State Consumer Disputes Redressal Commission
M/S A.B.Motors Pvt. Ltd vs Mrs.Anjana Wadhawan on 19 July, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 211 of 2013 Date of Institution : 24.05.2013 Date of Decision : 19.07.2013 M/s A.B.Motors Pvt. Ltd., 53, Industrial Area, Phase II, Chandigarh. Appellant/Opposite Party No.1 V e r s u s 1. Mrs.Anjana Wadhawan w/o Sh.Shashi Kant Wadhawan, R/o House No.114, Sector 10-A, Chandigarh. ....Respondent no.1/complainant 2. Ford India Pvt. Ltd., S.P.Koil Post, Chengalpattu - 603204, India. ....Respondent no.2/Opposite Party No.2 Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. H.S. Bedi, Advocate of the appellant. Sh. Baljit Singh, Advocate for respondent no.1. Sh. Karan Nehra, Advocate for respondent no.2 -------------------------------------------------------------------------------------------- First Appeal No. : 255 of 2013 Date of Institution : 17.06.2013 Date of Decision : 19.07.2013 Ford India Pvt. Ltd., S.P.Koil Post, Chengalpattu - 603204, India. Appellant/Opposite Party No.2 V e r s u s 1. Mrs.Anjana Wadhawan w/o Sh.Shashi Kant Wadhawan, r/o House No.114, Sector 10-A, Chandigarh. ....Respondent no.1/complainant 2. M/s A.B.Motors Pvt. Ltd., 53, Industrial Area, Phase II, Chandigarh. ....Respondent no.2/Opposite Party No.1 Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. Karan Nehra Advocate of the appellant. Sh. Baljeet Singh, Advocate for respondent no.1. Sh., Harjot Singh Bedi, Advocate for respondent no.2 BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This order shall dispose of the aforesaid two First Appeal Nos.211 of 2013, titled as M/s A.B. Motors Vs. Mrs. Anjana Wadhawan and Anr. and 255 of 2013, titled as Ford India Pvt. Ltd., Vs. Mrs. Anjana Wadhawan and Anr., arising out of the order dated 23.04.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as District Forum only), vide which, it partly accepted Complaint Case No.218 of 2012- Mrs. Anjana Wadhawan Vs. M/s A.B. Motors and Anr., and directed the Opposite Parties, jointly and severally, as under:-
12. For the reasons recorded above, we find merit in the complaint and the same is partly allowed as under :-
i) OP No.1 is directed to refund the promised discount of Rs.85,000/- to the complainant.
ii) OPs shall repair the car of the complainant and hand over the same to the complainant in perfect working order without any starting problem or other defect with an extended warranty for one year.
iii) OPs shall also make payment of a compensation of Rs.1 lac to the complainant for mental agony and harassment.
iv) OPs shall also make payment of an amount of Rs.11,000/- towards litigation expenses.
Except for the amount of Rs.85,000/-, for which, only OP No.1 is liable, the liability in respect of direction No.(ii) to
(iv) shall be joint and several.
13. This order shall be complied with by OPs within one month from the date of receipt of its certified copy, failing which, OP No.1 shall make the payment of Rs.85,000/- along with interest @9% p.a. from the date of purchase of the car i.e.16.3.2012 till its realization. In case of non compliance of the remaining directions, within one month from the date of receipt of its certified copy, OPs shall be jointly and severally liable to make payment of the price of the car and amount mentioned above with interest @9% p.a. from the date of purchase of the car till realization, besides costs of litigation, as mentioned above.
2. The facts, in brief, are that the complainant visited the showroom of Opposite Party No.1, alongwith her husband, on 15.`3.2012, where its Sales Manager showed various models of Ford Fiesta Car. She decided to purchase the Classic Diesel model of Ford Fiesta Car, and made booking for the same, on 15.3.2012, on payment of total price of the said car. The Sales Manager convinced the complainant and her husband that, in case, they opted for the new Ford Fiesta Titanium + diesel, he would ensure that they got a substantial cash discount, and, further if they bought the said car manufactured, in the year 2011, he would further increase the cash discount. The complainant and her husband were taken in, by such assurances, made by the Sales Manager of Opposite Party No.1, as a result whereof, they cancelled the booking of the Ford Fiesta Classic Diesel Car, worth Rs.7,24,000/-, and opted to buy the Ford Fiesta Titanium + Diesel Car, which he (Sales Manager), represented was worth Rs.10,59,592/- ex-showroom and stated that he would give a cash discount of Rs.85,000/-The Sales Manager also promised that the said price included the extended warranty upto four years. It was further stated that, on the allurement of the Sales Manager of Opposite Party No.1, on 16.3.2012, the complainant paid the balance amount and bought Ford Fiesta Titanium + Diesel Car.
3. When the complainant went home and saw the invoice Annexure C-1 of the said car handed over to her, the price of the same mentioned therein was Rs.8,66,207/- plus VAT @12.5% amounting to Rs.1,08,276/-, and she was charged a total sum of Rs.9,74,483/-. The said invoice did not mention any cash discount, and the warranty was only for two years, instead of four years, as promised by the Sales Manager of Opposite Party No.1. The complainant was shocked to know this. She confronted the officials of Opposite Party No.1, as to how it had happened, upon which they gave a quotation/proforma invoice dated 19.3.2012 Annexure C-2, stating the price of the car to be Rs.10,59,592/-, and, after discount of Rs.85,000/-, the total invoice value was taken to be Rs.9,74,592/-It was further stated that the officials of Opposite Party No.1, also gave another quotation/proforma invoice Annexure C-3, on 19.3.2012, for the same car manufactured, in 2012, which showed the same price, as mentioned in Annexure C-2 i.e. Rs.10,59,592/-. It was further stated that the officials of Opposite Party No.1, completely went back, on their promise, of the extended warranty to be provided for four years. It was further stated that the complainant sensed something amiss, and approached another dealer of the same car manufacturer, on 20.3.2012 and obtained a quotation Annexure C-4, wherefrom, she came to know that the price of even a car manufactured, in the year 2012, with four years of extended warranty, was to the tune of Rs.10,27,340/-. It was further stated that the officials of Opposite Party No.1, misrepresented the actual price of the car, purchased by the complainant, and induced her to purchase the same, without actually giving any of the promised discount to her.
4. It was further stated that the car purchased by the complainant, also suffered from inherent manufacturing defects and it became a great headache for her. The voice control system, telephone audio climate control etc., were not working and the left hand side mirror cap needed replacement. It was further stated that the engine of the said car was also giving missing problem, while starting the same, in the morning. The complainant went to Opposite Party No.1 and a job card dated 19.3.2012 Annexure C-5 was prepared, but she was asked to come again. The complainant again went, to the workshop of Opposite Party No.1, on 23.3.2012, whereupon, job card Annexure C-6 was prepared, in which, the problems mentioned by the complainant, were confirmed, but the same could not be rectified. The complainant was told to approach Opposite Party No.1, after one month.
5. On 9.4.2012, the husband of the complainant was on his way to Ludhiana, when the lower engine cover of the car, partly came off, on its own, and only then, it was discovered that the mandatory tool kit was not supplied, by Opposite Party No.1. The car had to be dragged for quite a distance, where a rope was managed to tie the same. The car was taken to the workshop at Ludhiana, and the payment was made, as per the payment invoice dated 10.4.2012 Annexure C-7. It was further stated that the same being a minor defect, was ignored by the complainant.
6. It was further stated that, on 7.5.2012, again the car, in question, did not start, in the morning, and it was towed to the workshop of Opposite Party No.1, vide vehicle condition report form dated 7.5.2012 Annexure C-8. The car was kept in the workshop of Opposite Party No.1 overnight, and 10 defects were detected, as per Annexure C-9. The car was delivered to the complainant, on 8.5.2012, vide repair order Annexure C-10. It was further stated that the defects, in the voice controller and voice mail could not be rectified. It was further stated that the car was emitting a foul smell, when the AC was not in running condition.
7. It was further stated that, on 16.5.2012, again the car failed to start, in the morning, and the same was towed to the workshop of Opposite Party No.1, whereupon, repair order Annexure C-11, was prepared. The car was kept for repairs, by Opposite Party No.1, for 4 to 5 days, and during that time also, Opposite Party No.1, faced the same problem, but it offered no solution, and suggested the change of the entire wiring system. It was further stated that, it was a huge shock to the complainant, as the same would have meant, dismantling the whole car and its fittings. It was further stated that emails Annexure C-12 and C-13, in that regard, were sent to Opposite Party No.2, by the complainant.
8. On 8.8.2012, the husband of the complainant, took the car, for its second free service, and various problems, in the same, were told to Opposite Party No.1, but the same were not rectified, due to lack of proper apparatus or spare parts. Email Annexure C-14 was also sent to Opposite Party No.2, by the complainant, but the said defects could not be rectified.
It was further stated that the car, in question, again stopped on 14.9.2012 and 18.9.2012, and it was towed to the workshop of Opposite Party No.1, vide job cards Annexure C-15 to C-17. It was further stated that even on 21.9.2012, the car failed to start, in the morning, for which it had again been towed to the workshop of Opposite Party No.1, for repairs.
9. It was further stated that all these defects, occurred in the vehicle, during the warranty period. It was further stated that the Opposite Parties were asked to replace the defective car, or to refund the price thereof, but they refused to do so. It was further stated that since the vehicle suffered from inherent manufacturing defects, the Opposite Parties were completely deficient, in rendering service, as also indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the promised cash discount, to the tune of Rs.85000/-, as also difference of amount of the model without voice control, to the tune of Rs.26500/-; cost of extended warranty for four years, to the tune of Rs.13500/-; compensation for mental agony and physical harassment, to the tune of Rs.2 lacs;
and cost of litigation to the tune of Rs.25000/-.
10. Opposite Party No.1, in its written version, pleaded that it had been unnecessarily dragged in litigation, as no cause of action had arisen against it. It was stated that the complainant visited the showroom of Opposite Party No.1, in March, 2012, and she selected Fiesta Diesel 1.5 Titanium + Model in purchasing. It was told to the complainant, that the product was available for Rs.10,59,592/- ex-showroom price, including VAT and logistic charges, and the same was of 2011 model. It was further stated that, it was also told to the complainant, that if she was interested in purchasing the said car, she would be given a cash rebate of Rs.85,000/-. It was further stated that the complainant gave her consent and she was handed over the car, when she made the payment of Rs.9,74,483/- and a discount of Rs.85,000/- was given to her. It was further stated that the cost of model fiesta diesel 1.5 titanium + including VAT was Rs.10,55,802/- in November, 2011, and after adding the temporary number charges and logistic charges i.e. Rs.3,790/-, the total ex-showroom price of the said vehicle was Rs.10,59,592/-. It was further stated that Opposite Party No.1, had sold the vehicle, to the complainant, as per the promise of cash discount of Rs.85,000/-, on the ex-showroom price of the same (vehicle) and no other benefits, were offered to her. It was further stated that the complainant took the vehicle, after her satisfaction, that it was road worthy. It was further stated that Opposite Party No.1 was a dealer of Opposite Party No.2 and it had no role to play, in any of the alleged manufacturing defects of the product. It was further stated that the story of booking of ford fiesta classic diesel car, worth Rs.7,24,000/, was a concocted one. It was further stated that the quotations Annexure C-2 and Annexure C-3 explained the fact, that the price of the product, inclusive of VAT and octroi, was Rs.10,59,592/- and the rebate was of Rs.85,000/-. It was denied that warranty of four years, was promised, to be given to the complainant, in respect of the vehicle aforesaid, purchased by her. It was further stated that the retail price of 2012 model car was Rs.10,10,808/- including VAT, fixed by Opposite Party No.2 and the vehicle sold to the complainant was even then at the lesser price. It was also denied that the vehicle was having the defects of voice control system, telephone audio climate control etc. It was also denied that the car was giving a miss, at the time of start of the same, in the morning. It was further stated that, in Annexure C-5 only, the complaint of voice control system, was made and the same was checked and the Engineer Mr.Plani kept the complaint under observation. The left hand side mirror was dislocated, due to the negligence of the complainant, which was refitted after making the necessary adjustments. It was further stated that the vehicle gave starting trouble, in the morning, due to the negligent driving of the complainant. It was further stated that, an error was indicated, in the power control module system, of the car, which was rectified. It was further stated that the reason behind non-functioning of voice control system, was mismatch of the diction and observation of the voice and pronunciation of the complainant, by the computerized system of the voice control, duly installed in the vehicle. It was further stated that the system started following the voice and pronunciation of the complainant, and was responding properly, since 16.5.2012. It was further stated that the mandatory tool kit, including hack rod and wheel spanner, were provided by the manufacturer. It was further stated that the entire vehicle was checked, as and when, the same was brought to the workshop of Opposite Party No.1, and no computerized error was found. It was admitted that the vehicle was brought, to the workshop of Opposite Party No.1, on 16.5.2012. It was further stated that the complainant was in the habit of making un-necessary complaints, regarding the defects, in the car. It was denied that the vehicle of the complainant was suffering from inherent manufacturing defects, as mentioned in the complaint. It was further stated that the vehicle had already been driven to the extent of 14000 kms, even after the filing of the present complaint. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
11. Opposite Party No.2, in its written version, pleaded that the emails sent by the complainant, to it, were duly replied to, and she was asked to give her necessary approvals for certain repair works, to be carried out by Opposite Party No.1, but she did not do so. It was stated that, since the said approval was not given by the complainant, another email was sent to her, but she ignored the same. It was further stated that the copy of job card dated 16.5.2012, prescribed replacement of the wiring. It was further stated that the complainant requested to deliver the vehicle, in question, without carrying out the prescribed repair work, by Opposite Party No.1. It was further stated that Opposite Party No.2 is the manufacturer and its relationship with Oppsoite Party No.1 was on principal to principal basis. It was further stated that Opposite Party No.2, could not be held liable for any acts of omission and commission, on behalf of Opposite Party No.1. It was denied that the car, in question, suffered from any inherent manufacturing defect. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
12. In her rejoinder, the complainant reasserted all the averments, contained in the complaint and repudiated those, contained in the written version of the Opposite Parties. It was stated that right from the day one of the purchase of car, in question, it had to be repeatedly taken to the workshop of Opposite Party No.1, for rectification of defects, mentioned in the complaint, but the same were not rectified which mean that the same suffered from inherent manufacturing defects.
13. The Parties led evidence, in support of their case.
14. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, partly accepted the complaint, in the manner, referred to, in the opening para of the instant order.
15. Feeling aggrieved, First Appeal Nos.211 of 2013, titled as M/s A.B. Motors Vs. Mrs. Anjana Wadhawan and Anr. and 255 of 2013, titled as Ford India Pvt. Ltd., Vs. Mrs. Anjana Wadhawan and Anr., have been filed by the appellants/Opposite Party No.1 and 2, respectively, for setting aside the order impugned.
16. We have heard the Counsel for the parties, on both the appeals, and, have gone through the evidence, and record of the cases, carefully.
17. The Counsel for the appellants, in both the appeals, submitted that the price of the car, which was purchased by the complainant, as per Annexure C-2, the quotation was Rs. 10,59,592/- and after giving the promised discount of Rs.85,000/- it came to be Rs. Rs.9,74,592/-, which was paid by the complainant.. It was further submitted that the total price of the car was not Rs.9,74,483/-, as mentioned in Annexure C-1. It was further submitted that, no doubt, the complainant had to bring the vehicle, to the workshop of Opposite Party No.1, again and again, for rectification of minor defects and the same were rectified. It was further submitted that when the complainant was asked to leave the vehicle, in the workshop of Opposite Party No.1, for the purpose of changing the wiring of the same, she refused to give approval and took away the car, as it is. It was further submitted that the defects pointed out, by the complainant, in the complaint, as also in the job cards, did not go to establish that the same were inherent manufacturing defects. It was further submitted that no expert evidence was produced, on the record, to prove that the car, in question, suffered from inherent manufacturing defects. It was further submitted that the District Forum, was wrong, in accepting the complaint. It was further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
18. On the other hand, the Counsel for respondent no.1/complainant, in both the appeals, submitted that, it was promised by the Sales Manager of Opposite Party No.1, that he shall give discount of Rs.85,000/-, if the complainant purchased the car, of 2011 model. He further submitted that Annexure C-1 retail Invoice was given to the complainant. He further submitted that when the retail invoice was perused by the complainant, on reaching home, she was shocked to know that the actual price of the car, was Rs.9,74,483/- which included VAT and no discount of Rs.85,000/-, had been given, as per the said retail invoice. He further submitted that the quotation/proforma invoices Annexures C-2 and C-3, generated later on, by Opposite Party No.1, could not belie the retail invoice Annexure C-1. He further submitted that by not giving discount, of Rs.85,000/-, on the price mentioned in retail invoice Annexure C-1, the Opposite Parties indulged into unfair trade practice. He further submitted that since the car had to be taken to the workshop of Opposite Party No.1, a number of times, for the rectification of defects, mentioned in the complaint, as also the job cards, this fact alone was sufficient to prove that it suffered from inherent manufacturing defects. He further submitted that, as such, the complainant was entitled to the refund of price of the car, or replacement of the same and the District Forum was right, in granting one of such reliefs. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
19. The first question, that falls for consideration, is, as to whether, the complainant was entitled to the discount of Rs.85,000/- as promised by the Sales Manager of Opposite Party No.1, on the retail invoice amount of Rs.9,74,483/- mentioned, in Annexure C-1. It is evident, from Annexure CA receipt dated 15.03.2012, coupled with the affidavit of the complainant, that earlier, she booked a Ford Fiesta car of Classic Diesel model and made payment of Rs.7,24,483/-. When the Sales Manager of Opposite Party No.1, convinced the complainant and her husband of substantial cash discount, to the tune of Rs.85,000/-, on the purchase of Ford Fiesta Titanium + diesel car manufactured in 2011, she cancelled the booking of Ford Fiesta Classic Diesel car and opted to buy the Ford Fiesta Titanium + diesel car. According to Opposite Party No.1, the price of the said car was Rs.10,59,592/-, including VAT, and the same was of 2011 model. The Sales Manager of Opposite Party No.1, promised to give a cash discount of Rs.85,000/-, and extended warranty upto four years. The complainant bought Ford Fiesta Titanium + diesel car and paid an amount of Rs.2,50,000/-, on 16.3.2012, vide receipt Annexure C-B. The total amount of Rs.9,74,483/-, was paid by the complainant to Opposite Party No.1, for the purchase of car, in question. However, in the retail invoice dated 16.3.2012 Annexure C-1, issued by Opposite Party No.1, to the complainant the price of Ford Fiesta Titanium + diesel car was shown to be Rs.8,66,207/- +VAT @12.5% amounting to Rs.1,08,276/-, Opposite Party No.1 charged a total amount of Rs.9,74,483/- from the complainant. It was Annexure C-1 retail invoice, which was, in the first instance given by Opposite Party No.1, to the complainant. In Annexure C-1, the retail invoice which was, in the first instance, given to the complainant, at the time of purchase of the car, there was no mention of discount of Rs.85,000/-, as promised by the Sales Manager of Opposite Party No.1. It was, on the basis of this retail invoice, that the complainant confronted the officials of Opposite Party No.1, and, thereafter, they gave a quotation/proforma invoice dated 19.3.2012 Annexure C-2, according to which, the price of the Ford Passenger Car of the model of 2011 was Rs.10,59,592/-. No doubt, the officials of Opposite Party No.1, stated that after giving cash discount of Rs.85,000/-, from this amount, the price of the car was Rs.9,74,592/-. Annexure C-3 is another quotation/ proforma invoice dated 19.3.2012 of model of 2012, which was also provided to the complainant, according to which the price of Ford Passenger Car was shown to be Rs.10,59,592/- inclusive of VAT and Octroi.
In case, the price of Ford Fiesta Titanium + diesel car of 2011 model, was Rs.10,59,592/-, and a cash discount of Rs.85,000/-, was to be given to the complainant from this amount, Opposite Party No.1 should have indicated this price in the retail invoice dated 16.03.2012 Annexure C-1, which was, in the first instance, provided to the complainant, at the time of purchase of the same. As stated above, in Annexure C-1, the total price of the car was shown as Rs.9,74,483/, inclusive of VAT. There is nothing mentioned, in Annexure C-1, with regard to giving of cash discount of Rs.85,000/. Not only this, the complainant also obtained proforma invoice/quotation of 2012 model of the same car, from Saluja Ford, on 20.3.2012, copy whereof is Annexure C-4, according to which, the base price of the said car including VAT, was Rs.10,10,000/-, and, after adding an amount of Rs.13,550/-, it was carrying warranty for four years. Annexure C-1, therefore, clearly proved that the Sales Manager of Opposite Party No.1, misrepresented about the cash discount of Ford Fiesta Titanium + diesel car to the complainant. No doubt, Annexure R-1 rate list was produced by Opposite Party No.1, to show that the price of 1.5D Titanium + Diesel model, in Chandigarh, was to the tune Rs.10,55,802/-, on 01.11.2011 and vide Annexure R-2 the price was shown to be Rs.1010808/-, on 12.3.2012, yet, no reliance could be placed, on these documents, in view of the invoice Annexures C-1, produced by the complainant. Had the complainant been told that the price of the car of 2012 model, on 16.3.2012, was Rs.10,10,808/-, she would have opted for the purchase of the same, instead of purchasing the car of model 2011 for Rs.9,74,592/-. We are, thus, of the considered opinion, that the Sales Manager of Opposite Party No.1, made representation, to the complainant, with regard to the discount of Rs.85,000/-, but did not give the same, from the price mentioned in Annexure C-1, retail invoice, issued to her, on 16.03.2012. Thus Opposite Party No.1, indulged into unfair trade practice, by not giving discount of Rs.85,000/-, as promised by it. However, no document was produced on record, that the complainant was misrepresented with regard to the extended warranty of 4 years. The District Forum, was, thus, right in holding that Opposite Party No.1, indulged into unfair trade practice, by not giving discount of Rs.85,000/-, as promised by its Sales Manager, on the price, mentioned in the retail Invoice Annexure C-1. The District Forum, was, thus, right in holding that the complainant was entitled to the discount of Rs.85,000/-, on the invoice amount of Annexure C-1. The findings of the District Forum, in this regard, being correct, are affirmed.
20. The next question, that arises for consideration, is, as to whether, the vehicle, in question, suffered from inherent manufacturing defects or not. It may be stated here, that to establish the claim, for the replacement of the vehicle, or refund of the price thereof, the complainant was required to prove through cogent, convincing and adequate evidence, supported by the opinion of an automobile expert/mechanical engineer, that the vehicle suffered from inherent manufacturing defects. In our opinion, the report of the automobile expert/mechanical engineer, in such cases, was eminently essential, so as to enable this Commission, to come to the conclusion, as to what were the defects, persisting in the vehicle, within the short span of the purchase of the same, and, whether those defects were actually inherent manufacturing defects, or only minor defects, which were the result of normal wear and tear, improper maintenance of the vehicle or extensive use, thereof, and could be easily rectified. In Jose Philip Mampilli Vs. Premier Automobiles Ltd., & another 2004 (1) CPC 438 (S.C.) and Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr. (JT 2006 (4) SC 113), the principle of law, laid down, was to the effect, that the manufacturer could not be ordered to replace the car or refund its price, merely because some defects appear, which could be rectified or defective parts could be replaced, under warranty. Similar principle of law, was laid down in Chandeshwar Kumar Vs. Tata Engineering Loco Motive Co. Ltd. & Anr., I (2007) CPJ 2 (NC), M/s E.I.D. Parry (India Ltd.) Vs. Baby Benjamin Thushara, I (1992) CPJ 279 (NC), a case decided by a Four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi and Sushila Automobiles Pvt. Ltd., Vs. Dr. Birendra Narain Prasad & Ors. III (2010) CPJ 130 (NC)
21. Keeping in view the principle of law, laid down, in the aforesaid cases, now let us see, whether, in the instant case, the complainant was successful, in proving that the vehicle, in question, suffered from inherent manufacturing defects or not. Admittedly, no report of the automobile expert/mechanical engineer, was produced, on record, by the complainant, to prove that the vehicle was found to be suffering from inherent manufacturing defects. The car, in question, was purchased on 16.3.2012, and the present complaint was filed by the complainant, on 9.4.2012, i.e. even prior to one month of purchase of the same Annexure C-5 dated 19.3.2012 is the repair order (within three days of the purchase of car), according to which the voice controller of the car was not working. The repair order dated 23.3.2012 Annexure C-6, also showed defects, in the voice control, and audio climate control, which were kept under observation. One mirror cap was replaced. It was also complained that the engine of the car was missing, at the time of starting the same, in the morning. Some slang problem was also found by the Engineer, but there was no indication, in the repair order, that the starting problem was solved. Job card dated 7.5.2012 Annexure C-8 showed that there was a starting problem, in the car of the complainant, and the same was towed, to the workshop of Opposite Party No.1. Repair order Annexure C-10 of the same date, showed that the car was emitting a foul smell, when the AC was not in running condition. According to this repair order Annexure C-10, the car was checked with IDS, and the error was cleared, but the starting trouble could not be cured. There is another repair order dated 16.5.2012 Annexure C-11, which showed that, on 16.5.2012, the car was again towed, to the workshop of Opposite Party No.1, because of starting problem and the vehicle used to get off while running. The Engineer of Bhagat Ford observed that wiring was required to be replaced, as the car was under warranty. Annexures C-12 to C-14, emails, were sent to the complainant, which clearly showed that she did not give approval, for the replacement of the wires and insisted for the replacement of vehicle, Annexure C-15 is a copy of the job card dated 14.9.2012, showing that again the car was taken to the workshop of Opposite Party No.1, for starting problem. On 18.9.2012 again the car was towed, to the workshop of Opposite Party No.1, on account of starting problem, as per Annexure C-16. Annexure C-E job card dated 31.10.2012, also showed that the car was towed to the workshop of Opposite Party No.1, on account of starting problem. Annexure C-F job card dated 14.11.2012, also showed that the car was towed to the workshop of Opposite Party No.1, on account of starting problem. Customer Information Sheet Annexure C-G, also showed that the car was towed to the workshop of Opposite Party No.1, on account of starting problem. Customer Information Sheet Annexure C-G, showed that, on 21.11.2012, it was found by the Engineer of Opposite Party No.1, that the high pressure pump of the car was required to be replaced, but the said part was not available. An order was placed for the said part and the complainant was informed. Annexure CH is a copy of the job card, which showed that the car was again towed to the workshop of Opposite Party No.1, on that date, due to starting problem. Annexure C-I is copy of the repair order, which showed that the vehicle was handed over to the dealer, on 14.11.2012, and it was delivered back, on 28.11.2012. Annexure C-J is a copy of the job card dated 29.11.2012, which showed that the car was again towed to the workshop of Opposite Party No.1, for starting problem. The starting problem of the car, in the morning, was not at all rectified, though the same was taken to the workshop of Opposite Party No.1, a number of times. The mere fact that the car was taken to the workshop of Opposite Party No.1, a number of times for rectification of defects, referred to above, did not, in any way go to prove that, it was suffering from inherent manufacturing defects. These defects could be said to be on account of normal wear and tear, alleged negligent driving habits etc. etc. If the complainant did not give approval, as is evident, from Annexures C-12 to C-14 emails, for the purpose of replacing wiring, she might be having some doubt, in her mind, that, in case, the entire wiring was replaced, the car will not remain in the original condition, but that fact alone could not go to prove that the car did not suffer from the aforesaid defects. The District Forum was thus, right, in coming to the conclusion, that there was starting problem, in the car, which could never be rectified, yet, it did not mean that it was such a manufacturing defect, which warranted the replacement thereof, or refund of the price of the same. We agree with such a conclusion, arrived at, by the District Forum. We are of the considered opinion, that the car, in question, did not suffer any manufacturing defect, and, as such, it could neither be ordered to be replaced, nor refund of the price thereof, could be directed.
22. The next question ,that falls for consideration, is, as to whether, the direction can be given to the Opposite Parties, for rectification of the aforesaid starting problem and other minor defects, existing in the vehicle, as pointed out by the complainant, replacement of defective parts, free of cost, and extension of warranty or not. In Jose Philip Mampilli`s and Maruti Udyog Ltd.`s cases (supra), the Hon`ble Supreme Court held that where the defects, in various parts of the car, are established, replacement of the entire car or refund of price, was not called for, but direction could be given, for rectification of the defects and replacement of defective parts. Since the defects, referred to above, occurred in the vehicle, during the period of warranty, and were even persisting, till the date of filing of the complaint, as per the version of the complainant, keeping in view the principle of law, laid down, in the cases, referred to, in this paragraph, such direction can certainly be given to the Opposite Parties.
23. The next question, that falls, for consideration, is, as to whether, the complainant was entitled to compensation for mental agony and physical harassment, suffered at the hands of the Opposite Parties. It may be stated here, that three days, after the purchase of the car, it had to be taken to the workshop of Opposite Party No.1, as the defects occurred therein. It is evident, from the aforesaid discussion, that the car had to be taken to the workshop of Opposite Party No.1, a number of times, for the rectification of defects, some of which were rectified and some could not be rectified. A person purchases a car, to make her/his life comfortable. If a vehicle, purchased developes defects, merely after 3 days, of the purchase thereof, and had to be taken to the workshop, again and again, for a number of times, one can really visualize the plight of such a person, who had purchased the same. On account of taking the car, to the workshop of Opposite Party No.1, a number of times, as stated above, for the purpose of repairs, after the purchase of the same, certainly the complainant had to undergo a tremendous mental agony and physical harassment. In our considered opinion, the District Forum was right, in awarding compensation, to the tune of Rs.1,00,000/-, to the complainant.
24. No other point, was urged, by the Counsel for the parties, in both the appeals.
25. For the reasons, recorded above, both the appeals are partly accepted, with no order as to costs, and the order of the District Forum is modified, in the following manner:-
i. Respondent no.1/complainant is directed to take the vehicle, in question, to the workshop of appellant/Opposite Party No.1 and hand over the same to it, within 20 days, from the date of receipt of a certified copy of this order.
ii. The appellants/Opposite Party No.1 and 2, in both the appeals shall take over the vehicle, on production, repair the same and replace the defective parts thereof, without charging anything from her, within a period of 20 days, from the date of handing over the same (vehicle), to them, by respondent no.1/complainant, under the supervision of their panel of two qualified experts, in the line, who shall submit their separate affidavits, and handover the same (vehicle) to her defect free, immediately, thereafter.
iii. The appellants/Opposite Parties No.1 and 2, in both the appeals, shall also give extended warranty of one year, which would be operative from the date of handing over the car to respondent no.1/complainant, containing the same terms and conditions, as are mentioned in the original warranty.
iv. The direction of the District Forum, to refund the promised amount of discount of Rs.85,000/-, to respondent no.1/ complainant, shall remain intact.
v. The direction of the District Forum, awarding compensation, to the tune of Rs.1 lac, to the complainant/respondent, for mental agony and physical harassment, shall remain intact.
vi. The direction of the District Forum, awarding cost of litigation, to the tune of Rs.11,000/-, shall remain intact.
vii. The direction of the District Forum, awarding 9% interest P.A., on the amount of Rs.85,000/-, from the date of purchase of the car i.e. 16.03.2012, if the same was not paid, within one month, from the date of receipt of a certified copy of the impugned order, till realization, shall remain intact.
viii. The direction of the District Forum, that in case of non-compliance of the remaining directions, within one month, from the date of receipt of certified copy of the impugned order, the Opposite Parties shall be jointly and severally liable to make payment of the price of the car with interest @9% p.a. from the date of purchase of the same till realization, is set aside.
ix. Any other direction, contrary to and in variance of this order, subject to the modification, referred to above, given by the District Forum, shall stand set aside.
26. Copy of this order be placed in appeal file No 255 of 2013, titled as Ford India Pvt. Ltd., Vs. Mrs. Anjana Wadhawan and Anr..
27. Certified copies of this order, be sent to the parties, free of charge.
28. The files be consigned to Record Room, after completion Pronounced.
July 19, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg