Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment in Suit No.
409 of 2011
MHCC010035152018
Presented on : 13032018
Registered on : 16072018
Decided on : 05012023
Duration : 4 Y, 9 M, 23 D
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SHORT CAUSE SUIT NO.409 OF 2021.
The Hindusthan Cooperative Bank Ltd. ]
Having its Head Office address at 4 A ]
Devi Galli, Baburoa Bobde Marg, ]
Lokhand Bazar, Mumbai 400 009. ]
and also having its office at Plot No.11 ]
Sector 08, Near MGM Hospital, ]
Kalaboli, Taluka – Panvel, ]
District – Raigad. ] .... Plaintiff.
V/s
1.M/s. Mahindra & Mahindra Ltd. ]
Having address at Mahindra Tower, ]
G.M.Bhosale Marg, Worli, Mumbai – 400 018. ]
and also Gateway Building, ]
Appollo Bunder, Mumbai – 400 001. ]
2.M/s Global Gallerie. ]
(A Division of GMV Agencies Ltd) ]
Authorized dealer of Mahindra & Mahindra Ltd., ]
Having address at Khush Mahal, Plot No.22/23 ]
Sector 6A, Kamothe, Panvel, Dist – Raigad.. ]
and also near Goa turning, Palaspa Phata, ]
Tal Panvel, Dist. Raigad – 410 221. ]
AND ]
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Judgment in Suit No.
409 of 2011
At Post.: Paras Commercial Center Pvt.Ltd. ]
Paras Complex, Survey No.72 of Kolkle Village, ]
Opp Patil Farm House, Mumbai Goa Road, ]
Kolhe Village, Panvel, Dist. Raigad 410 220. ] ….Defendants.
Appearance:
Adv. M.M.Khan h/f Adv. Vishal Ghosalkar, for the plaintiff.
Defendants Exparte.
SUIT FOR DECLARATION AND RECOVERY OF MONEY
Coram : His Honour Judge
Shri. S. B. Pawar.
CR No. : 59.
Date :05th January, 2023.
ORAL JUDGMENT
This is a suit for declaration, for recovery of cost of the
vehicle/replacement of vehicle and in alternative for refund of repair
charges.
Brief facts of the case are as under:
2. Plaintiff is a Cooperative Bank registered under the
Maharashtra Cooperative Societies Act. Defendant No.1 is a
manufacturer of vehicles. Defendant No.2 is authorized dealer and
distributor of vehicles manufactured by defendant No.1. Plaintiff
purchased a vehicle, Scorpio S 10 2.2 HAWK MH 2 WD MT 7 S from
defendant No.2 for total sum of Rs.14,20,000/ and paid full purchase
price by issuing cheque dated 06.02.2015. The vehicle is registered as
MH 46 AL 3909. After first service, on 05.05.2015 the vehicle suddenly
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409 of 2011
broke down on NH No.04, Near Anewadi Toll Naka, District Satara. It
was taken to ‘Sahyadri Service Centre’ of defendant No.1 at Satara, at
plaintiff's expenses and clutch plate was replaced by new clutch plate.
Thereafter, even after replacement of the clutch plate, the vehicle met
with frequently break downs on several occasions and was required to
be taken to the service station. However, defendants could not rectify
the defect.
3. It is further the case of the plaintiff that it issued legal
notice to defendants on 25.01.2016. Defendant No.2 replied notice and
denied the allegations. Defendant No.1 did not take any initiative to
resolve the query raised by the plaintiff. The plaintiff suffered great loss
due to manufacturing defect in the vehicle. The problem in the vehicle
still persists and defendants ignored to find out root cause of the defect.
The vehicle is not roadworthy. Defendants ought to have replaced the
vehicle with new one. But they are avoiding the liability. The plaintiff
had filed Consumer Complaint No. 941 of 2016, but it was dismissed by
holding that plaintiff does not fall within the definition of consumer.
Plaintiff has spent an amount of Rs.1,90,216.29/ on repairs of the
vehicles. Thus, the plaintiff prayed for declaration that the vehicle is
defective and not roadworthy, for replacement of vehicle/refund of
amount of Rs.14,20,000/ being cost of the vehicle at the rate of 18%
p.a. and for refund of an amount of Rs.1,90,216.29/ as the cost of the
repairs, with the interest at the rate of 18% p.a.
4. Defendants were duly served with the Writ of Summons,
but they did not appear in the suit. Therefore, the suit proceeded
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409 of 2011
exparte against the defendants.
5. In view of the pleadings in the plaint, following points arise
for my determination to which I record my findings for the reasons
discussed below.:
Sr. No. POINTS FINDINGS
1. Whether plaintiff proves that
there is manufacturing defect in
the vehicle and therefore, it is
not roadworthy?
..No..
2. Whether plaintiff is entitled for
relief of replacement of the ve
hicle or refund of its price
Rs.14,20,000/?
..No..
3. Whether plaintiff is entitled for
refund of an amount of
Rs.1,90,216/ towards repair
charges?
..No..
4. What order and decree? Suit is dismissed.
:REASONS:
AS TO POINT NOS. 1 to 4:
6. Heard Ld. Adv M. M. Khan h/f Adv Vishal Ghosalkar for
plaintiff. In order to substantiate the suit claim, P.W.1 Sunil
Patwardhan filed his evidence affidavit at Exh.5 on the basis of
authority letter at Exh.7. The documentary evidence adduced by the
plaintiff is proved in the evidence of this witness.
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7. So far as the jurisdictional aspect is concerned, the plaintiff
has annexed the copy of order dated 02.03.2017 in Consumer
Complaint No.CC/16/941 filed by plaintiff against the defendants. On
perusal, the said order shows that the State Consumer Disputes on
Redressal Commission, Maharashtra, Mumbai recorded finding that the
vehicle was purchased for business i.e. for commercial purpose and
therefore, complainant does not fall within the definition of 'consumer'
in Section 2(i)(d) of the Consumer Protection Act, 1986 and therefore,
complaint was not tenable. In the light of the above finding, it must be
held that civil Court has jurisdiction to try and entertain the present
suit, though special machinery is provided in the Consumer Protection
Act to deal with the issues under said Act.
8. The document at Exh.8 is receipt issued by defendant No.2
regarding the payment of Rs.14,20,000/ received from plaintiff for the
purchase of the subject vehicle. The copy of tax invoice is also annexed
to the receipt. These documents show that plaintiff purchased the
subject vehicle from defendant No.2 in February 2015. It is apparent
that defendant No.1 is the manufacturer of the subject vehicle.
9. It is the case of the plaintiff that the vehicle met with
frequent break downs, and therefore, he has incurred great loss and
expenses. Plaintiff relied upon the tax invoices and bills at Exh.
13(colly), 14(colly), 15(colly), 16, 17 (colly), 18, 19 and 20(colly) in
support of the contention that the vehicle suffers from manufacturing
defect. I have minutely perused all the tax invoices and bills relied upon
the by plaintiff. Perusal of the tax invoices show that plaintiff has
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409 of 2011
included the tax invoices even in respect of free services, paid services,
Tyre replacement, miscellaneous bills., etc. The bills during pendency of
the suit are also relied upon by the plaintiff. The suit is lodged on
13.03.2018. However, certain bills in Exh.15, bills in Exh.16 to 21 are
for the period during pendency of the suit.
10. The issue as to whether the subject vehicle suffers from any
manufacturing defect or is defective is a technical issue, in a sense that
only an expert in the field such a mechanical Engineer can opine in that
regard. PW.1 is not an expert in the field. Nor the Court can have
expertise in the said field. The burden is necessarily upon the plaintiff to
lead cogent and satisfactorily evidence to prove the fact that the subject
vehicle is defective and the proof of the said fact can not be dispensed
with, because the suit is exparte. In this background, in my view, in
order to record a conclusive finding that the subject vehicle suffers from
any manufacturing defect, the evidence of expert in that field is a must.
Neither any expert witness is examined by the plaintiff nor any
document/certificate, issued by any such expert person is produced on
record by the plaintiff. Therefore, merely by relying upon the oral
evidence of PW1, this Court cannot record the definite finding that
there is any manufacturing defect in the subject vehicle.
11. It may further be noted that the pleading and oral evidence
of the plaintiff regarding the alleged manufacturing defect in the subject
vehicle is vague. The plaintiff could not locate the exact manufacturing
defect in the subject vehicle either in the pleading or in the oral
evidence of PW1. The pleading indicates that after first free service,
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409 of 2011
the clutch plate of the subject vehicle was required to be replaced by
new clutch place and thereafter also on several occasions the plaintiff
was required to replace the clutch plate after the vehicle met with
sudden break downs. The bills produced by the plaintiff also indicate
that plaintiff has changed the clutch place/clutch assembly on
08.05.2015, 23.07.2015, 10.04.2017 and 28.10.2017. However, it is
apparent that the subject vehicle is still in use and by relying only upon
those bills, it cannot be said that there was any defect in the subject
vehicle, which can be termed as a manufacturing defect. The other bills
which are in respect of the scheduled services and replacement of the
parts due to usual wear and tear, out of the use of the subject vehicle
are not helpful to decide the present claim and cannot be accepted as
the repairs required to be carried out due to defect in the vehicle. The
plaintiff has even not brought on record the warrantee conditions of the
vehicle.
12. Ld. advocate for the plaintiff relied upon the Judgment of
the Hon'ble Supreme Court in Rajiv Shukla V/s. Gold Rush Sales and
Services Limited and Another (2022) 9 SCC 31, in support of his
submissions. In the said authority, the Demo Test Drive Vehicle was
supplied to the complainant as new car and in the said facts it is held
that not to deliver the new car despite full sale consideration being paid
or to deliver the defective car can be said as ‘unfair trade practice’. In
the present case, it is not the case of the plaintiff that the new vehicle
was not supplied by defendant No.2 to the plaintiff. There is no cogent
and satisfactory evidence to establish that subject vehicle is defective.
Therefore, the above authority is not helpful to the plaintiff. The
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409 of 2011
plaintiff has failed to prove that the vehicle is defective or there is any
manufacturing defect in the subject vehicle. Therefore, plaintiff is not
entitled to any of the reliefs claimed in the suit and the suit deserves to
be dismissed. Resultantly, point Nos.1 to 3 are answered in the negative
and following order is passed :
ORDER
1. Suit No.409 of 2011 is dismissed with costs.
3. Decree be drawn up accordingly.
4. Suit No.409 of 2011 is disposed off.
(S.B. Pawar)
Judge,
City Civil and Sessions Court
Date.:05.01.2023 Greater Bombay (CR 59)
Declared on : 05.01.2023
Dictated on : 05.01.2023.
Transcribed on : 06.01.2023
Checked on : 07.01.2023
Signed on : 09.01.2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
10.12.2022 at 1.30 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 05.01.2023
Order signed by P.O. on 09.01.2023
order uploaded on 10.01.2023
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