20. It is further ordered that opposite parties jointly and severally shall pay compensation to complainant to the tune of Rs.20000/- (Twenty thousand) for mental agony and harassment. It is further ordered that opposite parties jointly and severally shall pay litigation costs to complainant to the tune of Rs.10000/- (Ten thousand). Opposite parties shall comply order within one month after receipt of certified copy 12 Pankaj Sood Versus M/s JKR Motors Pvt. Ltd. and Another F.A. No.76/2019 of order. Sale bill Annexure C-1 dated 25.11.2016 issued by M/s JKR Motors Pvt. Ltd. and job card Annexure OP1-6 issued by M/s JKR Motors Pvt. Ltd. shall form part and parcel of order.
21. Certified Copy of order be sent to learned DCF/DCC forthwith for information. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. File of State Commission be consigned to record room after due completion forthwith. Functioning of State Commission remained non-operative during winter vacation w.e.f. 11.01.2020 to 23.02.2020 and functioning of State Commission also remained non-operative w.e.f. 24.03.2020 to 15.04.2020 due to Nation wide lock down on account of Corona virus. Hence present appeal is disposed of today. F.A.No.76/2019 is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member R.K.Verma Member 23.06.2020 Manoj 13