State Consumer Disputes Redressal Commission
Ganesh Das Bhojraj vs P.S. Cars Pvt. Ltd on 28 April, 2008
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 28-04-2008 Complaint Case No. C-375/1999 M/s Ganesh Das Bhojraj, Complainant Through Sh. Darshan Asrani, Partner, H-5/4, Model Town, Delhi-110009. Versus 1. M/s P.S. Cars Pvt. Ltd. , Opposite Party No.1 Authorised dealer DCM Daewoo Motors Ltd., Showroom 31 U.A., Jawahar Nagar, Bungalow Road, Delhi-7. 2. M/s M/s Daewoo Motors India Ltd. Opposite Party No.2 Regional Office, Delhi, F Block, S-2, Upper Ground Floor, International Trade Tower, Nehru Place, New Delhi-110019. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal- Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) On account of having been sold a highly defective car manufactured and supplied by the OP, the complainant has through this complaint sought the following reliefs:-
(i) Direct the OP to replace the car of the complainant jointly or severally with the new car which should not be defective again.
(ii) Direct the OPs to refund the amount of car which was paid to the OP No.1 by the complainant at the time of purchasing the car, if the OPs are not inclined to replace the car.
(iii) Direct the OPs to pay compensation /damages of Rs. 1 lac to the complainant towards the mental and physical torture during the last more than one year.
(iv) Direct the OPs to pay the litigation expenses to the tune of Rs. 50,000/-.
2. Allegations of the complainant, in brief, are that OP No.1 is the authorized dealer of DCM Daewoo Motors India Ltd. OP No.2 is the manufacturer of cars under the brand name of CIELO in different models. Complainant is the partner in the firm M/s Ganesh Das Bhojraj having its office at Model Town.
On 20th March, 1998 the complainant purchased a new CIELO (GLE) Passenger car with A.C., CST Player, Power Steering and Manual Transmission, from the OP No.1 from its showroom at 31 U.A. Jawahar Nagar, Bungalow Road, Delhi-7 vide Invoice NO. 193, dated 20-3-1998 for Rs. 5,00,511/-. The complainant made the payment of Rs. 5,00,511/- to the OP No.1 through cheque NO. 000619 dated 17-03-1998 drawn on Jammu & Kashmir Bank Ltd. OP No.1 issued receipt No. 1279 dated 17-3-1998 for the same, which is Annexure A. The said car was registered in the name of the complainant firm i.e. M/s Ganesh Das Bhojraj.
3. That ever since from the date of its purchase, the car is troubling a lot and the complainant is not satisfied with the overall performance of the vehicle for which he has spent more than 5 lakh rupees. The complainant is complaining continuously to the OP No.1 about the major defects and problems of the car which he observed while driving the car. Even after the prescribed free services by the OP No.1, the car remains at the same stage from where the trouble started. The major complaints about the car are as under:-
Noisy suspension.
Noisy steering.
Noisy Clutch pedal.
All the doors noisy.
Noisy shockers and coil springs.
Gas leakage.
Stereo problem.
Low mileage.
Car is stretching towards left side while driving, not smooth running.
Wheel not aligned properly which damaged both front tyres.
Front right side seat broken by the mechanic while doing the repairing job.
Above all the whole body of the car is also noisy.
4. In addition to the above major defects, there are so many other minor problems which irritate the complainant as and when he drives the car.
5. That the complainant sent the car to the OP No.1 who has also the authorized service station for the regular service of the vehicles and explained them about the defects and problems of the car but after the service when the complainant got the car back he found that the defects and problems which were explained to them were not got repaired to the satisfaction of the complainant.
6. That after completion of the regular free services of the car, the complainant send the car to the OP No.1 at least for five times for its repair vide repair order No. 4187 dated 29-07-1998, repair order No. 4678 dated 03-10-1998, repair order NO. 50-15 dated 21-11-1998 and repair order No. 5207 dated 18112.98. All the above repair order forms clearly indicate the above mentioned defects in the car, which are troubling the car, all the times, for one reason or the other. In normal cases after purchasing any new vehicle from the showroom, it never troubles the owner at least for two years or so but in the present case, the defects in the car of the complainant are really irritating ones. The complainant also sent his complaint to higher authorities in the regional office of OP No.2.
7. In spite of all these correspondence through fax and letters and even after giving the assurances the complainants car is still troubling and the problems are increasing day by day. The complainant sent a legal notice through the counsel on 1st March 1999 addressed to M/s DAEWOO Motors India Ltd. at Regional Office and the C.C. was sent to OP No.1 and also to the Production Manager at its factory in Dadri, U.P. but no reply of the same has been received till date.
8. That while talking to the mechanical staff of OP No.1, they admit that this particular car is having so many manufacturing defects which cannot be repaired in their workshop. The officials of OP No.2 also agree with the complainant but are helpless in solving the problem of the complainant. The complainant has been deprived of feeling of being the owner of new luxury car. The OPs are guilty of selling a defectively manufactured car which has not even proven the minimum requisite qualities of a reputed luxury car.
9. That the complainant suffered financially, physically and mentally a lot beyond any doubt and his hard earned money has become a total loss for which all the responsibilities lies on both the OPs jointly and severally.
10. In its defence the OP No.1 has come up with the following pleas:-
(i) That the car was purchased by the complainant for commercial purpose and as such the present case is not maintainable in the eyes of law.
(ii) That at the time of taking the delivery of the car and after that the car in question was in a good/sound running condition and some minor defects pointed out by the complainant were removed by OP No.1 within warranty and every time the vehicle was left in the workshop of OP No.1, the authorized person of the complainant signed at the time of giving the vehicle. After completing the job/repair assigned the complainant had certified that the work has been done to his satisfaction and at no point of time any deficiency or defect was pointed out by the complainant or his representative.
(iii) OP No.1 denied that the car in question was having such a long list of troubles and whatever defects were noticed or pointed out by the complainant were rectified by the OP No.1. The complainant is very sensitive and the alleged defects which are of minor in nature, if any, should not causes irritation to him but the same were again and again attended and were removed to his satisfaction. As per settled principle there is no certificate of an expert produced by the complainant to show that there was any defect in the vehicle.
11. Besides reiterating the pleas raised by OP No.1, the OP No.2 has in its defence averred that complaint is not maintainable against it in view of the fact that all the assets of the OP No.2-Company stand attached to DRT-III, Mumbai vide order dated 05-09-2002 passed in O.A. No. 162/2002 in ICICI Ltd. Vs. DMIL ors. The Receiver M/s Khade Bapat Sinha & Asociates have taken the possession of all the assets of DMIL & DMIL is acting as agent only of Receiver. Further vide order dated 08-08-2002 in Misc. Appeal NO. 305/2002, ICICI Vs. DMIL, The DRT has been directed to sell the assets of DMIL and public auction of the said assets on 12-02-2003 has already been advertised. In view of the above it is necessary to implead the DRT Receiver as necessary party and in absence of which the complaint of the complainant is not maintainable and is liable to be dismissed.
12. In support of its allegations, the complainant has produced and proved the following documents:-
(i) Annexure A is the invoice dated 20-03-1998 issued by OP No.1 showing the total consideration made by the complainant towards purchase of the vehicle.
(ii) Annexure B is the receipt dated 17-03-1998 issued by OP No.1 which showed the payment of Rs. 5,00,511/-
vide cheque No. 00099 dated 17-03-1998.
(iii) Annexure C, D, E, F, & G are Repair Order Forms of different dates showing different repair works done by the OP.
(iv) Annexure H is the acknowledgement letter dated 08-06-1998 issued by OP No.2 in respect of of fax dt. 01-06-1998.
(v) Annexure I is letter dated 28-10-1998 in response to the complaint sent by the complainant through fax dt6. 16-09-1998
(vi) Annexure J is another letter dated 16-10-1998 sent by the complainant to the OP No.2 regarding the problems of the vehicle.
(vii) Annexure K is letter dated 03-10-1998 regarding different defects pointed out by the complainant for the third service.
(viii) Annexure L is another letter dated 20-01-1999 complaining the problems of the vehicle to OP No.2
(ix) Annexure M is legal notice dated 01-03-1999 sent to the OPs.
13. As against this the respondent has placed reliance upon the following documents:-
(i) Copy of comparative chart regarding services.
(ii) Copy of repair order form No. 5207, 3877, 4187, 3802, 4252, 5015 and 4678.
(iii) Copy of letter dated 03-10-1998.
(iv) History card from 01-04-1997 to 16-06-2000
14. We have accorded careful consideration to the rival contentions and claims and heard the learned counsel for the parties at length.
15. It is misconceived notion that goods or vehicle for that purpose cannot be declared as defective unless it suffers from manufacturing defect or inherent defect. The quality and standard of every goods has to be tested on the definition of word defect as defined by section 2(1) (f) of the Consumer Protection Act 1986 which means 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 goods.
16. Whenever a consumer purchases a brand new vehicle the minimum expectation is that it would be trouble free and without any inconvenience as a second hand or third hand vehicle gives. If the consumer goes every now and then to the workshop for removing one defect or the other and if defects continue till after the expiry of warranty the vehicle has to be held defective. Various job cards and repair order forms of different dates and various letters sent by the complainant regarding the problem of vehicle project the low and sub-standard quality of the vehicle.
17. Vehicle with persistent problems of noisy suspension, noisy steering, noisy clutch pedal, noisy doors, noisy shocker and coil spring, gas leakage, low mileage, wobbling while driving has to be declared as a defective vehicle.
18. In modern busy life consumers are not supposed to suffer so much inconvenience and harassment by purchasing brand new vehicle and taking it to the garage every now and then for removing one defect or the other, at the cost of time and expenses over and above the mental agony and harassment, physical discomfort and emotional suffering consumer suffers are immense and he also suffers financial loss in terms of business or profession.
19. In the instant case there is sufficient evidence to show that the vehicle supplied was defective vehicle and therefore in terms of Section 14 (1) of the consumer Protection Act we have four options to do which are as under:-
(a) To remove the defect pointed out by the appropriate laboratory from the goods in question;
(b) To replace the goods with new goods of similar description which shall be free from any defect;
(c) To return to the complainant the price, or, as the case may be, the charges paid by the complainant;
(d) To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
20. We have taken a view that whenever such a dispute arises, the endeavour should be to end the dispute once for all and should not relegate the parties to second or third bout of litigation.
When order is made for replacement of the vehicle by a brand new vehicle or for rectification of the defect possibility of new vehicle also being defective or removal of defects being not upto the satisfaction of the consumer cannot be ruled out and this will again lock the parties in litigation for several years. The pragmatic solution of such disputes is only to refund the cost of the vehicle besides compensating the consumer for the suffering he has suffered at the hands of the manufacturer of the vehicle.
21. On the aforesaid premise, we allow the complaint in the following terms:-
(i) OP shall refund the cost of the vehicle i.e. Rs. 5,00,511/- on the return of the same with all necessary documents for change of registration in the name of the OP.
(ii) OP shall also pay Rs. 25,000/- lumpsum compensation which shall include cost of litigation.
22. Order shall be complied with, within one month from the date of this order.
23. Complaint is disposed of in aforesaid terms.
24. A copy of this is order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
25. Announced on the 28th April, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj