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2004 DIGILAW 174 (CHH)

MAHENDRA & MAHENDRA v. NAND KUMAR DWIVEDI

2004-09-23

V.K.AGRAWAL, VEENA MISRA

body2004
ORDER V.K. Agrawal 1. This appeal, u/s 15, of the Consumer Protection Act, 1986 is directed against the order dated 22-5-2003 in complaint no. 176/98 by District Consumer Disputes Redressal Forum, Bilaspur (herein after called 'District Forum' for short), directing that the appellants and respondent no. 3 & 4 shall refund to the complainant/respondent no. 1 an amount of Rs.3,06200/- with compensation of Rs. 1,00,000/- and cost of the complaint. 2. The facts not in dispute are that a Commander Jeep was purchased on 22-11-97 by the complainant/respondent no. 1. The said jeep bears registration number MP 26-E 7018. The jeep was manufactured by the appellant no. 1 and was sold by its dealer appellant no. 2 to the complainant/ respondent no. 1 herein. 3. The averments in the complaint were that the jeep was got financed by the complainant from the Ashok Leyland Finance Co. and instalments thereof were to be paid by him. It was averred that the vehicle carried a warranty of one year. It was also averred that the said jeep developed several defects including crack in the chassis; defect in the engine and other defects as detailed in para 3 of the complaint. It was further averred that though he complained several times to the appellant no. 2/dealer about the defects as above, but there was no proper response from the dealer. Hence, the complainant sent a letter dated 4-4-98 to the respondent no. 2. However, since his complaint remained un-attended, the complainant served the opposite parties including the respondent no. 2 with legal notice dated 28-498, where after the present complaint was filed. The complainant prayed that the vehicle purchased by him be directed to be replaced by a new one, the instalments paid by him be refunded to him and the margin money paid by the complainant be also directed to be refunded to him and that compensation of Rs. 20,000/- be also awarded in his favour. Affidavit in support of his complaint was filed by the complainant. 4. Opposite parties no. 1, 2 & 3 have filed a joint written version resisting the complaint. According to them, there was no manufacturing defect in the vehicle. It was averred that the complainant/respondent no. 1 brought the vehicle for first servicing on 6-12-97. The vehicle was serviced free of charge and returned to the complainant/respondent no. 1. 4. Opposite parties no. 1, 2 & 3 have filed a joint written version resisting the complaint. According to them, there was no manufacturing defect in the vehicle. It was averred that the complainant/respondent no. 1 brought the vehicle for first servicing on 6-12-97. The vehicle was serviced free of charge and returned to the complainant/respondent no. 1. The vehicle was again brought on 9-12-97 in the workshop of appellant no. 2 dealer, on account of defect in self. The defect was rectified and the vehicle was handed back to the complainant on the same day. On 9-1-98 the jeep was brought for 2nd free servicing in the workshop of the opposite party appellant no. 2. There was no complaint of any defect and the jeep was returned to the complainant after free servicing. The complainant brought the vehicle for 3rd time on 16-1-98 with complaint of minor defect in the brake which was duly rectified and the complainant/respondent no. 1 issued a satisfaction certificate and had taken back the jeep on the same day. It was also averred that on 17-1-98 the complainant brought the vehicle for 3rd free servicing, which was done on the same day and the jeep was returned to the complainant on the same day. Thereafter, on 27-3-98, the complainant brought the jeep to the workshop of the appellant no. 2 for rectification of defect in pressure plate, release bearing. The complaints as above were duly attended by the appellant no. 2 and necessary parts were replaced without charging any amount from the complainant. The complainant executed a satisfaction note regarding the above service. It was further averred in the written version that on 31-3-98 the complainant brought the jeep again to the workshop of the appellant no. 2/dealer, who changed the 'bendexdry' under the warranty and no charges were recovered from the complainant. It is further averred that on 4-4-98 the complainant made a written complaint regarding the defect in the vehicle upon which the appellant no. 2/dealer rectified the defect in self on 8-4-98, defect in radiator on 11-5-98 and other defects on 26-6-98 and 9-7-98. It was also averred that on 28-5-98 the welding of chassis of the jeep was also carried out and the above work was done without charging any amount from the complainant and the complainant recorded a satisfaction note regarding above jobs. It was also averred that on 28-5-98 the welding of chassis of the jeep was also carried out and the above work was done without charging any amount from the complainant and the complainant recorded a satisfaction note regarding above jobs. According to the averments of the opposite parties the complainant/respondent no. 1 did not raise any complaint about the defect in engine till 9-7-98. It was averred that there was no defect in engine and minor defects complained of by the complainant/respondent no. I, were duly attended by the dealer/appellant no. 2. 5. The opposite parties also averred that the complainant used to utilize the vehicle for commercial purposes and had hired the jeep for Nav-Bharat Press. However, all the defects as reported by the complainant were duly attended and were rectified. It was averred that the complainant filed the complaint to harass the opposite parties. 6. The Distt. Forum held that there was manufacturing defect in the vehicle and therefore, the complainant was entitled to get a new vehicle and in the alternative the opposite parties were liable to refund the amount of Rs. 3,06,200/- to the complainant and to pay him compensation of Rs. I,00,000/besides Rs. 10,000/- as cost of the complaint. 7. It may be noticed that the Distt. Forum initially passed an order dated 30-6-99. An appeal no. 1038/99 was preferred before the M.P. State Consumer Disputes Redressal Commission, Bhopal and the said Commission remanded the case to the District Forum by its order dated 31-1-2002. The Distt. Forum, therefore, in pursuance of order of the State Commission again afforded opportunity of hearing to the parties, where-after the impugned order dated 22-5-2003 was passed. 8. The main questions that arise for consideration are: as to whether the vehicle sold to the complainant/respondent no. I by dealer/respondent no. 2 was having manufacturing defect and whether the complaints regarding the defects in the said vehicle remained unattended, and if so, whether the complainant/respondent no. I is entitled to any relief? 9. The complainant has averred that there were several defects in the jeep including crack in chassis and some other defects as enumerated by him in Para-3 of his complaint, in which it has been mentioned that the engine was having defect. However, what was the specific defect in the engine has not been enumerated in the complaint. 9. The complainant has averred that there were several defects in the jeep including crack in chassis and some other defects as enumerated by him in Para-3 of his complaint, in which it has been mentioned that the engine was having defect. However, what was the specific defect in the engine has not been enumerated in the complaint. It may be noticed that according to the appellants, the jeep had been brought several times for free servicing which was done. It is further averred that the complaints of the complainant were duly attended to, by the dealer/appellant no. 2. In the above context, Kailash Singh, the Manager of the appellant no. 2/dealer has filed his affidavit. 10. It appears that the vehicle was brought by the complainant for Ist servicing on 6-12-97 and it was duly attended to. It does not appear that on that day there was complaint of any defect, regarding the vehicle. Thereafter, the vehicle was brought for 2nd servicing on 9-1-98, as would be clear from the job sheet and the 2nd servicing was also duly carried out by the dealer appellant no. 2. It appears that there was no complaint regarding the vehicle on that date also. The vehicle was then brought to the appellant no. 2/dealer's work shop on 11-5-98 for Radiator assembly change and Rear wheel check up. It appears that the radiator assembly was changed as would be clear from the job satisfaction report signed by the complainant on the job sheet of that date. It may also be noticed that on 27-3-98 the complainant's complaint regarding clutch problem was recorded in the job sheet of the appellant no. 2, dealer. It appears from the copy of the said job sheet that on the same day the pressure plates, release bearing and carrier were changed, under the warranty and thus the defects in the vehicle were duly attended to and rectified. The said job sheet is duly signed by the complainant, wherein he has recorded his satisfaction with the work done. 11. It is further noticed that the warranty satisfaction slip dated 28-798 shows that pressure plates and work in the radiator repairing was undertaken on that day under warranty, without realising any charge from the complainant and satisfaction was duly recorded by the complainant on the above work, as would be clear from the job sheet. 11. It is further noticed that the warranty satisfaction slip dated 28-798 shows that pressure plates and work in the radiator repairing was undertaken on that day under warranty, without realising any charge from the complainant and satisfaction was duly recorded by the complainant on the above work, as would be clear from the job sheet. Self check up and rectification of defect under warranty was undertaken by the dealer on 21-998 as would be clear from the warranty satisfaction certificate signed by the complainant. Body welding etc. and floor change was also undertaken by the complainant, as would be clear from the warranty satisfaction slip dated 13-11-98 signed by the complainant in satisfaction of the work done by the appellant no: 2/dealer. 12. In view of the above the averments of the complainant that his complaints were never attended to by the appellant no. 2/dealer and the defects of vehicle were not rectified by the appellant no. 2, does not appear to be well founded. 13. It may also be noticed that the main complaint of the complainant/ respondent no. 1 was that the chassis of the vehicle had developed crack It may be noticed that Manager of appellant no. 2/dealer Kailash Singh has sworn an affidavit on 27-3-97 and stated that the old chassis was changed and was replaced by the new chassis. In the above context, photographs of the old chassis showing its replacement in the workshop of the appellant no. 2/dealer, have also been filed in the Distt. Forum. It also appears that the appellant no. 2 dealer averred that after the replacement of the new chassis the old chassis number was punched on the new chassis. Probably it was so done in view of the fact that chassis number of the vehicle may remain the same, as was mentioned in the registration certificate. It may also be noticed that the complainant has not filed any counter affidavit in rebuttal of the aforesaid affidavit of Kailash Singh and has not come forth to deny the photographs of the old chassis produced, on behalf of the opposite parties. The complainant has thus failed to effectively rebut the' averments of the appellants that the old chassis was replaced and a new chassis was fitted by them. That being so, it appears that the new chassis has been replaced in place of old chassis by the dealer/appel1ant no. 2. The complainant has thus failed to effectively rebut the' averments of the appellants that the old chassis was replaced and a new chassis was fitted by them. That being so, it appears that the new chassis has been replaced in place of old chassis by the dealer/appel1ant no. 2. 14. It may also be noticed that the complainant wrote a letter dated 129-98 to the appel1ant no.2/dealer, in which he stated that the defects in his vehicle have been duly attended to and only chassis and body welding and painting remains to be done. As noticed earlier the chassis is also replaced. In view of the above, it is clear that the complaints in the vehicle were duly rectified by the appellant no. 2/dealer and therefore, it cannot be said that the complaints of the complainant/respondent no. 1 regarding the defects in the vehicle were not rectified or there was no response in that regard from the appellant no. 2/dealer. 15. It may also be noticed that the complainant had given a letter dated 30-10-98 to the appellant no. 2/dealer stating that if the replacement of the chassis etc. and other complaints are attended to, he will be withdrawing the complaint from the District Forum. The said letter is filed in the Distt. Forum. The material is on record shows that the chassis has been replaced by the dealer/appellant no. 2 and other defects have been attended to from time to time as desired by the complainant and that he also recorded his satisfaction. That being so, in view of assurance as above, given by him to the appellant no. 2/dealer, the complainant should have in all fairness not proceeded with the complaint. 16. It may further be noticed that it was obligatory for the complainant to produce expert opinion regarding the manufacturing defect in the vehicle. He has failed to do so. The District Forum in the above context mainly relied upon the report dated 10-6-99 of V.K. Shrivastava, Surveyor, Assessor, & Valuer. It is not clear as to what are his qualifications and whether he is an Automobile Engineer. The said report only indicates that he examined the' vehicle in the capacity of Surveyor and Loss Assessor. The surveyor has not filed any affidavit in support of his report. He has examined the vehicle after the expiry of period of warranty. It is not clear as to what are his qualifications and whether he is an Automobile Engineer. The said report only indicates that he examined the' vehicle in the capacity of Surveyor and Loss Assessor. The surveyor has not filed any affidavit in support of his report. He has examined the vehicle after the expiry of period of warranty. In view of the above, the report of V.K. Shrivastava does not establish manufacturing defect in the vehicle. In any case, as noticed earlier the defects in the vehicle appear to have been duly attended to and the chassis was also replaced by the appellant no. 2/dealer. Hence, there appears to be no deficiency of service by the appellants or defects in the vehicle sold by the appellant no. 2. 17. In view of the above, the complainant in our opinion is not entitled to any relief. Consequently this appeal is allowed. The impugned order is set aside and the complaint stands dismissed. Appeal Allowed.