State Consumer Disputes Redressal Commission
M/S Goyal Motors P. Ltd. vs Sh. Rakesh Guleria. & Anr. on 10 June, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 243/2018
Date of Presentation: 06.09.2018
Order Reserved on : 07.01.2019
Date of Order : 10.06.2019
......
M/s. Goyal Motors Pvt. Ltd. Deonghat Tehsil & District Solan
H.P. through its Managing Director namely Sehaj Shabad S/o
late Shri Pankaj Goyal .
...... Appellant/Opposite Party No.1
Versus
1. Mr. Rakesh Guleria son of Shri Rumel Singh presently
R/o Set No.36 Police Line Solan H.P. permanent R/o Rani
Ka Talab P.O. Rehan Tehsil Nurpur District Kangra H.P.
......Respondent No.1/Complainant
2. M/s Maruti Suzuki India Ltd. Plot No.1 Nelsan Mandela
Road Vasant Kunj N. Delhi-71 through its Authorised
Representative -cum- Director.
......Respondent No.2/opposite party No.2
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Shashi Bhushan Advocate.
For Respondent No.1 : Mr. Jagdish Thakur Advocate.
For Respondent No.2 : Mr. Sanjeev Kumar Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 1 Whether reporters of the local papers may be allowed to see the order? Yes.
M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018 24.07.2018 passed by Learned District Forum in consumer complaint No.14/2018 titled Rakesh Guleria Versus M/s Goyal Motors Pvt. Ltd. & Anr.
Brief facts of consumer complaint:
2. Rakesh Guleria filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that on dated 28.10.2016 complainant purchased vehicle No.HP64B-5777 from opposite party No.1. It is pleaded that opposite party issued extended warranty to complainant which was valid till 27.10.2020 or 80000 KMs. It is pleaded that on dated 28.11.2017 complainant was driving vehicle in question on National Highway near Fagu in Shimla and suddenly some sound appeared in the engine of vehicle in question and complainant stopped the vehicle in question and saw that smoke was coming from the engine and oil was leaking. It is further pleaded that complainant contacted nearby agency i.e. Goyal Motors Shimla who advised complainant to toe the vehicle to agency from where complainant has purchased the vehicle. It is pleaded that thereafter complainant brought the vehicle in question to opposite party No.1. It is pleaded that opposite parties did not redress the grievances of complainant and legal notice was issued to opposite parties. It is pleaded that complainant has driven the vehicle to the extent of 13800 KMs only. It is 2 M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018
pleaded that opposite parties committed deficiency in service. Complainant sought relief of replacement of vehicle in question with brand new vehicle. In addition complainant sought relief of payment of Rs.200000/-(Two lac) with interest @ 12% per annum on account of damage sustained by complainant. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party No.1 pleaded therein that complainant purchased Maruti Swift VXI BSIV on 28.10.2016 from opposite party No.1. It is pleaded that warranty was also extended from opposite party No.2 which was valid upto 27.10.2020. It is pleaded that connecting rod of vehicle was bent which caused consequential damage to engine assembly and case of complainant fall under hydrostatic lock concept. It is pleaded that vehicle was driven in the water. It is further pleaded that there was no manufacturing defect in vehicle in question. It is pleaded that defect occurred in the vehicle due to own negligence of complainant. It is pleaded that defect of vehicle falls within exclusion clause of warranty. It is pleaded that opposite party No.1 did not commit any deficiency in service. Prayer for dismissal of consumer complaint against opposite party No.1 sought.
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M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018
4. Per contra version filed on behalf of opposite party No.2 pleaded therein that defect occurred in vehicle due to water entry in the engine of vehicle which caused hydrostatic lock. It is pleaded that defect falls within the exclusion clause of warranty. It is further pleaded that repair is to be conducted on paid basis. It is pleaded that complainant did not give approval to repair the vehicle on paid basis. It is further pleaded that complainant did not purchase the vehicle from opposite party No.2 and did not pay any consideration amount to opposite party No.2. It is pleaded that opposite party No.2 did not commit any deficiency in service. Prayer for dismissal of consumer complaint against opposite party No.2 sought.
5. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum ordered opposite parties jointly and severally to replace complete engine assembly of vehicle in question free of costs within thirty days from the date of receipt of copy of order. In addition learned District Forum ordered opposite parties to pay a sum of Rs.20000/-(Twenty thousand) as compensation for mental harassment. In addition learned District Forum ordered opposite parties to pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand). Feeling aggrieved against order passed by Learned District 4 M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018 Forum M/s Goyal Motors Pvt. Ltd. filed present appeal before State Commission.
6. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether opposite parties are under legal obligation to repair the vehicle in question during warranty period free of costs and whether opposite parties are under legal obligation to give certificate to complainant from automobile engineer stating that repair was satisfactory?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit in evidence. There is recital in affidavit that opposite party No.2 is the manufacturer of vehicle in question and opposite party No.1 is the authorised dealer of opposite party No.2. There is recital in affidavit that on dated 28.10.2016 complainant purchased vehicle in question from opposite party No.1.
There is recital in affidavit that extended warranty was also issued in favour of complainant which was valid upto 27.10.2020 or 80000 KMs. There is recital in affidavit that on 5 M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018 dated 28.11.2017 deponent was driving vehicle in question on National Highway near Fagu in Shimla and suddenly some sound appeared in the engine and deponent stopped the vehicle in question and saw that smoke was coming from the engine and oil was leaking. There is further recital in affidavit that deponent contacted nearby agency i.e. Goyal Motors Shimla who advised deponent to toe vehicle to agency from where deponent had purchased the vehicle. There is recital in affidavit that thereafter deponent brought the vehicle in question to M/s Goyal Motors Solan after paying towing charges. There is recital in affidavit that opposite party did not rectify the defect occurred in the vehicle during warranty period and committed deficiency in service.
9. Complainant filed affidavit of Shri Sandeep in evidence. There is recital in affidavit that deponent is proprietor of M/s Rishabh Auto Spares. There is recital in affidavit that on dated 13.03.2018 deponent inspected the vehicle in question at M/s Goyal Motors Deoghat Solan. There is recital in affidavit that deponent inspected the vehicle in question and found that connecting rod was bent and broken and engine was damaged in which oil sump and block assembly was broken. There is recital in affidavit that problem occurred because crank shaft was not adjusted properly or piston boring was not proper or injector pressure 6 M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018 was not properly adjusted at the time of manufacturing of vehicle in question. There is recital in affidavit that there was manufacturing defect in vehicle in question. State Commission has carefully perused all annexures filed by complainant.
10. Opposite party No.1 filed affidavit of Shri Sahaj Shabad Managing Director in evidence. There is recital in affidavit that complainant purchased vehicle in question from opposite party No.1 on 28.10.2016 and extended warranty was granted which was valid till 27.10.2020. There is recital in affidavit that deponent purchased extended warranty from opposite party No.2 which was valid upto 27.10.2020. There is recital in affidavit that complainant brought vehicle in question to workshop of opposite party No.1 on 28.11.2017. There is recital in affidavit that connecting rod was bent which caused further consequential damage to engine assembly. There is recital in affidavit that present matter was case of hydrostatic lock. There is further recital in affidavit that defect occurred in vehicle due to water entry in engine of vehicle. There is recital in affidavit that defect occurred in vehicle due to own negligence of complainant. State Commission has carefully perused all the annexures filed by opposite party No.1.
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M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018
11. Opposite party No.2 filed affidavit of Shri Love Choudhary who is posted as TCM (Territory Service Manager). There is recital in affidavit that opposite party No.2 sells its product to authorised dealers on the concept of principal to principal basis. There is recital in affidavit that vehicle in question was sent to workshop of opposite party No.1 on 29.11.2017. There is recital in affidavit that vehicle was inspected and it was found that connecting rod was bent which caused consequential damage to engine assembly. There is recital in affidavit that problem occurred in vehicle due to hydrostatic lock. There is recital in affidavit that damage was caused to vehicle in question due to own negligence of complainant and present matter falls within the exclusion clause of warranty. There is recital in affidavit that opposite party No.2 did not commit any deficiency in service. State Commission has also carefully perused all annexures filed by opposite party No.2.
12. Submission of learned Advocate appearing on behalf of M/s Goyal Motors Pvt. Ltd. that defect occurred in vehicle in question due to hydrostatic lock caused by own negligence of complainant and on this ground appeal filed by appellant be allowed is decided accordingly. Onus to prove that defect occurred in vehicle in question due to hydrostatic lock was upon M/s Goyal Motors Pvt. Ltd.. M/s Goyal Motors 8 M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018 Pvt. Ltd. did not file affidavit of mechanic on record in order to prove that defect occurred in vehicle due to hydrostatic lock and due to own negligence of complainant. Affidavit filed by Shri Sahaj Shabad Managing Director of opposite party No.1 is not sufficient to hold that defect occurred in vehicle due to hydrostatic lock because there is no evidence on record that Shri Sahaj Shabad is auto mechanical engineer. There is no evidence on record in order to prove that Sh. Sahaj Shabad Managing Director has personally inspected the vehicle in question mechanically. No reason assigned by M/s Goyal Motors Pvt. Ltd. as to why M/s Goyal Motors Pvt. Ltd. did not file affidavit of mechanic who had personally inspected the vehicle in question when vehicle was brought in the workshop of M/s Goyal Motors Pvt. Ltd. Deoghat Solan.
13. On the contrary complainant filed affidavit of Shri Sandeep Proprietor of M/s Rishabh Auto Spare. Shri Sandeep has submitted mechanical report annexure-C-22 on record. There is recital in mechanical report that present matter is of clear cut manufacturing defect. Mechanical report annexure-C22 issued by Shri Sandeep is quoted in toto :-
Mechanical Report The undersigned has visited the agency of M/s Goyal Motors at Deoghat Solan on 13.03.2018 on the request of Shri Rakesh Guleria son of Shri Rumel Singh to inspect his Maruti Suzuki Swift Car bearing Registration No.HP64B-5777. The car was parked by 9 M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018 them outside the workshop and the engine of the same was removed and placed in the workshop. I had inspected the car and the engine and found that :-
1. Connecting Rod was bent and broken.
2. Engine was damaged in which Oil Sump and block assembly found broken.
The said problem had arisen due to the reason that either the crank shaft have not been adjusted properly or the piston boring was not proper or the injector pressure was not properly adjusted at the time of manufacturing of the said vehicle which is a clear cut manufacturing defect. Such problem could not be occurred due to any mishandling by the driver.
Sd/-
Sandeep Sharma Proprietor M/s Rishabh Auto Spares
14. State Commission is of the opinion that mechanical report submitted by Shri Sandeep is trustworthy, reliable and inspire confidence of State Commission. There is no evidence on record in order to prove that Sh. Sandeep has hostile animus against opposite parties at any point of time. Hence it is held that plea of M/s Goyal Motors Pvt. Ltd. that defect occurred in vehicle in question due to hydrostatic lock is defeated on the concept of ipse dixit (An assertion made without proof).
15. Submission of learned Advocate appearing on behalf of M/s Goyal Motors Pvt. Ltd. that during warranty period opposite parties were under legal obligation to replace defective parts of engine only and were not under legal obligation to replace the complete engine assembly of vehicle 10 M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018 in question is decided accordingly. State Commission is of the opinion that warranty and guarantee are entirely two different concepts under law. State Commission is of the opinion that under warranty card only defective parts of vehicle is to be replaced. State Commission is of the opinion that under guarantee card entire vehicle is to be replaced with new one. In view of the fact that opposite parties issued only warranty card in favour of complainant relating to vehicle in question it is held that opposite parties are under legal obligation to replace only defective parts of engine of vehicle in question as per warranty law.
16. Submission of learned Advocate appearing on behalf of M/s Goyal Motors Pvt. Ltd. that learned District Forum has granted excessive compensation to complainant to the tune of Rs.20000/-(Twenty thousand) for mental harassment is decided accordingly. State Commission is of the opinion that learned District Forum has granted reasonable compensation to complainant keeping in view facts and circumstances of the matter. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to reduce compensation ordered by learned District Forum for mental harassment.
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M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018
17. Submission of learned Advocate appearing on behalf of M/s Goyal Motors Pvt. Ltd. that excessive litigation costs to the tune of Rs.5000/-(Five thousand) ordered by learned District Forum and on this ground appeal filed by appellant be allowed is decided accordingly. State Commission is of the opinion that complainant has engaged Advocate before learned District Forum and has also paid other litigation charges. It is held that reasonable litigation costs has been granted by learned District Forum and it is not expedient in the ends of justice and on the principle of natural justice to interfere in litigation costs order of learned District Forum.
18. Submission of learned Advocate appearing on behalf of M/s Maruti Suzuki India Ltd. that order of learned District Forum warrant interference by State Commission is decided accordingly. It is proved on record that M/s Maruti Suzuki India Ltd. has given invoice -cum- certificate of extended warranty to complainant annexure-C2 dated 28.10.2016 and M/s Maruti Suzuki India Ltd. has extended warranty platinum upto 27.10.2020 or upto 80000 KMs. It is admitted by opposite parties that vehicle was plied upto 13800 KMs only. State Commission is of the opinion that opposite parties were under legal obligation to replace defective parts of engine during warranty period free of costs 12 M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018 and opposite parties were also under legal obligation to give certificate to complainant from automobile engineer stating that repair was satisfactory. In the present matter it is proved on record that opposite parties have not replaced defective parts of engine free of charges during warranty period and on the contrary demanded charges from complainant. It is held that deficiency on the part of opposite parties No.1 & 2 ipso facto proved on record. See 2018(III) CPJ 473 NC titled Rajendra Chimanlal Mody Versus Mahindra & Mahindra Ltd. & Anr.
19. Submission of learned Advocate appearing on behalf of complainant that order passed by learned District Forum does not warrants interference by State Commission is decided accordingly. State Commission is of the opinion that order of learned District Forum warrants part interference by State Commission relating to replacement of defective parts of engine of vehicle in question only instead of replacing complete engine assembly. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
20. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum that opposite parties would jointly and severally replace complete engine assembly of vehicle in question free of costs within thirty days 13 M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018 from the date of receipt of copy of order is set aside. It is ordered that opposite parties shall jointly and severally replace defective parts of engine only qua vehicle in question free of costs within thirty days from the date of receipt of certified copy of order of State Commission. It is further ordered that opposite parties shall jointly and severally give certificate to complainant from automobile engineer stating that defective parts of engine of vehicle in question were satisfactorily replaced with new one free of charges.
21. Order of learned District Forum that opposite parties would jointly and severally pay compensation to complainant to the tune of Rs.20000/-(Twenty thousand) for mental harassment is affirmed. Order of learned District Forum that opposite parties would jointly and severally pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand) is also affirmed. Order of learned District Forum is modified accordingly.
22. R.C. of vehicle annexure-C1, Invoice cum certificate of extended warranty registration issued by Maruti Suzuki dated 28.10.2016 annexure-C2 and Mechanical Report Annexure-C22 dated 13.03.2018 shall form part and parcel of order. Opposite parties shall complete entire process on their part within one month after receipt of certified copy of order. Order of learned District Forum is modified accordingly. Parties are left to bear their own 14 M/s Goyal Motors Pvt. Ltd. Versus Rakesh Guleria & Anr. F.A. No.243/2018 litigation costs before State Commission. Certified copy of order be sent to learned District Forum forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Sunita Sharma Member 10.06.2019 KD* 15