State Consumer Disputes Redressal Commission
Shri Deepak Patil, vs M/S. Subrai Motors Pvt. Ltd., on 30 April, 2013
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA Complaint No. 11/12 Shri Deepak Patil, Major married, having address at House No.158, Near Real Soda, Miramar, Panaji - Goa Complainant V/s. 1. M/s. Subrai Motors Pvt. Ltd., A Company incorporated under the Indian Companies Act, having their Address at F. L. Gomes Road, Vasco da Gama, Goa through their Director 2. M/s. General Motors India Ltd., A Company incorporated under the Indian Companies Act, having their Address at Chandrapura Industrial Estate, Halol, Pachamahals, Gujarat 389 351. .Opposite Parties Complainant is represented by Adv. Shri. A. R. Kantak O.P. No.1 is represented by Adv. Shri. A. Shetye O.P. No.2 is represented by Adv. Shri S.Dessai Coram: Shri Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 30/04/2013 ORDER
[Per Shri. Justice N. A. Britto, President] This order shall dispose off the complaint filed on 16/08/2012.
2. The Complainant on or about 19/09/2011 purchased from OP No.1, a dealer, a car manufactured by OP No.2 known as Chevrolet Captiva LTZ E III for a sum of Rs.19,94,108/- and registered the same under no. GA-07 E-3782. The Complainant also paid a sum of Rs.1,19,646/- towards tax and Rs.41,902/- towards insurance.
3. The Complainants car was due for first servicing - re-assurance check as OP No.1 would call it, at 1,000 kms. or one month from the date of purchase, whichever is earlier.
4. The case of the Complainant is that the said car had manufacturing defect in that whilst driving it would automatically get shut off and the heater light would come on and again within a few seconds, start again and the heater light would go off.
5. The Complainant took the car for first servicing on 30/05/2012 at 4202 kms and the Complainant expressed his concern about the said defect. The OP No.1 carried out comprehensive test of the car but the concern of the heater light coming on and the engine shutting off was not witnessed at the time of the said test or trials taken thereafter.
The Complainant obtained the delivery of the vehicle on the same day stating that the job was attended to his satisfaction.
6. The Complainant then on or about 07/06/2012 wrote to OP No.1 that he had come across the same problem for the third time and further informed that in case there was a problem the vehicle ought to be exchanged and his money refunded back. The Complainant then wrote another letter on or about 02/07/2012 about the same problem stating that whilst driving, the car was automatically getting shut off and within 5 seconds would also start.
7. OP No.1, the dealer, brought the car of the Complainant to their workshop on 05/07/2012 and it was checked by the trained technicians of OP No.1 along with the technicians of the manufacturer, OP No.2, who suggested the replacement of full wiring harness and ECM and to do DCM reprogramming so that the Complainant would have full confidence. On the advice of the technicians of OP No.2, the technicians of OP No.1 took extensive trial of the vehicle but did not notice any temperature light coming on or showing on the dash board and closed the job card of the Complainant on 07/07/2012.
8. The Complainant wanted the car to go for an outing and therefore the Complainant collected the car on 20/07/2012 and then the car was collected for further testing as well as for complete confirmation check and verification by technical experts of OP No.2, on 23/07/2012. This was in addition to verification which was carried out by technical experts of OP No.1s workshop.
9. The Complainant then immediately sent an advocates notice to both the Ops on 24/07/2012 calling upon them to repair and return the vehicle free from any defect whatsoever by 31/07/2012 failing which they should refund to the Complainant the entire cost of the car along with the expenses incurred towards registration, tax and insurance or in the alternative the Complainant be provided a brand new car of the same make.
10. As already stated, the Complainant on or about 16/08/2012 filed this complaint and the record would also show that on 24/08/012 the Complainant conveyed to OP No.1 that he was scared to drive the car and that they should give his money back or exchange the vehicle.
11. Two questions arise for our consideration.
12. The first. Whether the Complainant is entitled for replacement of the car or refund of the price paid, in terms of prayer (a) and (b) of the complaint?
12.1 The Complainant filed an application before this Commission on 15/10/2012 directing the OP No.1 to hand over the possession of the car to the Complainant as OP No.1 had contended in the written version that the vehicle has no defects. OP No.1 filed their reply on 18/10/2012 showing their willingness to hand over the car to the Complainant. In terms of the said reply the Complainant collected the car on 19/10/2012.
12.2. Shri A.R. Kantak, the lr.
advocate of the Complainant would contend the said defect still persists and the Complainant does not have confidence in driving the said car particularly at times when the Complainant is required to overtake another vehicle or climbing the slope and in support of the submission Shri Kantak points out to letter dated 31/08/2012 sent by OP No.2 to the Complainant by which OP No.2 had sought some inputs from the Complainant. Lr. advocate Shri Kantak submits that the said letter shows that the defect in the car had persisted till then.
12.3 We are not inclined to accept the said submission. Admittedly, the Complainant collected the car from OP No.1 on 19/10/2012 and we are on 30/04/2013, almost more than 6 months after the car was collected by the Complainant. The Complainant filed his affidavit in evidence in this complaint on or about 22/11/2012 and from the said affidavit we find that there is no categorical statement made by the Complainant that the problem or the defect had re-occurred again. Likewise till date the Complainant has not taken the car to the workshop of OP No.1 nor filed an application before this Commission pointing out that the problem he was facing still persists. We are therefore of the view that the problem or the defect which the Complainants car had, had been rectified by the OPs.
12.4 Shri Shetye, on behalf of the OP No.1, has placed reliance on the case of Sydney and Lyndon Realtors vs. Goa Motors Pvt. Ltd., 2013(1) CCC 295 wherein the National Commission has approved the view held by this Commission that when a part is found to be defective all that the Opposite Parties are required to do is to replace the part and rectify the defect and the demand for replacement either of the entire engine or the entire vehicle is unfair and unreasonable. In our view the Complainant is not entitled to the prayers (a) and (b) of the complaint.
13. The second. Is the Complainant entitled to any compensation in terms of prayer (c) to (f) of the complaint?
13.1 We assume that the car of the Complainant remained with the dealer, OP No.1, from 05/07/2012 to 20/07/12 and again from 23/07/12 to 19/10/12 as no details are forthcoming on this aspect either from the Complainant or the Opposite Parties. The OP No.1 had stated that they had to place a special order known as VOR i.e. vehicle off road and that OP No.2 sent a wrong part and hence it took 8 to 10 days for replacing the wiring harness of the car and after replacement of wiring harness the car did not show any indication on the dash board. According to them, the vehicle was lying at their workshop for nearly 2 to 3 months inspite of several repeated oral requests being made by them for taking the delivery of the vehicle for which OP No.1 was required to take special care of the vehicle. According to them, the car was ready before 24/07/2012 when they received the legal notice sent by advocate Shri Kantak and that the Complainant was informed that his car was under warranty and in case any problem arises it would be attended, free of cost.
OP No.1 has also stated that the Complainant was informed that the Complainant could hire a taxi for a period of 5 days and the hire charges would be borne by them, as the Complainant had refused to take the loaner vehicle i.e. an Optra, as a gesture of good will, as they could not provide a Captiva, insisted upon by the Complainant, and subsequently the Complainant collected a cheque of Rs.9,000/- on 26/09/2012 when the Complainant visited the workshop of OP No.1 to see the status of the car.
13.2 The record would show that by letter dated 21/08/2012 the Complainant was requested by OP No.1 to hand over the duplicate key which was handed over on the same day. The said duplicate key was required for reprogramming on account of replacement of full wiring harness and ECM and DCM reprogramming. Earlier, by letter dated 16/08/2012 OP NO.2 the manufacturer, had written to the Complainant that they had instructed OP No.1 to receive the second key from him and that they would resolve the concern of the Complainant within 4 to 5 days and they would do a thorough check of the vehicle and deliver the same to the Complainant. There is no letter written to the Complainant after 21/08/2012 calling upon the Complainant to take the delivery of the car after the reprogramming of the duplicate key was carried out by the OPs. We are of the view that the Complainant was deprived of using the vehicle at least from 05/07/2012 to 20/07/2012 and again from 23/07/2012 to 21/08/2012 on account of the problem faced by him. According to OP No.1 the Complainant is not entitled or any compensation @ Rs.2,500/- per day from 02/07/2012 as prayed for by the Complainant. OP No.1 has also contended that the Complainant has not produced any evidence to prove that the Complainant suffered damage of Rs.1,00,000/- and for a compensation of another Rs.1,00,000/-.Complainant has already been paid Rs.9,000/- on 26/09/2012. We are not inclined to accept entirely the said submission.
13.3. Captiva purchased by the Complainant was an initial disappointment for the Complainant. Complainant was a dissatisfied consumer. The National Commission in Hundai Motors India Ltd., I (2008) CPJ 19 has stated that when a brand new car gives trouble within a few days of its purchase, the consumer would be dissatisfied. The National Commission also stated that when a person purchases a vehicle, may be a luxury one or small one, the person would not be satisfied if it is a defective vehicle.
The defect may not be major one but the consumer loses satisfaction of having a new one and the loss of satisfaction is much more in a case where the person buys the vehicle with his hard earned money.
13.4 There is no doubt that the OPs have done everything possible to ensure that the defect was rectified to the satisfaction of the Complainant but in that process have taken a considerable time during which the Complainant was deprived of using his car. The OPs have paid the Complainant taxi charges at the rate of Rs.1,800/- per day for 5 days. We could take it that the Complainant was deprived of the use of car for 25 days of July and 21 days of August and in all 46 days and the Complainant has been paid for only 5 days leaving the balance of 41 days to be paid for. We are therefore of the view that it would be just and proper that the Complainant is paid a sum of Rs.73,800/- for having been deprived of the use of the car for 41 days. Compensation for disappointment, frustration, mental stress and other hardships we fix at Rs.50,000/- plus Rs.5,000/- being the costs of this complaint, and direct the OPs to pay the same to the Complainant jointly and severally within a period of 30 days and on their failure to pay the said amounts, it will carry interest @ 9% per annum until it is paid.
14. For reasons aforesaid, the complaint shall stand dismissed in terms of prayer (a) and prayer (b) and allowed in terms of prayers (c) to (f) as indicated hereinabove.
(Shri. Vidhya R. Gurav) (Justice Shri. N. A. Britto) MEMBER PRESIDENT /lm