State Consumer Disputes Redressal Commission
Pawan Gupta vs T&T; Motors & Anr. on 4 April, 2016
IN THE STATE COMMISSION : DELHI
(Constituted under Section 9 of the Consumer Protection Act, 1986)
Date of Decision: 04.04.2016
Complaint No.20/13
In the matter of:
Pawan Gupta,
C/o Organic Imaging Research Centre (P) Ltd.,
48/4, Tilak Nagar,
New Delhi. .............Complainant
VERSUS
1. T & T Motors Ltd.,
Dealer of Mercedes-Benz Passenger Vehicles,
Through Managing Director/Director,
212, Okhla Industrial Estate,
DL, New Delhi-110020.
Also at :
F-85, Okhla Industrial Area, Phase-I,
New Delhi
2. Mercedes-Benz India Private Limited,
Through Managing Director/Director,
E-3, MIDC, Phase-III, Chakan Industrial Area,
Kuruli & Nighoje, Chakan, PUne-410501.
........Opp. Parties
CORAM
O. P. Gupta, Member (Judicial)
S. C. Jain, Member
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes 1 Judgment S.C. Jain, Member
1. The question which arise for consideration in this case are if one of the most luxurious brand of the car, namely, Mercedes-Benz, which is represented as the world's finest automobiles built on a simple principle "even the best can get better" gives trouble within first day from the date of its purchase and which remains for 414 days in the workshop out of 616 days i.e. from the date of purchase till date of filing the present complaint, would a consumer be satisfied by such a car, And, whether the multinational company manufacturing such a car is justified in not replacing the car or refunding purchase price and instead engaging in protracted litigation? Whereas it is claimed that Mercedes-Benz is not just about building a safe car' but it is about making the road a safe place.
2. The present complaint has been filed by the complainant who purchased GL500 SUV Mercedes-Benz car by paying initial amount of Rs.8 lacs being 10% cost of the vehicle on 26.04.2011 and took delivery of the vehicle on 09.05.2011 after paying total cost of Rs.91,47,163/- (Rs. Ninety one lacs forty seven thousand one hundred sixty three only) inclusive of registration and insurance cost. The vehicle was stated to be financed through HDFC bank. The complaint has been filed by complainant against both the OPs. OP-1 i.e. T & T Motors is the dealer of OP-2 i.e. Mercedes-Benz (I) Pvt. Ltd who is manufacturer of the high end internationally acclaimed car.
3. Brief facts based on Complainants' submission are:-
Complainant intended to purchase a luxury car for himself and was basically inclined towards the products of other brands like Audi & BMW etc., however, executives of OP No.1 succeeded in alluring, inducing, enticing and tempting him to buy the GL 500 SUV Mercedes Benz Model Car. The executive of OP No.1 gave a very rosy picture of the product being unique in itself stating that the vehicle is of the class of luxury vehicles, off-roader, powered with elegance and size with a sense of responsibility, symbol of good style and 2 stating to have lot of other features most significantly and especially the safety and being used world-wide.
Complainant visited OP No.1 and was attended by Sr. Executives and was told that no vehicle in class GL-500 was available in India and that Complainant will be first among the proud lucky owners and was given a test drive in the diesel version of GL-500 and was told that the product is best in its category and it was further stated that the 3 ton product is so smooth when driven to an extent that power steering can be rotated by a single finger and that the same is guided by sensors, besides other features.
It is further alleged that from the very first day, the vehicle in question started giving problems, especially of an acute hard steering which was getting locked in itself & was not rotating freely. After taking the delivery of the vehicle, on the very same day, Complainant visited the show room of OP No.1 and brought the issue of fault and lodged his protest and was instead advised to go to Okhla workshop. It is further alleged that official of OP no.1 took the matter very lightly and in a casual, careless and negligent manner and it is only after having been reminded thrice OP-1 informed that the electronic sensor of the steering of the vehicle is having some problem and the same was accordingly replaced. However, the same problem in steering of vehicle still persisted, So complainant again visited OP No.1's show room at Okhla, Delhi but did not receive proper response but his vehicle was again kept for another 3 days. Thereafter the vehicle was sent back but the problem continued. The vehicle was again sent to workshop and after four days it was given to understand to the Complainant that the power steering point/belt needs to be replaced. It is alleged that from the date of delivery i.e. 09.05.2011 till 18th July'2011, the subject vehicle visited the workshop for more than 15 times. Thus, Complainant wrote various mails but got no satisfactory replies from OP. Mails dated 03 July 2011, 06 July 2011, 14 July 2011 & 18 July 2011 gives detail account of problems faced by the Complainant relating to technical issue of steering, non replacement of burst tyre and other issues of unfriendly after-sales services of Opposite parties.3
Meanwhile, Complainant was away to U.S.A for a month and the vehicle remained stationary, and since the problem persisted he wrote another mail dated 13th September' 2011 mentioning therein the issue of problem of Steering and comparison of the subject vehicle of the same driven by the Complainant at U.S.A and at another workshop at Delhi.
On 18th September' 2011, Complainant had a narrow escape and suffered minor injury in an accident wherein it is alleged that when the vehicle was in motion, steering jammed and locked and vehicle hit a wall. Further, air bag safety device installed in the vehicle did not deploy. Complainant on the very same day wrote a hard hitting mail mentioning therein the harassment being faced by him due to supply of a defective product and his experience of narrow escape in the accident and the issue of faulty air bag safety device in the vehicle which failed to deploy. OP No-2 replied denying any malfunctioning in the entire steering hydraulic and mechanical system and refused to accept any blame for the cause of accident on the performance of steering wheels or any other part. The Complainant there-after through his counsel sent a legal notice dated 25thOctober'2011 to OP which remained unanswered. Meanwhile, it was informed to Complainant by OP-1 that spare parts were not available in stock and work in the accident vehicle will start once they receive the same from OP No.2 for which orders placed. When no reply to first notice received, Complainant through his counsel again sent a legal notice dated 23rd November' 2011. Finally, OP No.2 after a gap of nearly 3 months sent reply dated 16.02.2012 to the legal notice denying all their liabilities.
It was in the month of March' 2012, that delivery of the vehicle was given and Complainant was asked to test drive the same. The Complainant again found a problem in engine and power steering and he brought the issue before OP No-1 on the very same day, who took back the vehicle with the promise to rectify the faults. After few months again a test drive was conducted, however, the power steering and gear box was allegedly found to be defective and the car was again taken back to the OP No-1 workshop. That in one of the test drive it was pin pointed to German technical expert Mr. Marcus Krause by the 4 complainant about the steering getting jammed when the vehicle is in motion and given sudden jerk to the left or right and the same was demonstrated to him to which he allegedly commented 'who gives a jerk to the vehicle like that'. Complainant also observed that the color of subject vehicle had turned yellow from white. Therefore, vide mail dated 20th March' 2012, Complainant highlighted all these issues.
Meanwhile, OP replaced the entire engine assembly allegedly due to internal coolant leakage, cylinder and steering system were also replaced and certified the vehicle to be road worthy. However the complainant continued to have problem with steering system and other issues raised by him which remained unresolved. The same were highlighted in mail dated 9 th May'2012, 30th May'2012, 14th June'2012, 07th August' 2012 and 21st August' 2012. Complainant also brought the issue of repainting of the vehicle and its losing color to OP who did not respond. It is further alleged that it was only when OP No-1 threatened to charge one thousand rupees per day as parking fee that complainant was forced to pick his vehicle from the workshop.
Thus, the Complainant has alleged that within one year entire engine assembly, steering system, fuel pump and transmission device, electronic sensor, coolant malfunction, power steering point-belt, cylinder, front suspension, battery, have been replaced and the whole car has been repainted. And that the steering system till date is not working properly and is locking and jamming. Further, air bag safety device failed to deploy in the accident dated 18th September'2011 and due to the non- availability of spare parts of the subject vehicle it remained in the workshop for considerable period.
Complainant has also alleged deficiency of service on the part of OP No-1 & 2 who did not care to reply to various mails and notices sent by and on behalf of the Complainant. He also raised the issue of his visiting the workshop of OP No-1 and offices of OPs a number of times for getting the vehicle repaired and on many occasions he was made to wait for the vehicle for want of spare parts.
5Complainant has also alleged unfair trade practice adopted by OP No-1 for alluring, inducing, enticing and tempting him to go in for buying GL-500 SUV Model which was stated to be top of its kind especially a feature which stated that the '3 ton product is so smooth that when driven to an extent that power steering can be rotated by a single finger.' However, Complainants' experience especially of this feature has been quite otherwise. Further, complainant has placed on record few reviews, notes, articles mentioning therein the recall of various models of Mercedes Benz in global market. He has also placed reviews relating to defective steering issue of the GL Model.
4. In nutshell, complainant also submitted a list of events date-wise which had taken place and are reproduced hereunder:-
1. Complaint booked GL 500 Mercedes Benz 26.04.2011 (paid 10%)
2. Took delivery by paying Rs.91,47,163/- 09.05.2011 (Rs.80,86,603/- {cost} +8,32,960/- {Registration Charges} + 2,27,600 {insurance cost}
3. Took the vehicle to Okhla workshop 10.05.2011 {Steering jerk & jamming problem. Vehicle certified to be road worthy}
4. Again the vehicle sent to workshop 15.05.2011 {vehicle certified to be road worthy despite Steering issue remaining unresolved}
5. Again the vehicle sent to workshop 18.05.2011 {Electronic Sensor of the vehicle changed}
6. Complaint again logged 20.05.2011 {Informed that same Electronic Sensor is faulty and needs change}
7. Tyre of vehicle burst 27.06.2011 {no replacement for more than a month}
8. Power steering Pump replaced 30.06.2011
9. Wrote Mails 03.07.2011
- Steering Jamming/Tyre non replacement after 14.07.2011
- sales poor services Issue
- Steering Jamming Issue 18.07.2011
- Date-wise technical & after sales service issues
10. Away to USA July/Aug.11 6
11. Wrote Mail 13.09.2011
- Steering Jamming & Hardness/after sales poor services Issue
12. Met with an accident 18.09.2011
13. Wrote Mail 18.09.2011
-Steering Jamming & Hardness and after sales poor services & non deploying of airbags safety device
14. Damaged vehicle taken to workshop and 18.09.2011 (Insurance claim filed and inspection and Approval done)
15. Complainant through his counsel sent a legal notice 25.10.2011 (Demanding the refund of cost of vehicle)
16. Spare parts non-availability 01.11.2011
17. Complainant through his counsel Again sent a legal 23.11.2011 notice (Demanding the refund of cost of vehicle)
18. Delivery of the vehicle given 12.03.2012
19. Test drive after vehicle certified to be roadworthy and 12.03.2012 again taken back to workshop
20. Car again certified to be roadworthy and again taken 15.03.2012 back to workshop (Power Steering defects)
21. Wrote Mail 20.03.2012
-Power steering issue
22. Approval for removing cylinder sought 24.03.2012
23. Affirmation of coolant malfunction, replacement of 29.03.2012 steering system, internal coolant leakage.
24. Gear Shifting and Power steering problem. Observed 02.05.2012 paint color change in the vehicle.
25. Affirmation of replacement of 09.05.2012 * Steering System * Entire Engine assembly
26. Wrote Mail 12.05.2012
- Steering system faulty
27. Confirmation of the road worthiness of the subject 30.05.2012 vehicle after replacements.
28. Wrote Mail 14.06.2012 Issue of Steering locking/Jamming 07.08.2012 Issue of Power Steering and charging of parking fees
29. Again taken the delivery from workshop 14.08.2012 7
30. Wrote Mail 21.08.2012 Issue of faulty Steering
31. Fuel Pump defect/replacement. October, (subject vehicle towed on truck)
5. Aggrieved by the conduct and non-cooperative attitude of OPs, the complainant filed the present complaint before this Commission praying therein for ordering the OPs for replacement of the product or return back of the invoice price with insurance and registration charges amounting to Rs.91,47,163/- of the vehicle along with compensation of Rs. 7.5 lac for harassment, mental torture, physical discomfort and for adopting unfair trade practice and has also prayed for award of Rs.51,000/- towards litigation charges.
6. Registered AD notices were sent to the OPs, who appeared and contested their cases. Bothe the parties filed their evidences by way of affidavits and also filed their written arguments. All the parties led their arguments, file perused carefully.
OP No-1 in their reply denied the entire allegations. It contended in its preliminary objection that complainant is not a consumer because the complainant is director of a company and other main ground taken by OP is that as per the warranty terms of the manufacturer, the repair or replacement of the part will be done based on manufacturers decision. And that his role is of service provider under the warranty relating to operational concerns regarding the vehicle which was duly addressed by him from time to time to the Complainant's satisfaction.
7. OP-2 also in their reply denied the entire allegations and in their reply simply took the plea and contended that as a manufacturer they comply with high standards in automobile industry having certification from various international agencies and their product duly approved and going through stringent quality checks at every stage of manufacture. OP No-2 also took a preliminary objection of complainant not being a consumer and the complaint filed being speculative in nature.
88. Ld. Counsel appearing for the complainant argued that Complainant had a bad experience with the product supplied by OP-1 and manufactured by OP-2 which was of sub standard quality having defective parts which required replacement, repair within few days of its purchase from time to time. He also mentioned about the poor after sale services on the part of OP No-1 besides unfair trade practices on the part of OPs. LD Counsel cited Apex court judgment in Indochem Electronic vs. Addl. Collector of Customs (2006) 3 SCC 721], wherein it was held that when the deficiencies in the system continued to persist during the warranty period, including the extended period, the suppliers were rightly held to be liable for deficiency in service by the State and National Commission. It was also held that in the light of the specific power conferred under Section 14(1)(c) of the aforesaid Act, damages equivalent to price of goods could be awarded.
LD Counsel for the complainant also relied upon the judgment of the Apex court in General Motors (India) Pvt Ltd vs Ashok Ramnik Lal Tolat & others [Civil Appeal Nos. 8072-8073 of 2009] wherein the Apex court affirmed the concurrent findings recorded by District forum, the State Commission and National Commission to the effect that unfair trade practice was committed by the appellant who gave quite a rosy picture of its product which was subsequently found to be incorrect.
9. LD Counsel relying upon the judgment of National Consumer Disputes Redressal Commission in the revision petition No.1363 of 2003 of Ashoke Khan vs Abdul Karim & others emphasized upon the fact that the dealer/agent and the manufacturer could be jointly and severally held liable for supply of defective product.
10. Ld. Counsel appearing for OP No-2 has relied upon the Apex court Judgment of Maruti Udyog Limited vs Susheel Kumar Gabgotra & others (2006 CPJ 3(SC)) wherein it is held that obligation of manufacturer under warranty is only to repair or replace any part found to be defective. He has also relied upon the Judgment of National Commission in TELCO vs Hardip Singh & others II 9 (2011) CPJ 236 wherein it is held that the onus to prove manufacturing defect is on the complainant.
11. LD Counsel has also relied upon the judgment of National Commission in Maruti Udyog Limited vs Casino Dias & others IV (2009) CPJ 144 wherein it is held that complainant cannot remain adamant to seek replacement of vehicle and throw his weight around to seek replacement of vehicle. LD Counsel has also relied upon the judgment of Suresh Chand Jain vs MRF I (2011) CPJ 63 (NC) which held that cut in tyre cannot be manufacturing defect and the onus to prove it is with the help of expert evidence which is on the petitioner.
12. OP No.1& 2 had raised the issue of Complainant being a director of a Private Limited Company and thus cannot be a consumer within the definition u/s 2(d) of the Consumer Protection Act, 1986. However, the evidence placed on record by the Complainant very specifically shows that the subject vehicle in question was purchased for personal requirement of the Complainant in his personal name as the registration certificate and insurance are in his name and payment was made by the complainant from his personal bank account. Therefore, we are of the considered view that it cannot be said that the car was purchased by a Company for the use of its director and complainant very much qualify to be a consumer as per section 2(1) (d) of Consumer Protection Act, 1986.
13. We are further of the opinion, that it is a admitted case of both the parties that the vehicle brand GL 500 Mercedes Benz was purchased at a consideration mentioned in the complaint. It is also not disputed by OP that the subject vehicle had been brought by the complainant to the workshop of OP No-1 from time to time within few days of its purchase. It is also not disputed by OP that there has been extensive replacement of various parts in the subject vehicle within one year of its purchase including entire engine assembly, power steering system (twice), fuel pump and transmission device, electronic sensor, power steering point-belt, cylinder, front suspension, coolant mal- functioning, battery which were duly replaced and also that the color of the 10 subject vehicle changed as the same was repainted. Further, it is also admitted that the air bag safety device did not function in the stated accident dated 18th September' 2011 which led to minor injury to Complainant and damage of subject vehicle. The non replacement of burst tyre for almost one month and non availability of spare parts is also not disputed.
14. OP No-1 & 2 has blamed the Complainant citing his disclosure in Insurance claim that the stated accident on 18th September'2011 at highway Badshahpur Gurgaon had happened while trying to avoid hitting an animal on the road and skidding of the vehicle there-after. However, the same has been denied by the Complainant who had stated that such an advice was on the basis of OP officials to get the claim and as per his statement the accident was due to the faulty steering which jammed and got locked. Further, the fact remains that Complainant duly brought to the notice of OP on very same day clearly highlighting them reason of accident due to steering failure and air bag not getting deploy. It is interesting to note that OP at one hand has opinioned that Complainant was driving at a very high speed and hit the wall and on the other hand the fact remains that the airbags safety device did not open because the impact was not stated to be hard enough. Thus, the contradiction in OPs stand goes on to prove that contention of the accident as mentioned by Complainant cannot be doubted and further, Complainant has stated that the steering system till date is not working properly despite its replacement.
15. We are of the opinion that 'there is no provision in the Consumer Protection Act that absolves the manufacturer of goods from the liability to compensate, having sold defective goods as the goods manufactured and sold to a consumer have to be tested on the anvil of the definition of the word "defect" provided by Section 2 (1) (f) of the Act which states:
16. "any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or (under any contract, express or implied or) as is claimed by the trader in any manner whatsoever in relation to any good."
1117. The fact remains that law framers had provided such strict guidelines against those manufacturers who provide defective products to exploit consumers. It also remains a fact that any person who buys a vehicle does so with an object that the same will provide comforts and peace of mind at least for some period, however, if such a vehicle starts giving trouble from the very first day of its purchase and the consumer is made to visit workshop time and again and the car remains in the workshop for 414 days out of 616 days from the date of delivery till the date of filing the complaint as gathered from the chronological date of events sheet filled by the complainant with written arguments, than it is definitely in area of concern as it is clear case of mental agony, pain, emotional trauma and harassment.
18. Thus, in this case the very fact that the subject vehicle was taken on large number of occasions for repairs and rectification of several defects and that they were accordingly rectified and removed every time and again and that the consumer was compelled to take the vehicle frequently to the workshop clearly shows that the subject vehicle was a defective vehicle within the meaning of Section 2 (1) (f) of the Act especially when almost 80% of the parts of the subject vehicle admittedly have been replaced and is still stated to be giving problems. Further, the replacement of so many parts stated to be defective within one year of the purchase of the vehicle and continuous mal- functioning of the steering system shows a great sign of abnormality in the product.
19. The certification by German Engineer who had inspected the Vehicle do not carry any weight as the subject vehicle continues to have problems relating to steering system. His opinion of not giving sudden jerk to the vehicle does not hold good in Indian conditions where there could be situations which would require avoiding collusion on the possibility of sudden turn or swear to left or right Thus the certification of the Indian and German experts of the subject vehicle being road worthy is in contradiction to number of times the subject vehicle was taken to the workshop within short duration of its certification by such experts. Further, it is observed that on many occasion such certification 12 of the subject vehicle being road worthy was given and the vehicle was again taken back to workshop due to multiple parts failure.
20. The non-availability of spare parts and the subject vehicle remaining in the workshop for almost more than a year coupled with many visits of the Complainant to OPs office/Garage considerably goes on to prove the fact that he had to undergo considerable physical discomfort, mental agony, harassment, and emotional suffering. This also is a classic example of deficiency of service on the part of OP who on many occasions have certified the vehicle to be road worthy and taken out for delivery to the complainant but has taken back the same to their workshop on the same day or on the very next day.
21. It is also astonishing to note that since from the very first day of the purchasing of the subject vehicle, the Complainant has been raising the issue of steering wheel getting locked and jammed, if sudden Jerk is given to left and right, admittedly leading to its replacement twice but still the problem persists. It also contradicts the feature extensively quoted by the manufacturer that the power steering can be rotated by a single finger. Thus in our opinion looking into the fact that the steering issue of the subject vehicle has not yet been cured shows that the Complainant was allured, induced and tempted to buy GL 500 Model of OP No-2 which was defective product and it amounts to adopting 'unfair trade practices'.
22. It is also admitted that multinational companies like OP No-2 who have got extensive coverage of their product in Indian Market had taken Indian consumers for granted in complete disregard to their high quality standards which they claim to have. We are also of the opinion that multinational companies have different set of standards for European and American markets and developing nations like India and they have not developed the tendency of accepting the defects or defaults in India as is done in other European countries and by some measures or means, the tendency to accept the defects or default is required to be encouraged in India also.
1323. We also observe that OP No.2 the manufacturer claims to be a high value brand known for Luxury Vehicles. Any luxury vehicle brings a sense of ultimate satisfaction for a prospective consumer. Mercedes-Benz claims that their GL500 product is unique in itself stating that the vehicle is of the class of luxury vehicles, off-roader, powered with elegance and size with a sense of responsibility, symbol of good style and stating to have lot of other features most significantly and especially the safety and being used world-wide. Complainant was further informed that the product is best in its category and that the power steering is very smooth. It was also claimed by OP that the GL500 4-Matic is not only at the top of the Mercedes-Benz SUV hierarchy, but is also one of the most powerful SUV's in the world, coming with a 5.4 liter V8 engine that produces a nerve wracking power of 388 HP and a staggering 530 NM of torque. OP also claimed that A7G TRONIC 7-speed gearbox allowing shorter gear shifts, 20-inch alloy wheels and the extraordinary AIRMATIC suspensions on the GL500 make it one of the best off-roaders ever to hit the sub-continent.
OP No.2 had extensively advertised and adopted new brand claim "The best or nothing" and its stated brand claim is not only reflected in the core brand value of perfection, fascination and responsibility but is also stated to be living, breathing part of corporate culture. OP No2 from time to time ha also been changing its brand slogan like "Engineered Like no other car in the world" or Unlike any other" or "Ultimate driving machine", thereby meaning that OP No.2 has always been quite conscious of its brand value which they have been building over a period of time. Further, luxury has been the hall mark of OP No. 2 who claims to be producing world class cars which are stated to be giving ultimate comforts and peace of mind to prospective customers. Mercedes is worlds' top brand and OP No.2 claims to be world's top brand in vehicles, however the fact remains that Complainant had put his trust in the brand and in return got a defective product and deficient after sales services.
14We are of the opinion based on material records that the subject product suffered from multiple failures requiring change ofparts within one yea r of purchase. Thus, the brand and luxury claims of OP seems to be hollow as the customer lost his piece of mind and suffered immense discomforts and harassment of visiting the workshop on many occasion. Further, the fact that repairs had been a continuous phenomena in the subject vehicle despite running only 30,000 km till date i.e. the date of hearing arguments on 22.03.2016, which goes on to prove that the product did suffered from inherent defects warranting change of parts/ repairs from time to time. It is also a fact that what warrants is the spirit of law as the tall claims of OP offerings ultimate luxury by creating certain brand value is missing in the present complaint case. It is also a stated law that 'justice not only is to be done but should also appear to have been done' therefore what matter is the spirit of law which is of paramount importance rather than the law in itself. Thus, in our opinion, the Complainant in the present case has to undergo lot of harassment, loss of peace of mind, trauma and mental agony as what customer wants and looks for in a luxury brand is to get a product which had a value qualitative-wise implying thereby that it should give comfort, piece of mind against the consideration paid. Therefore, despite contentions of OP having replaced parts under warranty and its claim of warranty clauses, the fact remains that number of parts were changed in frequent intervals which shows that the tall claims of a high brand and ultimate luxury is not present in the subject vehicle and the fact that car remain in the workshop of OP-1 for more than a year till the date of filing the complaint for one defect and other or for replacement of one part or the other is itself sufficient to held that OP had supplied defective car to the complainant which any more does not require expert opinion because OPs themselves have admitted for replacement of engine and other parts as mentioned earlier in preceding paras and one can imagine the trauma which complainant and his family would have suffered even after purchasing such a luxurious car.
24. Hon'ble National Commission in Revision Petition No.958 of 2007 decided on 29th November, 2007 in a case titled as M/s. Hyundai Motors India Ltd. Vs. 15 Affiliated East West Press (P) Ltd., where car had gone to the workshop on several occasions for repairs within a short period of one year of its purchase for one defect or other or for similar problem and the car all throughout was emitting smoke which defect could not be rectified by the manufacture of the dealer had held that "with such a vehicle the consumer would not be satisfied. May be that such defect may occur in one of thousand vehicles, but, at the same time, it is the duty of the reputed / established manufacturer to replace such a vehicle".
The Hon'ble National Commission in this case also turned down the contention of the petitioner for appropriate reduction in the amount payable, as the car had been used for more than one year and said that these submissions cannot be accepted because the complainant has also invested money for purchase of the said car and on the same amount he has also lost interest and further said that as petitioner could not rectify the defect. Hence, there is no question of deducting any amount and ordered for refund of the entire amount.
25. Similarly, Hon'ble National Commission in another original Petition No. 9 of 2006 decided on 17.09.2007 titled as M/s Control and Switch Gear Co. Limited Vs. M/s. Daimler Chrysler India Pvt. Ltd. and Ors., in which issue of replacement of Mercedes-Benz car or refund of its full price was involved had held that the consumer / purchase of new Mercedes-Benz car would not be satisfied with the said car, which requires repeated repairs, and the consumer is entitled to get replacement or refund of the purchase price of the car. Hon'ble National Commission further said that in this case as the car had developed defects from the very beginning of its purchase and the same could not be rectified even after replacement of many parts even after its use for more than two and half year and held that "we can say without hesitation if the car is defective, may be on one or other count but that would not give any satisfaction to the purchaser of such a high end car as Mercedes-Benz car and has spent large amount for its purchase, non replacement of the vehicle in these Act of circumstances would tantamount to unfair trade practice" and ordered for replacement 16 of the car with the same model, or, in the alternative refund of its full price.
26. Therefore keeping in view the submissions made by the parties and case laws discussed above, we are of the considered view that OPs had been deficient in providing services to the complainant as well as are guilty of selling defective car to the complainant and are also liable for adopting unfair trade practices.
27. We accordingly direct the OPs as follows:-
OPs shall replace GL 500 SUV Mercedes-Benz car Reg. No. DL-13C-B-9000 with a new car of the same and similar model and take back the old car, or in the alternative refund its full purchase price of Rs.91,47,163/- (Rs. Ninety one lacs forty seven thousand one hundred sixty three only) which was paid by the complainant. However, considering the facts and circumstances of the case, particularly the fact that complainant has used the car till today though in any condition, we are not inclined to award any compensation and cost of litigation as prayed.
The above orders are joint as well as several against both the Ops.
28. The above orders shall be complied by the OPs within 30 days from the date of receipt of these orders and if OPs fail to comply the same, the complainant shall be at liberty to approach this Commission u/s 25/27 of Consumer Protection Act, 1986.
29. Copy of the orders be made available to the parties free of cost as per law and thereafter file be consigned to Record Room.
(O.P Gupta) Member Judicial (S.C Jain) Presiding Member jk 17 18