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Judgment
This appeal has been filed by the appellant Mr. Ramesh against the order dated 04.04.2014 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission') passed in Complaint Case No.14/2012, wherein the complaint filed by the complainant has been dismissed.
Heard the learned counsel for the parties except for respondent No.2 as the same has been proceeded ex-parte vide order dated 27.09.2016.
Learned counsel for the appellant stated that the State Commission has not considered the very fact that the vehicle was taken to workshop frequently right from the date of purchase. Different components of the vehicle gave trouble at different times and the vehicle was taken to workshop for removing those defects and for replacement of those components. The vehicle broke down twice on the road and it was towed to the workshop and then repaired at the workshop Europa Auto Pune. The vehicle remained with opposite parties for 90 days for repairs. Thus, the vehicle suffered from manufacturing defect. However, the State Commission has not found any manufacturing defect in the vehicle and dismissed the complaint. Learned counsel for the appellant further argued that the State Commission on the one hand has accepted that there were many defects in the car, but has finally dismissed the complaint. The learned counsel pointed out towards the following observations of the State Commission:-
"14. The undisputed facts are that, during the warranty period i.e. 30.7.2010 the 'Mechtronics with software' of the vehicle was replaced through opponent No.2. Thereafter in the month of May 2011 the battery was required to be replaced and it is replaced by opponent No.3. It is also not disputed that during the warranty period 7-8 times the vehicle was taken to the service centre of opponent No.3 and rendered the services as shown in the job cards. It is an admitted fact that twice the vehicle was required to be taken to the service centre to the opponent No.2 by towing."
It was emphasized by the leaned counsel for the appellant that in a costly car whose operation is mainly governed by computerised system and software, the system of software could not get corrupted in such a short time. The fact is that the vehicle's 'Mechatronics with software' was replaced on 30.07.2010. Thus, within a span of seven months, the major system which controls the operation of the vehicle was required to be changed. This clearly speaks of the fact that the vehicle had manufacturing defect and no further expert report is required to prove manufacturing defect. Learned counsel stated that now the vehicle has been sold in the year 2017, but the appeal had been filed to allow compensation for mental agony and harassment and financial loss suffered by the complainant during eight years when the vehicle remained with the complainant. The complainant is entitled to get compensation even if there were many defects which may not be called manufacturing defect, but created problem in smooth running of the vehicle. To support his argument, learned counsel referred to the decision of this Commission in M/s. SAS Motors Ltd., Vs. Anant Haridas Choudhari, RP No.2814 of 2011, decided on 24.07.2013. (NC).
On the other hand, learned counsel for the respondent No.1 stated that the State Commission has considered all the points raised in the complaint and has given conclusion that there was no manufacturing defect in the vehicle. The State Commission has clearly observed the following:
"17. Considering the undisputed fact that after replacement of the 'Mechatronics with software' of the car in the month of July, 2010 the complainant received the delivery of the car, and still the car is in use of the complainant, we find much force in the submission of Mr. Bhavar, learned counsel for the opponent No.1. If really there was manufacturing defect in the car it would not have possible for complainant to use the car even after replacement of its part i.e. "Mechatronics with software'. Even the complainant has not assigned any reasons as to why original 'Machatronics with software' of the car was damaged. On the contrary, it is the contention of the opponent No.1 that it might have damaged due to wrong handling of the car. However, it has replaced the same part as it was required to be replaced during the warranty period. When it is the specific contention of the opponent No.1 that it was due to wrong handling of the car by the complainant, it was necessary for the complainant to verify the same by getting the car inspected through authorized mechanical engineer. But no such pains are taken by the complainant. Therefore in the absence of any expert evidence the bare contention of the complainant that there is manufacturing defect in the car cannot be accepted.
Learned counsel argued that from the above, it is clear that 'Mechatronics with software' did not fail due to any negligence of the opposite parties. Learned counsel further stated that after the replacement of ''Mechatronics with software' with software' and other repairs, the complainant has given a certificate that he has tested the car on road and has found totally satisfactory. In this regard, learned counsel drew my attention to the following observation of the State Commission:-
"14...........Further it is also an admitted fact that on 29.07.2012 i.e. after expiry of warranty period the vehicle was taken to the service centre of opponent No.3 and opponent No.3 rendered the service by repairing the vehicle and the complainant issued certificate to the effect that he taken the road test of the car and now the car is in good condition and performing to his entire satisfaction etc."
It was contended by the learned counsel for the respondent No.1 that the vehicle had run about 84000 km. when the order of the State Commission was passed. It clearly means that the vehicle did not have any manufacturing defects otherwise the vehicle could not have run this much mileage.
Learned counsel for the respondent No.1 further argued that the complainant has already sold the vehicle in the year 2017 during the pendency of this appeal and therefore, the appellant/complainant is not a 'consumer' as the vehicle has been sold without notice of this Commission and without any permission to sell. In support of his contention, learned counsel referred to following judgments:-
(1) Tata Motors Ltd. & anr. Vs. Hazoor Maharaj Baba Des Rajji Chela Baba Dewa Singhji (Radha Swami), 2013 SCC ONLine NCDRC 883. It has been held that:
"15. In the light of above observations, we find that as complainant did not remain consumer after sale of vehicle and he has sold the vehicle without permission of the District Forum and has suppressed this fact and has not approached the courts with clean hands, complaint is liable to be dismissed and revision petition is to be allowed." .
(2) M/s. Honda Cars India Ltd. Vs. Jatinder Singh Manda, 2013 SCC ONLIne NCDRC 934. It has been held that:-
"6. We have held in R.P. No. 2562 of 2012 Tata Motors Ltd. & Anr. Vs. Hazoor Maharaj Baba Des Rajji Chela Baba Dewa Singhji (Radha Swami) & Anr. decided on 25.09.2013 that once vehicle is sold during pendency of the complaint, complainant does not remain consumer for the purposes of Consumer Protection Act. In that judgment, we have placed reliance on I (2008) CPJ 249 (NC) Hoshiarpur Improvement Trust Vs. Major Amrit Lal Saini and judgement dated 23.4.2013 passed by this Commission in Appeal No. 466 of 2008 Mr. Rajiv Gulati Vs. Authorised Signatory M/s. Tata Engineering & Locomotive Co. Ltd. & Ors. In this case, as vehicle has been sold by complainant during pendency of appeal which was filed in the year 2007 and decided in the year 2012, complainant ceases to be a consumer under C.P. Act and complaint is liable to be dismissed. Had Respondent No. 1 brought this fact to the notice of State Commission learned State Commission would not have directed petitioner to replace the steering wheel and gear box assembly and other connected parts because Respondent no. 1 was not possessing vehicle at the time of passing the judgement.
(3) M/s. General Motros India Pvt. Ltd. Vs. A. Jayakrishnan @ Animon & 2 Ors. 2015 SCC OnLine NCDRC 3286. It has been held that:-
"Learned counsel for the parties present. Arguments heard.
It has now transpired that the consumer/petitioner/A. Jayakrishnan @ Animon has sold the car in the year 2014. Consequently, he is no more a consumer. The case of the petitioner is not maintainable.
Therefore, we set aside the orders passed by fora below and dismiss the complaint. However, liberty is given to the petitioner to approach the civil court for redressal of his grievances, as per law.
The revision petition stands disposed of."
Learned counsel for respondent No.3 stated that the learned counsel for the complainant has wrongly mentioned that the vehicle remained with respondent No.3, M/s. Sara Motors Pvt. Ltd. for 90 days. In fact, the vehicle remained with Europa Auto Pune for 90 days and they are not represented in the present case. Hence, this fact cannot be taken into consideration. He further stated that no deficiency has been alleged against respondent No.3
I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. The first question is to be considered whether the appellant/complainant is a 'consumer' when he has sold his vehicle during the pendency of the appeal in the year 2017. It is all the more surprising that the complainant has not taken any permission from this Commission before selling the vehicle, neither he informed this Commission after the sale. The learned counsel for the complainant was asked during the arguments whether he has to file any judgments of this Commission or of Hon'ble Supreme Court, which will prove that the complainant is still a 'consumer'. Learned counsel clearly replied that he does not have any judgment to file in this regard and he has nothing to submit which can run counter to the judgments filed by the leaned counsel for the respondent No.1. Learned counsel for the complainant stated that the judgments filed by the respondent No.1 relate to complaint cases, whereas the present matter is of appeal and therefore, the judgments are not directly applicable in the present case. Original complaint was already dismissed by the State Commission vide its order dated 04.04.2014 and the present appeal has been filed against that order. Obviously, the appellant wanted that his complaint may be allowed in the appeal. The main prayers made in the complaint are that:
"A. Allow the complaint.
B. To direct the respondents to place on record the job cards pertaining the repairs/works carried out by them on the disputed vehicle, up-to-date as also notices and emails sent to it.
C. To hold and declare that the above car sold by the respondents to the complainant is having inherent manufacturing defects in it and it is not suitable to go on road and they be directed to provide replacement of the same."
Obviously, the State Commission has not found any manufacturing defect in the car and moreover the job cards mentioned mostly the replacement of various lights, bulbs, brake pads and different oils except for one replacement which is of ''Mechatronics with software'. As different parts, which were found defective have been replaced under warranty by the opposite parties, there seems to be no deficiency in service on the part of the opposite parties. It is true that there were certain defects in the car but the same were rectified when the defects were brought to the notice of the opposite parties. The vehicle was repaired and defective parts were changed as per the conditions of the warranty and the job cards do not reveal any major defect in the car. The vehicle cannot be got inspected now by any expert as the vehicle has already been sold to a third party.
Based on the above discussion, I find that the appellant/complainant now does not come under the definition of 'consumer' as given in the Consumer Protection Act, 1986. In concluding this, I have relied on the judgments of this Commission in Tata Motors Ltd. & anr. Vs. Hazoor Maharaj Baba Des Rajji Chela Baba Dewa Singhji (Radha Swami) (supra), M/s. Honda Cars India Ltd. Vs. Jatinder Singh Manda (supra) and M/s. General Motros India Pvt. Ltd. Vs. A. Jayakrishnan @ Animon & 2 Ors. (supra).
Even on merits, it is found that there were no major defects in the vehicle except for the 'Mechatronics with software', which was ultimately replaced by the opposite parties under warranty. Even this defect cannot be considered as a manufacturing defect because it was not there since the purchase of the car, rather it developed after the vehicle was driven for about six months.
On the basis of the aforesaid discussion, I do not find any merit in the appeal No.390 of 2014 and the same is dismissed.