AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Md. Zaryab J. Rizvi, Advocate for the appellant and Ms. Meenakshi S. Devgan, Advocate for respondent No.1. None appeared on behalf of respondents 2 & 3.
The above appeal has been filed against the order dated 20.12.2016 passed by Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow in Complaint No.197 of 2013 whereby the State Commission dismissed the complaint filed by the complainant.
Nigar Usmani (appellant herein) filed Consumer Complaint No.197 of 2013 with the State Commission to direct the opposite parties to (1) change the vehicle in question with a new vehicle or refund the amount of Rs.21 lakh with interest @ 18% p.a. from the date of purchase; (2) Rs.15 lakh towards the financial loss and mental agony; (3) waive the interest on the loan amount till new vehicle is made available; (4) pay litigation cost of Rs.20000/-; and (5) any other relief which Hon’ble Commission may deem proper.
Nigar Usmani (the complainant) purchased a vehicle Mahindra Rexton R 270 XVT-RX7 for a sum of Rs.21 lakh from opposite party No.2 (respondent No.2) for her personal use on 08.03.2013. The complainant took a loan of Rs.16 lakh from Bank of Baroda for purchasing the vehicle. The vehicle was having a warranty for one year. During the warranty period, the horn and the music system stopped working properly. After running the vehicle for 8100 km. the clutch plate was damaged. The vehicle was taken to Narain Auto Service Centre (respondent No.3) but the defects could not be removed due to which the vehicle was taken to the service centre again and again. The employees of the service centre told the complainant that there was manufacturing defect in the vehicle due to which the clutch plate was giving problem again and again. On 15.11.2013, while the complainant was driving the vehicle, its clutch plate burnt resulting in hitting the side of the road and damage to the vehicle. On 18.11.2013, the complainant took the vehicle to Narain Service Centre. Due to repeated defects in the vehicle, it was proved that the vehicle was suffering from manufacturing defect. The complainant was a business woman and due to repeated defects in her vehicle, her business activities were badly affected. The complainant suffered physical and mental harassment due to defective vehicle. Alleging deficiency in service on the part of the opposite parties, the complainant filed the consumer complaint with the State Commission.
Opposite parties 1 to 3 filed their separate written statements. Opposite party No.1 stated that it was the manufacturer of the vehicle and sold the vehicle to opposite party No.2 for onward sale. The complainant purchased the vehicle from opposite party No.2 and there was no privity of contract between the complainant and opposite party No.1. The complaint qua opposite party No.1 was not maintainable. There is no evidence to prove that there was any manufacturing defect in the vehicle. The problem of horn and the music system were rectified during the warranty period. The complainant made complaint about the clutch plate for the first time on 28.04.2013 when the vehicle had already run for 8315 kms. The second complaint about the clutch plate was made on 19.11.2013, by which time the vehicle had run for 33393 kms. The clutch problem, if any, was due to wrong driving of the vehicle. The complainant had purchased the vehicle for commercial purpose. Therefore, she was not a consumer.
Opposite party No.2 contested the complaint stating that it was a registered seller of opposite party No.1. Whenever the complainant visited opposite party No.2, it rectified the problem in the vehicle. The complaint alleged that there was manufacturing defect in the vehicle. In the complaint it is alleged that opposite parties 1 & 2 were aware of the manufacturing defects in the vehicle, still they sold the defective vehicle to the complainant. If there was manufacturing defect in the vehicle, the complainant ought to have approached opposite party No.1, which he did not do. In the complaint, there is no specific allegation against opposite party No.2. Therefore, the complaint qua opposite party No.2 is not maintainable.
Opposite party No.3 contested the complaint stating that the vehicle was purchased for commercial purpose. The allegation regarding problem in the horn is correct but the allegation of problem in the music system is not correct. The problem of horn was rectified to the satisfaction of the complainant. As the vehicle was not driven properly, its clutch plate was damaged after running 33393 kms. Since the vehicle was still in the warranty period, opposite party No.3 repaired the vehicle to the full satisfaction of the complainant free of cost. The complainant has not sought any relief against opposite party No.3. Therefore, the complaint against opposite party No.3 is liable to be dismissed.
The State Commission, vide impugned order dated 20.12.2016 dismissed the complaint. Hence, the complainant has filed the present appeal before this Commission.
Counsel for the appellant submitted that the State Commission erred in holding that the complainant failed to establish that there was manufacturing defect in the vehicle. The vehicle started giving problem in the clutch system, which was repaired by opposite party No.3 free of charge under warranty. The defect in the clutch during warranty period itself constituted that there was manufacturing defect in the clutch system. The vehicle was taken to the service centre on multiple occasions due to defective clutch, though the same was repaired free of charge. The State Commission ignored the documentary evidence available on record and recorded erroneous findings contrary to the record. Further, to substantiate the manufacturing defect, the appellant also filed expert report dated 11.08.2014 issued by Unitrak Testing Equipment and Tool. However, the State Commission failed to consider the said expert report. The opposite parties also did not object to the expert report filed by the complainant. Learned counsel stressed on the argument that as per provisions of Consumer Protection Act, it was the duty of the State Commission to obtain an expert report on the expenses of the complainant. Learned counsel relied upon the judgment of Supreme Court in M/s National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy & Anr. (2012) 2 SCC 506; Jose Philip Mampillil vs. Premier Automobiles Ltd. & Anr. (2004) 2 SCC 278; and judgment of this Commission in Tata Motors vs. Rajesh Tyagi & Anr. (2014) 1 CPJ 132 (NC).
Counsel for respondent No.1 submitted that the appellant approached opposite party No.3 with the complaint in the horn and the music system, which were rectified to her satisfaction. The vehicle was purchased on 08.03.2013 and the complainant made complaint about the clutch plate for the first time on 28.04.2013 when the vehicle had already run for 8315 kms. The second complaint about the clutch plate was made on 19.11.2013, by which time the vehicle had run for 33393 kms. The allegation of manufacturing defect is totally untenable. The complainant purchased the vehicle for commercial purpose. Therefore, the complaint was not maintainable. The State Commission was fully justified in dismissing the complaint and the present appeal is also liable to be dismissed.
The purchase of vehicle and the warranty period are admitted by the parties. It is also not disputed by the complainant that the vehicle was taken to the service centre for the first time with the clutch problem when it had already run for 8315 kms. It is very difficult, rather impossible to run a vehicle for 8315 kms. with a defective clutch system. Opposite party No.3 repaired the clutch system. After repair, the problem in the clutch system occurred after running the vehicle for 33393 kms, meaning thereby the complainant had driven the vehicle for 25078 kms. after repairing the clutch system. It is impossible to assume that a vehicle can be driven for 25078 kms. with defective clutch system. Least which could be expected from the opposite parties was to repair the clutch system, which was done by them and after repair the complainant had driven the vehicle for 33393 kms. So far as the allegation that it was the duty of the State Commission to obtain an expert report is concerned, the appellant has not shown any provision under the Consumer Protection Act, 1986 which mandates the Consumer Commission to obtain an expert report. As far as expert report submitted by the complainant is concerned, the State Commission has rightly rejected the same on the ground that only a photocopy of the certificate has been filed, which did not have any evidentiary value. Even before this Commission, the complainant has not produced the expert report to show that there was manufacturing defect in the vehicle. So far as judgment relied upon by the counsel for the appellant in National Seeds Corporation Ltd. (supra) is concerned, this judgment is distinguishable on facts as in that case the farmers sustained loss due to defective seeds. So far as judgment in Jose Philip Mampillil (supra) is concerned, in that case it was established that the car was defective at the time of delivery. In the present case, the complaint in the clutch system was made after running the vehicle for 8315 kms. and second time after 33393 kms. which abundantly shows that there was no manufacturing defect in the vehicle. As far as judgment of this Commission in Tata Motors (supra) is concerned, in that case authorised service centre of the Tata Motors certified that there was manufacturing defect in the body-shell of the car which could not be rectified. In the present case, the appellant has not led any evidence to show that there was manufacturing defect in the car. As far as question of maintainability is concerned, although it is admitted that the complainant was working as Managing Partner of M/s Prince Steels and the car was shown as an asset of the firm in the books of accounts, but the law is well settled that if the vehicle is not engaged in commercial activity and is personally used, then the complainant using the vehicle is a consumer. Therefore, the complaint before the State Commission was maintainable.
ORDER
For the foregoing discussion, the appeal has no merit and the same is dismissed.