State Consumer Disputes Redressal Commission
Hazari Lal vs M/S Naresh Motors International on 22 January, 2016
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.268 of 2012 Date of Institution: 05.03.2012 Date of Decision: 22.01.2016 Hazari Lal son of Sandhu Ram, resident of House No.72, Ward No.17, Sarabha Nagar Himanyupur, Sirhind, District Fatehgarh Sahib. ...Appellant/Complainant Versus 1. M/s Naresh Motors International, near Bajwa Nursing Home, G.T Road, Khanna, District Ludhiana (authorized dealer for international cars and motors ltd) through its Manager. 2. M/s International Autotrac Finance Limited, village Chak Gujran, P.O Pipplanwala, Jalandhar Road, Hoshiarpur through its Manager. 3. International Cars and Motors Limited village Chak Gujran, P.O Pipplanwala 146022, Jalandhar Road, Hoshiarpur through its Manager/Administrative Officer (Manufacturer of car). ..Respondents /Opposite Parties First Appeal against order dated 23.12.2011 passed by the District Consumer Disputes Redressal Forum, Fatehgarh Sahib. Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri. H.S. Guram, Member Present:-
For the appellant : None For the respondent no.1 : Sh.S.L Bhalla, Advocate For the respondent no.2 : Sh. Daman Dhir, Advocate For the respondent no.3 : Sh. Survir Sehgal, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 23.12.2011 of District Consumer Disputes Redressal Forum Fatehgarh Sahib, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant.
2. The complainant Hazari Lal has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that on 27.02.2009, OPs received marginal money of Rs.1,00,000/- from the complainant and sold the RHINO-RX Car bearing registration no.PB-23H-4804 for Rs.6,70,000/- through financer/OP No.2 to complainant. OP No.1 called the manager of OP no.2 at his agency for granting loan and said manager took the signatures of the complainant on various blank documents and also got 60 blank cheques of Punjab National Bank bearing signatures of the complainant. OP No.1 delivered the above said car to complainant and issued a bill dated 27.02.2009, as sale of invoice of the car. OP No.3 is manufacturer of the said car. The complainant deposited four installment of loan and 56 blank cheques signed by the complainant are still with OP no.2. The defective car has been supplied to complainant by OP No.1 manufactured by OP No.3. The engine of the said car become heated up and did not give service after 30-35 kilometer. AC of the car did not give normal cooling. The car used to damage the rubbers of tyres abnormally and it could not run in hills. The engine of the said car used to seize after running 30-35 kilometer. The said car used to bubble at the speed of 50-55 kilometer per hour. Engine of the said car had seized about 9-10 months back. The matter was brought to the office of OP No.1 for repairing of engine and removing of above-said defects. The car was kept by OP No.1 in its workshop. The engine and turbo of the said car was also changed, air cleaner was also repaired and then changed, bearings of car in question were also changed, Clutch of said car was repaired about five times and clutch plates were also changed two time. OP No.1 refused to change the tyres of the car. OP No.1 is dealer, who harassed the complainant. OP No.2 is bound to return the above said 56 blank cheques to complainant. OP No.3 being manufacturer is bound to return the said cheques after getting the car in question from the complainant. The complainant has, thus, filed the complaint directing the OP no.1 to make the payment of Rs.50,000/- to the complainant, as margin money from the complainant and OP No.1 be directed to return above-said 56 blank cheques signed by the complainant and OP No.2 be further directed not to seize the car of the complainant and OP No.3 be directed to return the price of the car in question, besides complainant prayed for Rs.1 lac as compensation and Rs.5,000/- as costs of litigation.
3. Upon notice, OP no.1 appeared and filed written reply raising preliminary objections that complaint is an abuse of the process of law. The complaint is alleged to be false and frivolous. The complaint is bad for non-joinder and mis-joinder of necessary parties. On merits, it was admitted that on 27.02.2009; the car was purchased by the complainant from OP No.1 and complainant paid Rs.1 lac as margin money out of the total price of the car i.e. Rs.6,70,000/-. The remaining amount was got financed by the complainant from OP No.2. It was denied that manager of OP No.2 took the signatures of the complainant on various blank papers and also got 60 blank cheques of the complainant. The OP No.1 further pleaded that the car in question is of latest technology and is one of the best pieces. It was denied that car could not run in hill station. It denied any defects in the car, as pleaded in the complaint by the complainant. It further pleaded that the car was brought on 27.03.2009 for first service, when it had covered 10070 kms. Thereafter, the complainant brought the vehicle for service before OP on 10.06.2009 when it had covered 21524 Kms. The complainant brought the vehicle for service on 05.08.09, when it had covered 35800 Kms. The complainant brought the vehicle for service on 02.09.09, when it had covered 45847 Kms. The complainant brought the vehicle for service on 19.09.2009, when the vehicle had covered 48020 Kms. The complainant brought the vehicle for service on 24.09.09, when the vehicle covered 57500 Km and then on 06.01.2010, when it had covered 58000 Kms. OP no.1 controverted the other averments of the complainant and prayed for dismissal of the complaint.
4. OP No.2 filed its separate written reply and contested the complaint of the complainant. It further pleaded that it has nothing to do with the car and it is only financer of the complainant and it sanctioned the loan amount of Rs.5,36,000/- to the complainant. It was denied that its Manager obtained the signatures on any blank papers or documents or obtained any such 60 blank cheques from the complainant. It further pleaded that complainant would make the payment of monthly installment of Rs.13,178/- in cash or by cheque by OP and loan amount was payable in 60 installments to OP No.2. The complainant has not paid the installment after initial installment, as pleaded in para no.2 of the complaint. OP No.2 prayed for dismissal of the complaint.
5. OP No.3 filed its separate written reply and contested the complaint of the complainant by raising legal objections that complainant is not a consumer and complaint is barred by time. On merits, it was averred that no person gives blank cheque to anyone. It further pleaded that there was no manufacturing defect in the vehicle and it has been manufactured by good company. It further pleaded that there must be some carelessness on the part of the complainant in plying the vehicle and price of the vehicle is increased or decreased only as per policy of the company. It denied that there was any defect in the AC or Turbo of the car or any other manufacturing defect. The warranty was for 50000 Kms only and vehicle is out of warranty. OP No.3 prayed for dismissal of the complaint.
6. The complainant tendered in evidence, his affidavit Ex.C-12 along with copies of documents Ex.C-1 to Ex.C-11and copies of documents Ex.C-12 to Ex.C-17, affidavit of Pankaj Sood Partner M/s Naresh Motors G.T Road Khanna Ex.C-18 and copy of order dated 16.12.2010 Ex.C-19. As against it; OPs tendered in evidence affidavit of Sachin Kumar Patial Assistant Law Officer International Autotrac Finance Limited Ex.RW-1/a along with copies of documents Ex.R-1 to Ex.R-4, affidavit of Palwinder Singh Deputy Manager International Cars and Motors Chak Gujran P.O Piplanwala Jalandhar Ex.RW-4/A, affidavit of Pankaj Sood Partner M/s Naresh Motors G.T Road, Khanna Ex.R-X. On conclusion of evidence and arguments, the District Forum Fatehgarh Sahib, dismissed the complaint of the complainant by virtue of order dated 23.12.2011. Dissatisfied with the order of the District Forum Fatehgarh Sahib dated 23.12.2011, the complainant now appellant has preferred this appeal against the same.
7. We have heard learned counsel for the respondents of this appeal as none appeared for the appellant since after 16.10.2015 on any date hence we proceed to decide the case on the basis of its merits with the aid of evidence. We are mainly concerned with this fact as to whether there was any manufacturing defect in the vehicle or not. The car in question was purchased by the complainant from OP No.1 for above-mentioned price and the amount whereof was got financed from OP No.2, as car was manufactured by OP No.3. Ex.C-1 is job card dated 27.7.2009 and the date of sale of vehicle is 23.02.2009. On customer's request engine oil, oil filter and fuel filter, coolant pipe of the vehicle in question were changed. The vehicle had covered 10070 Kms, vide job card Ex.C-1 dated 27.7.09. Ex.C-2 is job card dated 10.06.2009, at the fourth service of the vehicle engine oil, old filter, transmission oil were also changed and windshield tinted damaged and vehicle had covered 14990 Kms. Vide Job Card Ex.C-3 dated 08.07.09 general checkup of the vehicle was conducted and on customer request engine oil was changed and vehicle had covered 21524 Kms. Vide job card Ex.C-4 dated 5.08.07, clutch of vehicle was not working, gear head checked and vehicle had covered 35800 Kms. Vide job card Ex.C-5 dated 14.08.09, the vehicle had covered 37200 Kms. Vide job card Ex.C-6 dated 02.09.09, the vehicle had covered 45847 Kms. Vide job card Ex.C-7 dated 19.09.09, the vehicle had covered 48020 Kms. Vide job card Ex.C-8 dated 24.09.09, the vehicle had covered 53827 Kms. Vide job card Ex.C-9 dated 26.10.09, the vehicle had covered 57500 Kms. Vide job card Ex.C-10 dated 7.11.09, the vehicle had covered 68900 Kms. The vehicle was purchased by the complainant from OPs against the price on 27.2.09 and up till 05.01.2010. Vide job card Ex.C-11, the vehicle had covered 58000 KMs. In the above job cards, repairs were conducted of normal engine parts of the vehicle. AC was not giving proper cooling and said car used to damage the rubbers of tyres abnormally and said car cannot run in hills. The engine of said car used to seize after running 30-35 Kms per hour. Ex.C-13 is registration certificate of the vehicle in the name of the complainant. Ex.C-14 is cash receipt dated 06.04.2010 for payment of Rs.5,000/- by the complainant. Ex.C-15 is receipt dated 25.6.2009 for payment of Rs.13,200/- to OP No.2. Ex.C-16 is receipt dated 20.07.09 for payment of Rs.13160/- to OP No.2 by the complainant. Affidavit of Pankaj Sood Partner M/s Naresh Motors G.T Road, Khanna District Ludhiana is Ex.C-18 on the record. Ex.C-19 is order passed by District Forum giving liberty to complainant to file fresh complaint on the same cause of action. To refute this evidence, OPs tendered in evidence affidavit of Sachin Kumar Patial Assistant Law Officer, International Autotract Finance Limited Ex.RW-1. He stated in this affidavit that complainant has not approached the Forum with clean hands. No signatures of the complainant were taken fraudulently on any blank papers or cheques, as pleaded by him. He denied the averments of the complainant. He pleaded that OP No.2 financed the loan to the complainant to purchase the car. Notice issued to complainant under Section 138 of N.I Act is Ex.R-1. Complaint filed by OP No.2 against the complainant is Ex.R-2 under Section 138 of the Motor Vehicle Act. Ex.R-3 is the agreement executed between the complainant and OP No.2. Ex.R-4 is Simulate Foreclousure Letter. Affidavit of Palwinder Singh Deputy Manager Ex.RW-4/A on behalf of International Car and Motors and Ex.R-X is affidavit of Pankaj Sood Partner M/s Naresh Motors/OP No.1.
8. From appraisal of the above-referred evidence on the record, we find that complainant brought the vehicle for service to OP No.1 on the dates as recorded in the pleadings. On 06.01.2010, the vehicle had covered 58000 Kms when it was brought for service. Any manufacturing defect was stoutly denied by the OPs. OP No.2 pleaded that the loan amount of Rs.5,36,000/- was sanctioned to complainant and complainant was to pay monthly installment of Rs.13,178/- to OP No.2 either in cash or by cheque, which was payable in 60 monthly installments. Any unfair trade practice was denied by OP No.2, as pleaded by the complainant in the complaint. We find that it is for the complainant to prove the manufacturing defect in the vehicle. There is no expert report placed on the record by the complainant to prove the manufacturing defect in the vehicle. Mere submission of the complainant to this effect would not suffice. The matter has been examined by National Commission in "Ram Autar Santoria versus Bihar State Electricity Board and others" reported in 2005(1) CPC, wherein it has been held that, as per settled position of law that if a part could be replaced or a defect could be removed, then replacement cannot be ordered. National Commission also held in "Classic Automobiles versus Lila Nand Mishra and another," reported in 1 (2010) CPJ 235 (NC) that no expert evidence produced to prove manufacturing defect in vehicle. Alleged defects cannot be termed as manufacturing defect. Vehicle repeated by brought to the service station for repairs; no ground to hold that vehicle was suffering from manufacturing defects and manufacturing defect in the vehicle not proved. Even from the job cards on the record, we find that no manufacturing defect in the vehicle of the complainant has been proved on the record. OP No.3 specifically pleaded in their written reply that they gave the warranty up to 50000 Kms of the car in question. The car had already run 68900 Kms, vide job card Ex.C-10 on the record. In the circumstances of the case, we do not find any fault in the order of the District Forum dismissing the complaint of the complainant.
9. As a result of our above discussion, we do not find any merit in the appeal and same is hereby dismissed.
10. Arguments in this appeal were heard on 19.01.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER January 22, 2016 (ravi)