State Consumer Disputes Redressal Commission
General Molors India (P) Ltd. vs Lalit Bhasin on 17 August, 2023
FA/358/2013 D.O.D. : 17.08.2023
GENERAL MOTORS INIDA PRIVATE LIMITED VS MR. LALIT BHASIN & ORS.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 25.03.2023
Date of hearing: 12.05.2023
Date of Decision: 17.08.2023
FIRST APPEAL NO.-358 /2013
IN THE MATTER OF
GENERAL MOTORS INDIA PRIVATE LIMITED,
PLOT NUMBER 15,
SECTOR 32, INSTITUTIONAL AREA,
GURGAON-122001.
(Through: Sanjay Kumar Singh, Advocate)
...Appellant
VERSUS
1. MR. LALIT BHASIN,
ADVOCATE AND SOLE PROPRIETOR OF BHASIN & CO.,
10TH FLOOR, DAKSHINESHWAR,
10 HAILEY ROAD,
NEW DELHI-110001.
(Through: Raj Gopal, Advocate)
....Respondent No.1
2. REGENT AUTOMOBILES LTD.,
B-1/H1, MOHAN COOPERATIVE,
INDUSTRIAL ESTATE, MATHURA ROAD,
NEW DELHI-110044.
3. BRITISH MOTOR CAR CO. (1934) LIMITED,
PRATAP BUILDING, N-BLOCK,
CANNAUGHT CIRCUS, NEW DELHI-110001.
...Performa Respondents
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FA/358/2013 D.O.D. : 17.08.2023
GENERAL MOTORS INIDA PRIVATE LIMITED VS MR. LALIT BHASIN & ORS.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Sanjay Kumar Singh, counsel for the Appellant.
Ms. Ananaya Marwah, counsel for the Respondent.
PER : HON'BLE JUSTICE SANGITA DHINGRA SEHGAL, PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are as under:
"The brief facts of the case are that the Complainant is an advocate enrolled in 1962. ThetOP-1 is a multi national company manufacturer of OPel Astra Club Car. The principal office of the OPs is at Halol, District Panch Mahal, Gujrat and marketing office at Palm Court, 20/4, Sukhraili Chowk, MehrauliGurgaron Road,Gurgaon. Earlier the name of O.P-1 was British Motor Car Company(1934) Ltd. The O.P-2 is the authorised dealer of O.P-1. The Complainant purchased a new car Opel Astral Club1.6 (petrol) from the O.P.-2, the dealer of O.P-1 for Rs. 8,05,578/-. It is stated that within one month of purchase i.e. on 11.7.2000, the Complainant witnessed certain manufacturing defects related to engine such as over race, excess A/C cooling etc. At that time the car was traversed only 578 kms. On 25.7.2000, the car was sent to the dealer for removal of certain defects but the service provided by the dealer was not satisfactory. Hence, the car was sent again on 28.7.2000 and on 4.11.2000, to the dealer for correction of manufacturing defects which led to continuous physical and mental hardship to the Complainant. Only after few days, the Complainant again witnessed certain defects related to over heating to the PARTLY ALLOWED PAGE 2 OF 13 FA/358/2013 D.O.D. : 17.08.2023 GENERAL MOTORS INIDA PRIVATE LIMITED VS MR. LALIT BHASIN & ORS.
car/engine. All these problems occurred in the guarantee period. Again on 3.6.03 and 23.9.03, the car was sent for recurring defects. The Compressor of the car was replaced. Again on 22.1.2004, the car was sent for servicing and rectification of the defects relating to overheating leakage of oil and frost control etc. The Complainant was assured that all necessary rectifications have been carried out. On the assurance, the Complainant paid a sum of Rs. 4,798/- but next day i.e on 23.01.04 it was found that the car was getting over heated and fumes were seen coming out from the bonnet. The car had to be stopped and Complainant suffered undue harassment. Next day morning, the Complainant contacted the staff of the dealer who realised his negligence and deficiency in services and came to the Complainant's place to see the condition of the car. He was convinced that the car was having some problems. He took the car with him and assured the Complainant that he will bring the car back putting the same in order by 4.00 p.m. It was sent back and an amount of Rs. 1729 was charged which was unjustified.
The Complainant had sent letter dated 24.1.04 to the dealer for their negligence and deficiency in service. On 15.9.04, 10.2.04 and 13.12.04, the car was sent for rectification of the recurring defects Again on 2.4.05 and 4.4.05 it was sent for correction of the defects. Each time the dealer has charged undue amount from the Complainant. On 4.6.05 and 5.10.05, the car was again sent for certain recurring defects. The A/C fan and other parts were replaced by the dealer. Again on 10.5.06, 4.9.06 and 26.12.06, the car was sent for rectification of repeated defects. The Complainant sent letter dated 27.07.07 to the O.P-2 highlighting the deficiency in service and claimed a compensation of Rs. 50,000/- for harassment, trouble and hardship caused to the Complainant.
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Further, on 6.8.07, the complainant sent reminder but no response was received from O.P-2. Again on 14.9.07, 15.9.07 and 26.12.2007, the car was sent for rectification for recurring defects. Each time the O.P was unable to locate the cause of the problem in question. It is stated that the Complainant was unable to use the said car for the last 3-4 months due to persistent defects and as such the Complainant was deprived of his rightful use of the car. Therefore, the complainant sent another letter dated 14.6.08 to O.P-2 explaining his dissatisfaction but no reply was received. After being fed up with the repeated correspondence, the complainant wrote letter dated 4.8.08 to Automobiles Association of Upper India, a Pioneer Association engaged in development and management of automobiles expertise regarding inspection of vehicle. The vehicle was duly inspected by Association and submitted its report on 26.8.08. In the report, it is established that the vehicle has been suffering from inherent manufacturing defects. Thus, the Complainant had paid to the OPs for defective car and negligent services provided by them. The Complainant referred the following case laws in support of his case:
1) Jagrut Nagrik & Anr. Vs. East Africa Toyota & Anr. IV (2008) C.P.J. 116(N.C.)
2) Nachiket P. Shirgaonkar Vs. Pandit Automotive Ltd. & Anr. II (2008)C.P.J.308(N.C.) The Complainant prayed this Forum to direct the OPs :-
a) to pay a sum of Rs. 8,05,576/- to the Complainant towards the price of the car along with the interest @ 10% p.a from the date of cause of action till realization or replace the old car with new one of the same model.
b) To pay a sum of Rs.3,07,630/- amount incurred on repair.
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c) To pay Rs. 5.00 lacs for loss incurred by the Complainant by not attending the meetings etc.
d) To pay Rs. 20,000/- for loss on hiring alternative transportation
e) To pay Rs. 5.00 lacs for compensation for physical and mental agony.
f) To pay Rs. 50,000/- cost of litigation The instant complaint was originally filed before the Hon'ble State Commission which was transferred to this Forum for disposal. On receipt of the complaint, the notices Were issued to the OPs (O.P-1 & 2) who appeared and filed their Written Statement refuting the claim. During the pendency of the complaint, the Complainant filed an application for impleadment of British Motor Car Company (1934) Ltd as O.P-3. The proposed O.P filed its reply against this application. The application along with reply was heard and allowed by this Forum. As such, the proposed British Motor Car Company (1934) Ltd. was impleaded as O.P-3. The O.P-3 did not file Written Statement but the Ld. Counsel on its behalf remained present during the proceedings.
During the proceedings, the Complainant filed one more application requesting for the report of reputed Automobiles Expert Committee/Association to be obtained. The application was heard and allowed by this Forum. Accordingly, the report of Automobiles Association of Upper India Ltd. was obtained and the same was taken on record."
2. The District Forum after taking into consideration the material available on record passed the order dated 26.02.2013, whereby it held as under:
"We have heard the arguments of both the parties and gone through the material on record carefully. We first take up and decide the issue raised on behalf of the OPs with regard to the maintainability of the complaint. The Ld. counsel for O.P-2 PARTLY ALLOWED PAGE 5 OF 13 FA/358/2013 D.O.D. : 17.08.2023 GENERAL MOTORS INIDA PRIVATE LIMITED VS MR. LALIT BHASIN & ORS.
emphatically raised the issue of limitation stating that the vehicle in question was purchased in the year 2000 whereas the complaint was filed in the year 2008 which is highly time barred. The Ld. Counsel referred the case law of M/s General Motor India Pvt. Ltd. V/s Maj Gen. (Retd.) B.S. Suhaf & Anr. R.P.No. 1560/2009 N.C.D.R.C. in support of his contention.
On going through the record, we find that the vehicle started giving trouble soon after the purchase of the same and these recurring problems continued upto the year 2008. As such, the cause of action continued to arise upto the date of last repair/problem arose in the vehicle. We have also gone through the case law referred by Ld. Counsel and find that the same is not applicable in the instant complaint. We therefore held that the complaint is not barred by limitation. Another legal issue has been raised on behalf of 0.P-1 that the vehicle was purchased by M/s Bhasin & Company which is a commercial enterprise working for commercial gains as such the Complaint does not come under the ambit of Consumer Protection Act and not maintainable. From the record, it is apparent that the Complainant is an advocate and the proprietor of advocate's firms M/s Bhasin & Company. In the cause title it is clearly mentioned. Further neither the advocates can be defined as commercial enterprise nor they purchase car for commercial gains. They purchase the car for personal use only. Hence, we do not agree with this contention raised by O.P.-1 and hold that the Complaint is maintainable in this Forum.
Coming to the merit of the case, we find that the vehicle in question was purchased on 17.6.2000 and after short time of the purchase it gave trouble for the first time on 11.7.2000. The said vehicle continued to give problems and number of times the vehicle was sent to O.P.-2 for rectifying the defects. From the record, it is observed that the vehicle-in-question was repaired by the O.P.-2 on more than twenty occasions and every time some PARTLY ALLOWED PAGE 6 OF 13 FA/358/2013 D.O.D. : 17.08.2023 GENERAL MOTORS INIDA PRIVATE LIMITED VS MR. LALIT BHASIN & ORS.
amount was charged from the Complainant. We understand that the Astra Opel Car is a costly car having all modern techniques and sophisticated mechanism. Such vehicle should not give any trouble in first few years from the date of purchase. These unusual problems given by the aforesaid car like over heating coming out of fumes from the engine, the A/C not properly cooling etc. show that there is some serious defect in the engine which may be a manufacturing defect due to which the problems are recurring again and again. We also do not agree with the contention raised by O.P.-1 that the vehicle has visited the workshop on an average of four visits per year which is more than satisfactory.
We have also observed that after repairing the vehicle-in- question more than twenty occasion, the O.P-2 assured that the vehicle is set right and will not give problem in future. We are of the opinion that when the vehicle was again and again sent to the O.P.-2 for repair, the O.P.-2 should have brought this fact in the notice of O.P.-1 and both the OPs at that stage should have sent the vehicle for technical examination of their experienced experts to come to the conclusion as to whether the vehicle is suffering from some manufacturing defect or the problems are of routine nature. According to us, the continuous recurrence of the problems in the vehicle was very serious matter and should not have been taken casually considering the defects as usual problems. The Ld. Counsel for O.P.-2 has contended during the arguments that every time the vehicle came to the workshop with a different and new defect and every time the defect was rectified which shows that there was no manufacturing defect in the vehicle. We do not agree with this contention because the problems arose in the vehicle were of unusual nature and these problems may arise only due to some serious manufacturing defect.
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GENERAL MOTORS INIDA PRIVATE LIMITED VS MR. LALIT BHASIN & ORS.
Further, on the request of the Complainant when the vehicle was sent for technical expert opinion of Automobiles Association of Upper India who examined the vehicle thoroughly and submitted its report clearly mentioning that there are some manufacturing defects in the vehicle. The Automobiles Association of Upper India is an expert technical organisation and its report is worth believing. We have also placed our reliance on the case laws referred by the Complainant and come to the conclusion that the vehicle-in-question is having some manufacturing defects due to which it continuously gave problems and lastly stopped working. On going through the record we also find that the Complainant has spent a substantial amount on repairs of the vehicle and claimed a sum of Rs. 3,07,639/-. From the car-record submitted by O.P-I we find that amount received by it towards repairs exceeds Rs. 3.5 lacs, hence the claim of Rs. 3,07,639/- of the Complainant deserve to be awarded. The vehicle is lying idle due to which the complainant has suffered lot of inconvenience, financial loss, harassment and mental agony. The OPs have committed gross negligence and deficiency in providing services. As such, the Complainant is entitled for replacement of the vehicle or to get the cost of the vehicle, refund of the expenditure incurred on repairs and reasonable compensation for financial loss, harassment and mental agony.
Therefore, in view of the above mentioned discussion we issue the following directions to the OPs.
a) To replace the vehicle in question by new one of the same model or alternatively to pay a sum of Rs. 8,05,578/- along with interest @ 6% p.a from 11.7.2000 till realisation to the Complainant. The OPs shall communicate their option to the Complainant within one week from the date of receipt of order
b) To pay a sum of Rs.3,07,639/- to the Complainant.
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c) To pay a sum of Rs.50,000/- towards the compensation for physical harassment and mental agony suffered by the complainant.
d) To pay Rs.10,000/- towards cost of litigation."
3. Aggrieved by the aforesaid Judgment of the District Commission, the Appellant has preferred the present appeal contending that the District Commission has erred in not taking into account the depreciation in the value of the vehicle. Moreover, the vehicle was purchased in June 2000 and the complaint has been filed by the Complainant/Respondent No.1 in the year 2008 and as per the records, the vehicle has covered an aggregate distance of 91,511 kms therefore, the District Commission failed to take into account the depreciation in the value of the vehicle. Pressing the aforesaid contentions, the Appellant prayed for setting aside the impugned order of the District Commission.
4. The Respondent No.1 has filed it reply to the present appeal wherein it is stated that the vehicle in question was sent several times to the workshop of the Appellant for curing the defect which could not be cured even after multiple attempts thus, being a manufacturing defect. Moreover, the Respondent No.1, denied all the allegations of the Appellant and submitted that there is no error in the impugned order as the entire material available on record was properly scrutinized before passing the said order.
5. We have perused the material available on record and heard the counsel for the parties.
6. The main question for consideration before us is whether the District Commission erred in giving the whole amount of car towards compensation since the vehicle in question has a manufacturing defect.
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7. To resolve this issue, we deem it appropriate to refer to "Santosh Devi Vs. Hyundai South Regional & Ors", reported as (2012) 3 CPJ 529 (NC), wherein, the Hon'ble National Commission while dealing with the similar matter, upheld the impugned judgment of the concerned State Commission. The relevant portion is reproduced below for the ready reference:
"The very fact that the said car within a span of three years 2 months run more than 60000 Kms. speaks that there is no inherent manufacturing defect with the said car and the problem with the said car is rather created by the complainant herself. When that is so, she is bound to pay the repair charges. If she abandoned the said car and failed to take the delivery of the same by paying repair charges, she has to thank herself. When complainant is at fault, she cannot allege the deficiency in service against the Ops. Viewed from any angle, complaint appears to be devoid of merit."
8. In view of the foregoing, the facts of the present case reflect that the car in question had run over 90,00 kilometers which is clear from the maintenance record (Annexed as documents filed by the Appellant/Opposite Party No.1). The Commission finds it implausible as to how the Respondent had no.1 issues as far as handling and performance is concerned, in covering such distance over a short span of time.
9. It is also appropriate to refer to Tata Motors Ltd. Vs. Sharad & Anr., (NC), given on 19.05.2016 in RP No.2340 of 2009, wherein the Hon'ble National Commission in a similar case while granting relied has held as under:
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22. It is important to note that the vehicle had run about 35000 km in the first year and as per the admission of the learned counsel for the respondent during arguments, had run more than 90000 km. Obviously, no case is made out for replacement of the vehicle at this stage. Had there been any serious manufacturing defect, it would not have been possible to run the vehicle for so many kilometers. The circumstances and later developments in the case itself negate the justification of the order of the District Forum to a great extent. We also observe that the cases cited by the learned counsel for the respondent have different facts. The case of Bajaj Auto Ltd. &Ors. Vs. Anurag Kapoor (supra) relates to a motorcycle and the case of Hyundai Motors India Ltd. Vs. Affiliated East West Press Ltd. (supra) relates to a car which had not run so much mileage as the vehicle in the present case. Accordingly, we do not find any justification for replacement of vehicle or reimbursement of the whole cost of the vehicle which has already run for more than 90000kms. On the other hand, we are of the considered view that the complainant has suffered lot of inconvenience and misery due to improper functioning of the vehicle right from the initial days of purchase. As no purchaser of a new vehicle would ever think that he would be going to garage to get the vehicle repaired so often even if the repairs may be minor. If this has happened, the purchaser is definitely liable to receive some compensation for inconvenience and mental agony faced by him due to supply of PARTLY ALLOWED PAGE 11 OF 13 FA/358/2013 D.O.D. : 17.08.2023 GENERAL MOTORS INIDA PRIVATE LIMITED VS MR. LALIT BHASIN & ORS.
a vehicle having some defects. Accordingly, we deem it proper that the complainant must get compensation of Rs.80,000/- from the petitioner. In holding this view, we are relying on a recent judgment of this Commission given on 01.02.2016 in RP No.2354 of 2011, Tata Motors Ltd. & Ors. Vs. Ran Singh, (NC), wherein the order of the lower fora for replacing the vehicle or paying Rs.10,43,749.37 has been set aside and the order relating to award of compensation of Rs.2,00,000/- has been upheld.
10. From the aforesaid judgment, it is clear that no replacement or reimbursement of whole cost of the vehicle in question is made out in which the car in question has already run more kilometres.
11. Further, it is to be noted that it is not in dispute that the car in question had manufacturing defects in it.
12. We are not oblivious of the fact that the vehicle encountered problems within the very first years of the purchase and on several occasion thereafter despite of multiple services in a row.
13. It is indeed true that if a brand new car gives trouble within a few years of its purchase, any consumer shall feel dissatisfied. In the present case the Respondent No.1 took the pains to take the new car to the workshop multiple times and no doubt, this constitutes mental agony which the Respondent No.1/Complainant was made to suffer due to the conduct of the Appellant.
14. In view of the foregoing, we modify the order passed by the District Consumer Disputes Redressal Commission-VII, Local Shopping Complex, Sheikh Sarai, New Delhi-110017 dated 26.02.2013 to the extent PARTLY ALLOWED PAGE 12 OF 13 FA/358/2013 D.O.D. : 17.08.2023 GENERAL MOTORS INIDA PRIVATE LIMITED VS MR. LALIT BHASIN & ORS.
that instead of replacing the said vehicle or refunding the complete amount of purchase, the Appellant is directed to pay a sum of Rs.2,00,000 on account of harassment, mental agony and pain within 45 days from the issue of this judgment failing which 9% interest shall be payable from the date of judgment till it is finally paid.
15. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
16. The Judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
17. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) J.P. AGRAWAL MEMBER (GENERAL) Pronounced On:
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