State Consumer Disputes Redressal Commission
Novelty Hyundai vs Ravneet Kaur on 16 March, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) First Appeal No.392 of 2019
Date of institution : 01.07.2019
Reserved on : 05.03.2021
Date of decision : 16.03.2021
M/s Novelty Hyundai, Near New Amritsar Jalandhar Road, G.T. Road,
Amritsar, through its Accounts Manager Shri Rajesh Kakaria.
.....Appellant/Opposite Party No.2
Versus
1. Ravneet Kaur wife of Simardeep Singh, daughter of Sh. Gujinder
Singh, resident of 76, Holy City Green, Gumtala Bye Pass,
Amritsar now resident of 103-A, Gali No.2, Guru Amar Dass
Avenue, Ajnala Road, Amritsar.
.....Respondent No.1/Complainant
2. M/s Hyundai Motors Ltd., Head Office at 5th-6th Floor, Corporate
One (Banni Building), Plot No.5, Commercial Centre, Lasola,
New Delhi-110025, through its Authorized Signatory.
.....Respondent No.2/Opposite Party No.1
Present:-
For the appellant : Sh. Vaibhav Narang, Advocate
For respondent No.1 : Sh. Sukhandeep Singh, Advocate
For respondent No.2 : Sh. Amit Gupta, Advocate
2) First Appeal No.463 of 2019
Date of institution : 24.07.2019
Reserved on : 05.03.2021
Date of decision : 16.03.2021
Hyundai Motor India Ltd. having its office at 2nd and 6th Floor,
Corporate One (Baani Building), Plot No.5, Commercial Centre,
Jasola, New Delhi-110025.
.....Appellant/Opposite Party No.1
Versus
1. Ravneet Kaur wife of Simardeep Singh, daughter of Sh. Gujinder
Singh, resident of 76, Holy City Green, Gumtala Bye Pass,
First Appeal No.392 of 2019 2
Amritsar now resident of 103-A, Gali No.2, Guru Amar Dass
Avenue, Ajnala Road, Amritsar.
.....Respondent No.1/Complainant
2. Novelty Hyundai, through its Principal Officer, Near New
Amritsar Jalandhar Road, G.T. Road, Amritsar.
.....Respondent No.2/Opposite Party No.2
First Appeals against the order dated
20.03.2019 passed by District Consumer
Disputes Redressal Forum (now
"Commission"), Amritsar.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member Present:-
For the appellant : Sh. Amit Gupta, Advocate For respondent No.1 : Sh. Sukhandeep Singh, Advocate For respondent No.2 : Sh. Vaibhav Narang, Advocate ............................................................................................ JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT This order shall dispose of the above reffered two (2) First Appeals, which have been preferred by the appellants/OPs against the same impugned order dated 20.03.2019 passed by District Consumer Disputes Redressal Forum, Amritsar (now in short, "the District Commission"), vide which, the complaint of the complainant was allowed against opposite parties (in short "OPs") and the following reliefs were granted:-
"9. In view of above discussion, the present complaint is allowed and the opposite parties are directed to replace the vehicle in question with same make and model or to refund the price of the vehicle. The complainant is also entitled to Rs.10,000/- (Ten thousand only) as compensation on account of harassment and mental agony and Rs.7,000/- (Rupees Seven thousand only) as litigation expenses from both the opposite parties. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @9% per annum, on the awarded amount, from the date of complaint till its realization."First Appeal No.392 of 2019 3
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. First Appeal No.392 of 2019 has been preferred by the appellant/OP No.2 and First Appeal No.463 of 2019 has been filed by appellant/OP No.1 for setting aside the impugned order dated 20.03.2019 of the District Commission. Facts are taken from First Appeal No.392 of 2019 titled as "M/s Novelty Hyundai Vs. Ravneet Kaur & another".
First Appeal No.392 of 2019
4. Brief facts, for disposal of the appeal, are that complainant purchased i-20 car, bearing Engine No.259573 and Chassis No.535356, White Colour having registration No.PB02-CB-0776 on 15.03.2013, vide invoice No.1261513 from OP No.1, which is the authorized dealer of OP No.2. At the time of purchase of said car, OP No.1 had given two years warranty. After the purchase of the said car when the complainant put the same on road, he noticed following defects:
a. The ejection of excessive smoke from the exhaust pipe; b. Knocking sound from the engine;
c. The staring was pulling the wheels towards left; and d. The fuel efficiency was much lesser than claimed and promised by OP No.2, through advertisement and brochure and verbally at the time of pre-sale canvassing. The complainant immediately reported the matter to OP No.2, the dealer, who verbally assured that such defects would automatically be removed after first service as all the minor adjustments are done First Appeal No.392 of 2019 4 during first service. The complainant took the said car for first service on 24.04.2013 at the workshop situated at G.T. Road, near New Amritsar, of OPs and the she reported the aforesaid defects to Officer Incharge of workshop and the same were not mentioned in the job card. When the complainant questioned about the same, the said Officer Incharge reiterated that these defects were of minor nature, which are commonly found in a new vehicle and would get automatically removed after 1st service, therefore there was no need to mention them. After 1st service the complainant noticed the same defects in the car and she reported the matter to the said workshop on 31.08.2013. Then the Engineer/Foreman of the workshop after thorough inspection of the vehicle informed her that the injectors of the vehicle were defective and needs replacement for which the expenditure was projected to about Rs.1,00,000/-. But when she told that the car is still under warranty period of two years, then the estimate was reduced to Rs.6502/- only and complainant paid the same in cash and after repairs, the car was released in the evening.
But none of the defects were removed by the said workshop of OPs. At that time the car was kept by the workshop for 5-6 days and was released on 31.08.2013 with an assurance that the defective injectors had been replaced and there would not be any problem anymore. When the complainant asked for charging of Rs.6502/- as vehicle was under warranty, the said Incharge refused to refund the same. But, when the complainant put the vehicle on record, she found that none of the said defects were removed. Therefore, she had taken the First Appeal No.392 of 2019 5 vehicle to another authorized workshop of OP situated at Court Road, Amritsar, but the said workshop refused to take up the vehicle on the ground that the injectors were replaced by the other workshop. But on the complaint filed by the complainant through online, said workshop taken the vehicle for repair. After inspection, the Incharge of the workshop told that the vehicle has no defect except that it was emitting more smoke which could be due to excessive cold weather condition. It is further averred that incidentally another i-20 car passed that way and it was not emitting any smoke. The complainant pointed out the difference. The workshop Incharge told that this was brand new i-20 car and the injectors of new models have been modified to remove the existing defect. He further told that if the complainant wants to replace the injectors, then she would have to bear an expenditure of Rs.1,00,000/- approximately. This statement itself contains admission by the authorized workshop that the car of the complainant has defective injectors which have been modified in the new models and thus the car has a manufacturing defect. When the cold season was over but the car was still emitting black smoke, the complainant reported with vehicle to the authorized workshop at Amritsar during Ist week of February, 2014. This time after inspection the complainant was told that there is no defect in the engine but the diesel is adulterated. Therefore, the workshop people drained out the entire diesel and put their own diesel and raised the bill for 12 litres of diesel apart from Rs.2502/- for repairs and service. The drained out diesel of the car which was about 20 litres was neither returned to the First Appeal No.392 of 2019 6 complainant nor tested for adulteration. The complainant in this regard served upon a legal notice dated 18.02.2014 upon the OPs, which was completely ignored by them. Lastly on 07.10.2015 the vehicle was again reported to the authorized workshop of the OP which is situated at New Amritsar, but the OPs made entry for check in of the vehicle on 09.10.2015 i.e. after two days and for that period the OP No.2 has plied the car for about 100 km unlawfully while the risk and liability both civil and criminal remained on the complainant. On 14.10.2015 when the complainant reported to OP No.2 for receiving the vehicle after repair, it raised a bill of Rs.23,890/- without giving any detail regarding the expenditure of Rs.18,000/- mentioned at Sr.No.1 under heading labour and service in cash memo. When questioned, the said OP interpolated by hand in the bill "injector repair" which is vague and result of afterthought. But neither the injectors have been repaired nor any cogent proof of such repair is given. Moreover, only on 21.03.2014 the injectors were alleged to be replaced by keeping the vehicle for about one month by OP No.2. In view of the workshop history, it is crystal clear that the defects mentioned were found and reported to the OPs soon after the purchase of the vehicle and the defects could not be removed during entire period of guarantee which infer manufacturing defect in the vehicle. The act of the OPs in supplying a vehicle with manufacturing defects to the complainant is an act of deficiency in service, unfair trade practice and has caused lot of mental tension, agony besides financial loss to the complainant. The complainant prayed for following reliefs:-
First Appeal No.392 of 2019 7
(a) OPs be directed to replace the vehicle or in the alternative to pay the entire cost of car alongwith upto date interest and further OPs be also directed to refund Rs.23890/- + Rs.6502/- which have been charged by the OPs from the complainant alongwith interest @ 12% p.a. from the date of payment till actual realization ;
(b) to pay Rs.1,00,000/- as damages and compensation to the complainant;
(c) to pay Rs.1,00,000/- as compensation for the harassment suffered by the complainant for not proper repair of the vehicle; and
(d) to pay adequate litigation expenses to the complainant.
Defence of the Opposite Parties
5. Upon notice, OP No.1 appeared and filed written reply by raising preliminary objections that complaint is frivolous, misconceived and has been formulated on wrong and misleading facts, devoid of any merits whatsoever and is liable to be dismissed. The complaint is liable to be dismissed on the sole ground of limitation, as the complaint has been filed beyond two years from the date of purchase of the car i.e. 22.03.2013 and warranty was only for two years. OP No.1 denied the allegation of manufacturing defect in the said vehicle. The complainant used the vehicle for 20487 kilometers as on 09.10.2015 for about 2 ½ years which could not have been possible, if vehicle has manufacturing defect. The complainant failed to show any evidence to prove any manufacturing defect in the vehicle. It was submitted that complainant was facing problem of smoke and injector due to use of adulterated fuel and accordingly fuel tank of the vehicle was cleaned by OP No.2 and was advised to use clean fuel for better performance. It was denied that the vehicle gave a poor mileage. The performance of the car depends on various factors such as terrain, driving habit, First Appeal No.392 of 2019 8 road and traffic conditions, improper use of clutch, brake, maintenance, tyre pressure, fuel quality running of electrical accessories (air conditioner) etc. The above said conditions affect the mileage performance of the vehicle. Poor mileage alone cannot be termed as defect in the vehicle in absence of any expert opinion. Even the warranty policy of OP No.1, which offers two years unlimited mileage warranty does not under any circumstances contemplate neither replacement of the vehicle nor refund of the purchase price. The relevant warranty policy lays down that "Authorized dealer shall either repair or replace, any Hyundai genuine part that is acknowledged by HMIL to be defective in material or workmanship within the warranty period at no cost to the owner of the Hyundai vehicle for parts or labour:" It is submitted that as per normal process, whenever vehicle was reported at workshop, all concerns as stated by complainant were recorded in repair order. OP No.1 denied that the defects could not be removed during entire period of warranty. All the concerns of complainant with respect to vehicle have already been resolved under warranty. The complainant has failed to show that how the vehicle could have run more than 20000 kms across 2 years and 6 months when the same was suffering from a manufacturing defect, which proves that there is no manufacturing defect in the vehicle. OP No.1 controverted the other averments of the complainant and prayed for dismissal of the complaint.
6. OP No.2 filed its separate written reply by raising preliminary objections that the complaint is not legally maintainable First Appeal No.392 of 2019 9 and is liable to be dismissed, as the complainant has attempted to misguide and mislead the District Commission, as such the complaint is liable to be dismissed. No cause of action ever arose in favour of the complainant against OP No.2. The complaint is abuse of the process of law, which has been filed by the complainant just to harm the reputation of OP No.2, as such is liable to be dismissed. It is averred that the said vehicle was purchased by the complainant on 15.03.2013 and warranty of vehicle has also been expired i.e. two years, have already been passed and the complaint is barred by limitation. The complainant and her family members had regularly driven the car for continuous period of more than two years and uptill 09.10.2015 when the car was brought last time to service centre of the replying OP, it had driven upto 20487 kms and how it can be said that car of the complainant is having manufacturing defect. Due to accident of the vehicle, the car was damaged and repair of the car was also done to the satisfaction of the complainant. As per terms and conditions of warranty, if vehicle of the customer gets damaged due to accident, warranty of the car gets lapsed. There is no manufacturing defect of any kind in the vehicle as alleged by the complainant. It is denied that as soon as vehicle was put on road, defects as mentioned in the complaint were observed and the defects were immediately reported to the replying OP. It is pertinent to mention here that vehicle of the complainant was firstly brought to the service centre on 24.04.2013 and job card was duly issued to the complainant for the same date but no such detail of alleged defects was ever reported by the complainant First Appeal No.392 of 2019 10 to the service centre. It is denied that replying OP had verbally assured that such defects would automatically be removed after first service as all minor adjustments are done during first service. It is admitted that the car was reported for Ist free service on 24.04.2013 and after service the vehicle was released on same evening but it was denied that defects were not removed. Since, no defects were ever reported and were not found by mechanics then question of removing such defects does not arise. It was admitted that vehicle was again reported to the workshop in the month of August 2013. It was denied that car was brought to service centre on 31.08.2013 rather the same was brought on 29.08.2013. If it is assumed that defects were not removed in the month of April 2013, then why the complainant had not brought the car for removing such defects during such long interval. The car was brought to the service centre on 29.08.2013 and complainant reported for black smoke and poor average. It is denied that engineers/foreman of workshop after thorough inspection of the vehicle had informed that injectors of the vehicle were defective and need replacement for which expenditure was projected about Rs.1,00,000/-. It is denied that when complainant had told that vehicle is in warranty then estimate was reduced to Rs.6502/- only. No such estimate for replacement of injectors was ever given. After necessary repair work and replacement of filter cartridge, car was released on 31.08.2013 and invoice was issued to the complainant for Rs.6502/- which was paid by the complainant without any objection. At the time of removing reported complaints engineers of replying OP found that First Appeal No.392 of 2019 11 black smoke in the car was result of using bad quality of diesel and the reason for such black smoke was duly informed to the husband of the complainant and he assured that good quality of diesel would be used in the car. At that time the car was handed over to the husband of the complainant in perfect running condition to his satisfaction and no objection was raised by him. It is denied that on the very next day vehicle was again brought to the service centre of the replying OP for removal of the said defects and OP No.2 kept the vehicle for 5-6 days and released on 31.08.2013 with assurance that defective injectors had been replaced. Filter cartridges were replaced for which replying OP had charged and issued invoice to the complainant. The vehicle was not having any problem as mentioned in the complaint and there was no requirement for replacement of the injectors as nobody from the replying OP had suggested for replacement of the injectors of the car. The vehicle was brought to service centre of replying OP for running repair and as such labour and other expenses of repair were charged from her. The complainant herself is not confirmed about her own case. On one hand she stated that vehicle was brought on 31.08.2013 and on same date vehicle was released and then again on next day i.e. again on 31.08.2013 vehicle was brought to service centre and where vehicle was kept for 5-6 days but no such detail of invoice and job card has been placed on record by her. The car of the complainant was duly checked by the engineers of the service centre of replying OP and it was informed that there is no need for replacement of the injectors and it was also informed that alleged First Appeal No.392 of 2019 12 black smoke in the car is due to usage of bad quality of diesel in the car and ultimately it was on 11.01.2014 when one of the family members of the complainant had come to receive the car and accordingly invoice dated 11.01.2014 was issued for which nothing was charged from the complainant. It was not informed to the complainant that due to excessive cold weather condition there is black smoke from the car. It is denied that complainant was informed that if she wants to replace the injectors of the car, she has to bear expenditure of Rs.1,00,000/- being cost of defective injectors. It is submitted that vehicle of the complainant was not having any such alleged problem of defective injectors, as such replying OP never suggested for replacement of injectors of the vehicle of the complainant. No such statement was ever given to the complainant by any of the engineers of the replying OP, as such same could not be treated as admission on the part of the replying OP. It is admitted that on 05.02.2014, car of the complainant was brought to the service centre of the replying OP and reported the complaint of black smoke and alignment problem. Accordingly job card was issued and bad quality of diesel was removed from the tank and same was replaced with good quality of diesel and filter cartridge was also replaced and accordingly, invoice dated 07.02.2014 of Rs.2570/- was issued which was duly paid by the complainant without any objection. Since the fuel in the car which was drained out was not demanded back as such same was not handed over to the complainant or her husband. Thereafter, complainant had brought her car to service centre of First Appeal No.392 of 2019 13 replying OP on 25.02.2014 for accidental repair and at the same time second free service was due and as such job card was also issued for second free service and for accidental repair. At that time husband of the complainant had again reported for black smoke and he had insisted for change of injectors of the car. Accordingly, as per request of the complainant, request was forwarded to OP No.1 for approval of change of injectors of vehicle and same was approved by the company and accordingly, four injectors were assembled for which no amount was charged from the complainant and it was also informed to the husband of the complainant that all such problems in the car are due to usage of bad quality of fuel and there is no defect in the car. Accordingly, invoice dated 21.03.2014 for second service of Rs.2539/- was issued to the complainant which was duly paid by the husband of the complainant. Another invoice of the same date 21.03.2014 was also issued for accidental repair without charging any amount. Thereafter, car was again brought to the service centre on 26.08.2014 for running repair but no defect of black smoke was reported by the complainant and then again car was brought on 15.10.2014 and again no such defect of black smoke was reported. But that time again it was found that dust was present in diesel used in the car and this fact was again brought to the notice of the husband of the complainant. Other complaints which were reported by the complainant were duly repaired and car was duly handed over to her in perfect running condition after replacing the fuel and filter cartridge and invoice dated 22.10.2014 for Rs.1994/- was issued to the complainant which was duly paid by her. First Appeal No.392 of 2019 14 Then it was on 12.03.2015 when car was brought to service centre for 3rd free service and at that time besides free service some repair work in the car such as Break greasing, Throatal body cleaning, engine flushing, balancing and lubrication was required and duly informed to the husband of the complainant for which expenses were to be paid by the complainant. But the husband of the complainant refused to perform such repair work and asked only for free service, as such free service was conducted and invoice dated 13.03.2015 for Rs.2240/- was issued, which was duly paid by the husband of the complainant. Again car was brought to service centre on 10.06.2015 for running repair and this time no such complaint of black smoke was ever reported by the complainant accordingly invoice dated 10.06.2015 was issued for which nothing was charged from the complainant. It is denied that on 07.10.2015 vehicle was again reported to authorize workshop of replying OP. It is denied that check in of the vehicle was intimated through SMS over mobile of the complainant. It is also denied that it remained under misuse by the replying OP for 2 days. In fact car was brought to service centre on 09.10.2015 and job card was duly issued and black smoke problem was reported by the complainant and after verification it was found that due to faulty and dirty diesel injectors and filter need to be cleared from another authorized centre and husband of the complainant had agreed to get it cleared from authorized centre at Chandigarh and had agreed to pay for it. As per request and approval of the husband of the complainant, injectors and other parts were sent to authorize service centre namely First Appeal No.392 of 2019 15 JAECO who had thoroughly checked the injectors and other parts and had found that problem has been occurred due to usage of bad and dirty fuel used in the car. Accordingly car of the complainant was ready after repair on 14.10.2015 and invoice dated 14.10.2015 was issued for Rs.23890/- which was duly paid by the husband of the complainant. It is denied that no detail of expenditure of Rs.18000/- was given to the complainant. There is no manufacturing defect in the car of the complainant. The complainant is not entitled to replacement of the car and compensation. OP No.2 controverted the other averments of the complainant by denying any deficiency in service and prayed for dismissal of the complaint with heavy cost.
Evidence of the parties and finding of the District Commission
7. The complainant tendered in evidence her affidavit Ex.C-1, copy of job-sheet Ex.C-2, copy of job-sheet dated 15.03.2013 Ex.C-3, copy of cash invoice dated 31.08.2013 Ex.C-4, copy of job-sheet Ex.C- 5, copy of cash invoice dated 07.02.2014 Ex.C-6, copy of job-sheet dated 14.03.2014 Ex.C-7, copy of cash invoice dated 21.03.2014 Ex.C-8, copy of job sheet dated 09.10.2015 Ex.C-9, copy of invoice dated 14.10.2015 Ex.C-10, copy of receipt dated 14.10.2015 Ex.C-11, copy of legal notice dated 18.02.2014 Ex.C-12.
8. To rebut the evidence of the complainant, OP No.1 tendered in evidence affidavit of Manish Kumar, Deputy Manager Ex.OP-1, copy of Hyundai Warranty Policy Ex.OP-1/2.
9. OP No.2 got summoned and examined Sh. Vishal Mehta, Sale Manager of JAECO Rebuilding Systems Pvt. Ltd., Manimajra, First Appeal No.392 of 2019 16 Chandigarh, who produced documents Ex.OP2/1 to Ex.OP2/5 i.e. Job card dated 11.10.2015 issued by JAECO, Chandigarh Ex.OP2/2, copy of invoice dated 12.10.2015 Ex.OP2/2, copy of investigation report dated 15.10.2015 Ex.OP2/3 and Ex.OP-2/4 alongwith photographs of the defective parts Ex.OP2/5 (colly). He was also cross-examined by the complainant. OP No.2 also tendered in evidence affidavit of Rajesh Kakaria, Accounts Manager Ex.OP2/6, details of service of the said vehicle Ex.OP2/7, copy of cash invoice dated 24.04.2013 Ex.OP-2/8, copy of first service job card order Ex.OP-2/9, copy of invoices and job-sheets Ex.OP2/10 Ex.OP2/16, copy of bill dated 21.03.2014 for 4 fuel injectors Ex.OP2/17, copy of material requisition slips Ex.OP2/18 to Ex.OP2/20, copy of job sheet dated 14.03.2014 Ex.OP2/21, copy of invoice Ex.OP2/22, copy of material requisition slip Ex.OP2/23, copy of job-sheet (colly) Ex.OP2/24, copy of credit card invoice dated 13.03.2015 Ex.OP2/25 and bill Ex.OP2/26, copy of job-sheets/cards, invoices and material requisition slip, etc. Ex.OP2/27 to Ex.OP2/32, copy of Hyundai Warranty Policy Ex.OP2/33, copy of resolution Ex.OP2/34, copy of general power of attorney Ex.OP2/35 and affidavit of Suresh Kumar, Service Manager Ex.OP2/36.
10. The District Commission, after going through the same and hearing learned counsel on their behalf, allowed the complaint of the complainant, vide impugned order. Feeling aggrieved against the order, the above referred appeal has been filed by the appellant/OP No.2. OP No.1 also filed separate First Appeal No.463 of 2019 against the same impugned order.
First Appeal No.392 of 2019 17Contentions of the parties
11. We have heard learned counsel for the parties and have carefully gone through the records of the appeals and written arguments submitted by the appellants in both the appeals.
12. Learned counsel for the appellant/OP No.2 vehemently contended that the District Commission has failed to consider the facts of the case and erred in passing the judgment without adjudicating upon the issue of limitation. The complaint filed by the complainant was hopelessly time barred, as the complainant purchased the vehicle on 15.03.2013 and defects in the vehicle had come to his notice, when he put the vehicle on road and the cause of action starts from the date of purchase i.e. from 15.03.2013 and the limitation ends on 14.03.2015 i.e. after two years, but the complaint has been filed after more than 9 months beyond the limitation period, as per Section 24-A of the Act. The District Commission has erroneously held that OP failed to remove the defects from the vehicle. Learned counsel contended that there is no inherent manufacturing defect in the vehicle and the complainant misstated and distorted the facts, whereas the complainant herself is negligent in handling the said vehicle due to usage of adulterated fuel. Had there been any inherent manufacturing defect in the injections then the same would have been arisen since the very beginning. The complainant reported the defect of black smoke for the first time in August, 2013, which was after six months of the purchase of the car, which shows that the injectors have been affected by usage of adulterated fuel. The appellants/OPs replaced the First Appeal No.392 of 2019 18 said injectors free of cost in March, 2014. Thereafter, for one year and seven months no complaint of black smoke was reported. It was only on October 9, 2015, when complainant reported the black smoke issue. On 15.10.2014, when vehicle had come for running repair, no defect of black smoke was reported. Thereafter, the injectors and other parts had been sent to Chandigarh with the permission of the complainant for clearing purpose and the authorized service centre namely JAECO, found that problem reoccurred due to usage of dirty fuel in the car. But the District Commission has not appreciated these facts and without application of judicial mind passed the impugned order. The District Commission has erred in law by ordering replacement after almost six years of the purchase of the vehicle. Whereas, in October 2015, the vehicle had covered more than 20,000 km, which shows that vehicle was roadworthy and was running perfectly fine. The said vehicle has no defect and whatever defect had surfaced that had been rectified within warranty. There is no expert evidence in this case from where manufacturing defect in the vehicle can be inferred. When it is admitted fact that vehicle is manufactured by the manufacturer not by the dealer, then in case the District Commission arrives at conclusion that vehicle is having manufacturing defect, then liability cannot be shifted upon the appellant/OP No.2 by any process of reasoning. The District Commission has wrongly held that vehicle has been brought to the service centre several times and the defect was not removed, thus, it is deficiency in service. Learned counsel contended that the said defect was occurred due to usage of First Appeal No.392 of 2019 19 adulterated fuel in the said car by the complainant. The District Commission has wrongly passed the order for replacement of the car, which is against the facts and warranty policy of the vehicle. Learned counsel relied upon following judgment of the Hon'ble Supreme Court:
"Maruti Udyog Limited Vs. Susheel Kumar Gabgotra & another" 2006 AIR (SC)-1586 Learned counsel prayed for acceptance of the appeal and setting aside the impugned order of the District Commission.
13. Learned counsel for respondent No.2 (appellant in F.A. No.463 of 2019) contended that there is no report of expert on record to prove that there is manufacturing defect in the vehicle, whereas the said vehicle had already covered an extensive mileage of 20487 kilometers till October, 2015 and the said vehicle was brought by the complainant in the workshop of OP No.2 and she had not raised a single defect after repair conducted on the said vehicle, but the District Commission has failed to consider it. Learned counsel further contended that the complainant filed the complaint after two years from the date of purchase of the said vehicle, being barred by limitation. As per the warranty policy, OP No.1 is not liable to replacement of the vehicle or refund of the purchase price. Learned counsel relied upon following judgments:
1. "Tata Motors Vs. Rajesh Tyagi & Another" (RP 1030/2008) of Hon'ble National Commission
2. "M/s Hero Honda Ltd. Vs. K.B. Murleedharan" reported in 1986-94 (NS) 955
3. "Maruti Udyog Limited Vs. Nagender Prasad Sinha & Anr" R.P. No.674/2004, 676 and 677 of 2004 of Hon'ble National Commission First Appeal No.392 of 2019 20
4. "Sahib Singh Vs. Sonu" 2006(2)CPC-115
5. "Ishwarlal Amarnai Vs. Hero Puch & Anr." III(2011)CPJ-
132 NC
6. "Sushila Automobiles Pvt. Ltd. Vs. Dr. B.N. Prasad"
[MANU/CF/0076/2010]
7. "Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr." I(2006)CPJ-3(SC)
8. "Classic Automobiles Vs. Lila Nand Mishra"
(2010)CPJ-235(NC)
9. "Hyundai Motor India Limited Vs. Surbhi Gupta", RP No.2854 of 2014 of Hon'ble National Commission Learned counsel denying any deficiency in service on the part of OP No.1 prayed for acceptance of the appeal and setting aside the order of the District Commission.
14. Learned counsel for respondent No.1/complainant argued to the contrary that despite repeated requests and repair of the said vehicle, the OPs failed to remove the defect of excessive smoke, fuel efficiency, etc. Due to this reason, the respondent No.1/complainant filed the complaint before the District Commission and after going through the documents on record and pleadings of the parties, the District Commission has rightly passed the order 20.03.2019 directing the OPs to replace the vehicle in question with same make and model or to refund the price of the vehicle and also burdened the OPs with compensation amount of Rs.10,000/- on account of harassment and mental agony, besides Rs.7000/- as litigation expenses payable to the complainant. Learned counsel prayed for dismissal of the appeal. First Appeal No.392 of 2019 21 Consideration of Contentions
15. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties and also perused the record of the case.
16. It is an admitted fact that complainant purchased the vehicle in question from OP No.2 on 15.03.2013, manufactured by OP No.1. On the first day of purchase of the said vehicle, she noted some defects/problems and immediately reported the matter to OP No.2, which verbally assured that such defects would automatically remove after first service. To prove the said defects in the said vehicle, the complainant relied upon job-sheets Ex.C-2, Ex.C-3, Ex.C-5, Ex.C-7 dated 14.03.2014 and Ex.C-9 dated 09.10.2015 and the OPs failed to rebut these documents on the record. After purchasing the said new vehicle on 15.03.2013, the complainant continuously reported the said defects/problems to the workshop of OP No.2 time and again, vide above job-sheets, but workshop of OP No.2 failed to remove the above said defects/problems within the warranty period. Even in written arguments, OP No.2 admitted that the injectors of the said vehicle have been replaced free of cost in March, 2014. It is pertinent to mention that within one year, OP No.2 changed the injectors of the said vehicle, which proves that there was a defect in the said injectors and to remove the same OP No.2 changed the same with the consent of OP No.1 free of cost, as admitted by the OPs. Thereafter, the complainant did not approach OP for more than one and half years with the complaint of above said defects and thereafter she First Appeal No.392 of 2019 22 approached OP No.2 on 09.10.2015, vide Ex.C-9 with the complaint of engine knocking and black smoke. The plea of the OPs that at this time the warranty period of the said vehicle was over and due to this reason they charged the amount of Rs.23,890/- from the complainant, vide Ex.C-11. It is pertinent to mention that OP No.2 changed the said injector of the said vehicle in March, 2014, but it failed to mention the warranty of that new four injectors, which were replaced in March, 2014, which were got damaged and due to this reason OP No.2 had to send the same to JAECO, service centre at Chandigarh for repair. OP No.2 relied upon investigation report dated 15.10.2015, Ex.OP2/3 of JAECO, Chandigarh wherein it is reported that "parts are defective/worn out due to fuel adulteration." OP No.2 also relied upon invoice dated 12.10.2015, Ex.OP2/2 for an amount of Rs.18,000/- charged by JAECO, the service centre at Chandigarh. But they failed to prove it on record that they supplied the above said investigation report Ex.OP-2/3 and bill Ex.OP2/2 to the complainant. Moreover, the OPs contended that the complainant has used the adulterated fuel, due to which the said problem occurred and OP No.2 removed the adulterated diesel from the tank of the said vehicle, when it had come for service on 05.02.2014. But OP No.2 failed to send any sample to the Lab/checking centre to check the percentage of adulteration and simply relied upon investigation report Ex.OP-2/3 issued by JAECO, the service centre at Chandigarh, which is not a laboratory for checking the adulteration of the diesel, petrol, etc., wherein it is nowhere stated that the diesel of the said vehicle was sent to First Appeal No.392 of 2019 23 laboratory/agency for checking the adulteration ratio in the said diesel, which was put by the complainant in her car. In view of above, it is clear that under the warranty period the complainant complained of above said defects, which were not removed by the OPs and ultimately OP No.2 changed the injectors of the said vehicle in March, 2014, and thereafter the complainant also complained of said defects, vide Ex.C-9, as such the cause of action is continuing one, because the OPs failed to remove the defect in the said vehicle and the complaint of the complainant is within limitation.
17. The District Commission has directed OPs to replace the vehicle in question with the same make and model or to refund the price of the vehicle. Now, we have to decide that whether the complainant is entitled for replacement or not? A perusal of record, reveals that the complainant has driven the said vehicle upto 20,487 kilometers within two and half years from the date of purchase of the said car, as it clear from Ex.C-10, job-sheet dated 14.10.2015. It is also pertinent to mention that for removing the alleged defects, OP No.2 changed the four injectors of the said vehicle in March, 2014 and complainant admitted the same, thereafter the complainant had driven the vehicle for more than one and half year, but she did not approach OPs with any problem of above said nature. The complainant failed to produce on record any evidence that she ever approached OPs during the said period with such complaint, which proves that the said vehicle was running smoothly during that period. Therefore, it cannot be said the said vehicle has manufacturing defect and not roadworthy. Such First Appeal No.392 of 2019 24 like defects can be due to natural wear and tear also. As such the complainant is not entitled to replacement of the said vehicle or the refund of the price after lapse of warranty. Moreover, the OPs relied upon various judgment in support of their version. Hon'ble Supreme Court in case Maruti Udyog Limited's case (supra) held that purchaser can ask for replacement of defective part of the vehicle and he cannot ask for the replacement of the vehicle. The District Commission while deciding the complaint ignored the above said aspects of the case and also the above law laid down by the Hon'ble Supreme Court. In view of law laid by Hon'ble Supreme Court and our above discussion, the complainant is not entitled to replacement of the car or refund of the price of the car and is entitled to only replacement of defective part. There is no doubt that the said vehicle suffered from problem from the first day of its purchase and on first service, workshop of OP No.2 also cleaned the injectors of the said vehicle, vide Ex.OP2/9. Thereafter, the said problems remained the same and to remove the same OP No.2 replaced the injectors of the said vehicle in March, 2014, as discussed above. Despite repeated services, OPs failed remove the said defects, they sold the said vehicle to the complainant with defective parts and due to this the complainant complained of said problems in job-cards i.e. Ex.C-2, C-3, C-5, C-7, C- 9, this is a deficiency in service on their part. The OPs failed to remove the said defects despite keeping the car in the workshop, as alleged by the complainant, during the warranty period and due to that reason after the warranty period the complainant had to incur expenses of First Appeal No.392 of 2019 25 Rs.23,890/-, vide Ex.C-11 for removal of the said defect. As such, the complainant is entitled to replacement of the defective parts free of cost. OP No.1 relied upon authority of Hon'ble Supreme Court in case "Tata Motors Ltd. Vs. Antonio Paulo Vaz and another" Civil Appeal No.574/2021, decided on 18.02.2021. This authority is not applicable to this case, because in this case OP No.1 failed to place on record any evidence that on which date he had hand over the said vehicle to the dealer and the dealer sold the same after long time.
18. OP No.2 is also deficient in service for retaining the diesel, which was drained out from the said vehicle by OP No.2 in the first week of February, 2014, when complainant took the vehicle to its workshop. It is pertinent to mention that the said drained out diesel was not sent by OP No.2 for checking of ratio of adulteration. The plea of OP No.2 is that the complainant did not demand the drained out diesel, so it retained the same. This plea of OP No.2 is not acceptable, because it was its duty to return the drained out diesel to the complainant. This is also a deficiency in service on its part and the complainant is entitled to recover the price of the said diesel along with interest @7% per annum. The plea of the complainant with regard to low average is not maintainable. The low average of the vehicle also depend upon various factors like driving skill, traffic, usage of clutch and break, etc.
19. In view of our above discussion, we partly allow the appeals of the appellants and the OPs are directed to replace the defective parts of the said vehicle to remove the problem of black First Appeal No.392 of 2019 26 smoke and knocking sound of engine free of cost in the presence of Automobile Engineer/Technical Expert of a reputed University, which will be appointed by OPs with the consent of complainant, to her satisfaction. It is also made clear that the said Automobile Engineer/Technical Expert will certify the removal of the above said problems/defects and OPs shall bear the fees of the said Automobile Engineer/Technical Expert. OP No.2 is further directed to pay the price of said 20 litre diesel, as per market rate i.e. Rs.71/72/- per litre at that time, which rounded of Rs.1450/- to the complainant alongwith interest @ 7% per annum from February, 2014 to its actual realization. As such, the impugned order of the District Commission is modified to the extent above and the remaining order with regard to compensation and litigation expenses will remain the same.
20. The appellant in First Appeal No.392 of 2019 had deposited a sum of Rs.25,000/- at the time of filing of the appeal and further deposited Rs.2500/- as cost, as per order dated 04.07.2019 and this amount is payable to respondent No.1/complainant. The appellant further deposited an amount of Rs.3,75,000/- in compliance with zimini order of this Commission. These amounts, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith and the District Commission will release the amounts to the parties, as per above order and may pass the appropriate order in this regard after the expiry of limitation period in accordance with law. First Appeal No.392 of 2019 27
21. The appellant in First Appeal No.463 of 2019 had deposited a sum of Rs.25,000/- at the time of filing of the appeal with this Commission. This amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith and the District Commission will release the amount, as per above order to the parties concerned and may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
22. Compliance of this order shall be made by the OPs after expiry of limitation from the date of receipt of certified copy of the order.
23. The above referred appeals could not be decided within stipulated period due to heavy pendency of court cases and pandemic of Covid-19.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (KIRAN SIBAL) MEMBER March 16, 2021.
(MM)