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Judgment
The present revision petition has been filed against the judgment dated 24th March 2017 of the Jharkhand State Consumer Disputes Redressal Commission, Ranchi ('the State Commission') in First Appeal no. 95 of 2015.
The brief facts of the case as per the petitioner/ complainant was that the petitioner purchased the vehicle in question from respondent no. 5/ OP no.5, i.e., Nissan Dealer, Dhanbad, Jharkhand, on 03.7.2013. From the very beginning the said vehicle emitted 'Black smoke' and never gave mileage of more than 12-13 kms per litre, whereas, the advertised mileage was 21.64 kms per litre. The petitioner made a complaint to the dealer who advised that after the first service (after 1000 kms) the said problem would be rectified. Accordingly, the petitioner handed over the vehicle to the dealer in July - August 2013. On 01.09.2013 and on 02.09.2013, but the dealer failed to rectify the defects. The petitioner made several correspondence in this regard but nothing was done. Hence, the petitioner filed a consumer complaint before the District Forum praying for the following reliefs:
(i) Rs.10,46,455/- being the value of the car including price, tax and insurance which may be kindly be ordered to be returned after taking back the defective car;
(ii) Rs.5,00,000/- for mental harassment and loss of time and peace;
(iii) Interest at the rate of 18% per annum since the date of payment till the date of refund; and
(iv) Cost of case.
In spite of notice, respondent no.5/ OP no. 5 the dealer did not appear, however, the District Consumer Disputes Redressal Forum, Giridh ('the District Forum') while declaring them ex parte held that no case was made out against the dealer.
Respondent nos. 1 to 4 denied the allegations. They further stated that the vehicle in question was duly rectified by respondent no. 5the dealer on 02.09.2013 and thereafter no problem was reported by the petitioner and as such there was no cause of action to file the complaint. There was no manufacturing defect as alleged. The petitioner had been using the vehicle and it covered thousands of kms. The present complaint has been filed for the obvious purpose of making a wrongful gain as he has not prayed for repair of his car or for replacement of parts but made a demand for Rs.10,46,455/- plus Rs.5,00,000/- with interest of 18% per annum.
The District Consumer Disputes Redressal Forum, Giridh ('the District Forum') vide its order dated 20.05.2015 while allowing the complaint observed as under:
"The opposite party nos. 1 to 4 Nissan Motors India Private Limited and OP no. 5 are hereby directed to replace the new Nissan Sunny XV Spl. D 1 Car of similar description free from any defect to the house of complainant though OP no. 5 in lieu of Motor car sold to the complainant within 60 days from the receipt of this order. The said car lying in the garage of the complainant be taken back by Nissan Motors India Pvt. Ltd., at their own expenses. While giving the delivery of the replaced motor car to the complainant the amount of Rs.10,46,455/- lying with OP no. 5 be adjusted towards the price of new replaced Motor Vehicle. If Nissan Motors India Pvt. Ltd., fails to replace the new car to the complainant within the given time, the amount of Rs.10,46,455/- shall carry interest at the rate of 18% per annum from 04.07.2013 till the replacement of New Nissan Sunny Xl Spl. D1 Car.
The opposite party no. 1 to 5 are directed to adjust the amount of Rs.10,46,455/- towards the price of the replaced new Car including accessories, road tax and insurance premium to the complainant. We make it also clear here, that the price of the car given in replacement of the defective car supplied earlier will be the same prevailing on 03.07.2013 and if the opposite parties feel any difficulty in replacement of the said car with all amenities as stated above, then in that case they may make payment of Rs.10,46,455/- to the complainant through account payee cheque.
Under the facts and circumstances no order as to compensation and cost towards litigation.
In the result, the case of the complainant is allowed partly."
Aggrieved by the order of the District Forum, the respondent nos. 1 to 3/ OP nos. 1 to 3 filed an appeal before the State Commission. The State Commission while allowing the appeal and dismissing the complaint observed as under:
"11. The complainant and the District Forum has mainly relied on exhibit no. 6 which reads as follows :
Dear Sir,
From the date of delivery of the vehicle at customer premise customer complained about black smoke. Customer came to our workshop 3 to 4 times. Every time, he complained about same things. We performed the following work on the vehicle.
Injector calibration
ECM Black smoke update
Air filter clean.
After every service the problem keeps come back. This time, we rectified the black smoke complain with the above mentioned process".
There is no allegation in the complaint petition that after the dealer rectified the defect of Black smoke on 02.09.2013 any complaint was made by the complainant till the filing of the complaint of 19.12.2013.
It was argued that several complaints were made after 02.09.2013 but it appears that those were made after filing of the complaint and therefore, are not irrelevant for deciding this case.
Further, the said Exhibit 6 heavily relied on behalf of the complainant, does not show that there was any complaint about the low mileage.
Thus, it has to be held that the complainant could not prove that there was manufacturing defect in the vehicle or there was any deficiency in service on the part of the manufacturer and the dealer. Further, in the present case expert opinion was necessary for holding that there was manufacturing defect in the vehicle.
After hearing the parties at length and carefully perusing the records, we find no merit in this appeal. Accordingly, the complaint petition is dismissed, the impugned order is set aside, and the appeal is allowed."
Hence, the present revision petition.
I have heard the learned counsel for the petitioner Mr Sanjay Kumar. He contended that the vehicle was emitting black smoke and hence, there was manufacturing defect which could not be rectified by the OPs. He stated that the State Commission had failed to appreciate the importance of the letter dated 02.09.213 from M/s Animesh Nissan which reads as under:
"Dear Sir,
From the date of delivery of the vehicle at Customer Premise, customer complained about black smoke. Customer came to our workshop 3 to 4 times. Every time he complained about same things. We performed the following work on the vehicle;
Injector Calibration
ECM Black smoke update
Air Filter clean.
After every service, the problem keeps come be this time we rectified the black smoke complain to the above mentioned process".
He further contended that the OPs had given an application for getting the vehicle examined by an expert. However, the State Commission did not allow the same. He admitted that no such application had been given by the petitioner/ complainant to support his contention that the said vehicle had a manufacturing defect.
I have gone through the record. The complaint filed by the petitioner is very sketchy and vague and it does not give details of any manufacturing defect in the vehicle except that it gives black smoke and mileage of about 13 kms per litre. Admittedly the vehicle was taken to the workshop only on two dates i.e., 01.09.2013 and 02.09.2013. As per the letter dated 02.09.2013 the said defect of black smoke was rectified by injector calibration and cleaning of air filter as also ECM Black smoke update. As is seen from the cross examination of the complainant, as on 28.11.2014 the vehicle had already run 7000 kms. The petitioner has admitted that he has not filed any documents which reflect the report of any mechanic that the vehicle emits black smoke more than the normal. He had obtained a certificate from the Pollution Authority and the Pollution Authority had not raised any objection with regard to any kind of defects in the vehicle including the said 'black smoke'. Further, the petitioner has failed to place on record any job cards regarding the free service given to him as also for the visits for getting the vehicle repaired. He has also failed to place on record any expert opinion regarding the alleged manufacturing defect in his vehicle.
In view of the discussion above, I find no jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of powers under section 21 (b) of the Consumer Protection Act, 1986. Revision petition is, dismissed as also the complaint is dismissed.