State Consumer Disputes Redressal Commission
M/S Padam Motors Private Ltd. vs Sarinder Singh Brar on 23 February, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Appeal No. 354 of 2015 Date of Institution 29.12.2015 Date of Decision 23.02.2016 M/s Padam Motors Private Ltd., # No.182-85, Phase I, Industrial Area, Chandigarh, through Ravi Jolly, its Sr. General Manager. .....Appellant/Opposite Party No.2. Versus 1. Sarinder Singh Brar, s/o Sh.Sarjit Singh Brar, r/o H.No.703, Sector 20-A, Chandigarh. ......Respondent No.1/Complainant. 2. General Motors India Pvt. Ltd. Through its Vice President - Marketing, Sales and After-Sales, 401-412, Palm Court, 20/4, Sukhrali Chowk, Mehrauli - Gurgaon Road, Gurgaon. 3. M/s Dynamic Motors, Plot No.5, Industrial Area, Phase I, Chandigarh. ......Respondents No.2 and 3/Opposite Parties No.1 and 3. Argued by: Sh.Sandeep Jasuja, Advocate for the appellant. Sh.Sanjiv Sharma, Advocate and Sh.Vishal Sharma, Advocate for respondent No.1. Sh.Chanderhas Yadav, Advocate for respondent No.2. Service of respondent No.3 dispensed with vide order dated 31.12.2015. Appeal No. 03 of 2016 Date of Institution 04.01.2016 Date of Decision 23.02.2016 General Motors India Pvt. Ltd., Chandrapura Industrial Estates, Halol - 389350, District Panchmehal, Gujrat through its Zonal Area Manager Sh.Sanmukh Singh Khaira, Plot No.3, IFFCO Complex, Sector 32, Gurgaon. .....Appellant/Opposite Party No.1. Versus 1. Sarinder Singh Brar s/o Sh.Sarjit Singh Brar, r/o House No.703, Sector 20-A, Chandigarh. ......Respondent No.1/Complainant. 2. M/s Padam Motors Private Ltd., through its Director/Partner Sh.Amarjit Singh, #182 & 185, Phase I, Industrial Area, Chandigarh. 3. M/s Dynamic Motors, Plot No.5, Industrial Area, Phase I, Chandigarh. ......Respondents No.2 and 3/Opposite Parties No.2 and 3. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:
Sh.Chanderhas Yadav, Advocate for the appellant.
Sh.Sanjiv Sharma, Advocate and Sh.Vishal Sharma, Advocate for respondent No.1.
Sh.Sandeep Jasuja, Advocate for respondent No.2.
Service of respondent No.3 dispensed with vide order dated 27.01.2016.
PER PADMA PANDEY, MEMBER This order shall dispose of two appeals bearing No.354 of 2015 filed by Opposite Party No.2 and bearing No.3 of 2016 filed by Opposite Party No.1, against the order dated 29.10.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short 'the Forum' only), vide which, it allowed Consumer Complaint No.14 of 2015, qua Opposite Parties No.1 & 2 and dismissed qua Opposite Party No.3, with the following directions: -
"13] In the light of above observations, we are of the concerted view that the Opposite parties No.1 & 2 are found deficient in rendering proper service to the complainant. Hence, the present complaint of the Complainant is allowed qua Opposite Parties No.1 & 2 and dismissed against Opposite Party No.3. The Opposite parties No.1 & 2 are directed as under:-
[a] To refund Rs.84,832/- to the complainant, charged as the cost of Engine Turbo Charger;
[b] To pay an amount of Rs.10,000/- to the complainant as consolidated amount of compensation for causing mental agony and harassment on account of deficiency in service;
[c] To pay litigation expenses to the tune of Rs.7,000/-
The above said order shall be complied with within 45 days of its receipt by the Opposite Parties No.1 & 2; thereafter, they shall be liable to pay an interest @18% per annum on the amount mentioned in sub-para [a] & [b] above, from the date of filing of this complaint till it is paid, apart from paying litigation expenses."
2. The facts, in brief, are that under the influence of public promotion of CAPTIVA model of Chevrolet brand, manufactured by Opposite Party No.1 claimed excellent performance and best after sales service, the complainant purchased the said SUV model CAPTIVA from Opposite Party No.3 for an amount of Rs.19,60,000/- on 03.06.2009 vide temporary Certificate (Annexure C-1). It was stated that the complainant used to drive the said vehicle occasionally approximately 1200 kms./month. The said vehicle was driven single-handed and properly serviced, well in time from the authorised service centre i.e. Opposite Party No.3 and, thereafter, serviced from Opposite Party No.2 i.e. M/s Padam Motors Pvt. Ltd. In the month of July, 2014, the said vehicle used to have long self in an irregular manner on start up and, therefore, it was taken to Opposite Party No.2, as Opposite Party No.3 i.e. M/s Dynamic Motors ceased to be authorised dealer of Chevrolet vehicles. At that point of time, the said vehicle had run almost 76000 Kms. After inspection, Opposite Party No.2 intimated that there seems to be a problem with the engine of the vehicle and the same was required to be overhauled and would be charged approximately Rs.2,50,000/-. It was averred that after discussing the matter with the company and the Opposite Parties, Opposite Party No.2 re-affirmed that the engine required to be overhauled and intimated the complainant that the management was ready to replace the turbo part without any cost, but they would charge for engine repair, which could cost Rs.1,00,000/- or more. The complainant asked Sh.Balwinder Singh, GM of Opposite Party No.2 about their irrational demand of payment for repair of faulty engine but Opposite Party No.2 remained adamant for charging more than Rs.1 lac from him, though it was agreed that the problem with engine of the said vehicle was inherent and a manufacturing defect. It was further stated that the complainant used to get his vehicle serviced from authorised dealer, well in time, and strictly as per the Company schedule and there was no default or negligence on his part but the Opposite Parties failed to provide deficiency free services, as their service engineers never ever intimated about the inherent manufacturing defect in the said vehicle. It was further averred that in the e-mails exchanged between the complainant and Opposite Party No.1, it never denied for Turbo replacement free of cost. The complainant enquired from different sources about trouble/problem in Chevrolet/CAPTIVA engine and was shocked to know that most of the engines of CAPTIVA model of the year 2008 and of early 2009 had manufacturing defect, as a result of which, the workshop of the Opposite Parties was already flooded with vehicles for engine overhauling. It was further stated that on 17.09.2014, the complainant handed over the said SUV to Opposite Party No.2 for necessary repair and on 14.10.2014, Opposite Party No.2 intimated and handed over invoice dated 14.10.2014 amounting to Rs.2,32,646/- for payment before taking delivery of the vehicle. The complainant agitated the matter with Opposite Party No.2 saying that he was supposed to pay labour charges only and nothing else, as the service of the vehicle had been conducted due to manufacturing defect in the engine, but to no avail. As such, the complainant was forced to pay the said amount of Rs.2,32,646/- (Annexure C-6). It was pleaded that the engine and other integral parts of the engine had inherent manufacturing defect, which was evident from the fact that the engine and other parts were replaced, rather than overhauled by the Opposite Parties, which was contradictory to their earlier statement about overhauling of engine. It was further pleaded that Opposite Party No.1 wrongly charged the said amount of Rs.2,32,646/-, which could not be charged otherwise, as the vehicle was serviced/repaired to correct the inherent manufacturing defect. It was further stated that the Opposite Parties were 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 (in short the "Act" only), was filed.
3. In its written statement, Opposite Party No.1 (General Motors India Pvt. Ltd.) admitted the manufacturing of the vehicle and denied regarding manufacturing defect in the same. It was stated that the vehicle was not under warranty and, as such, the engine of the same could not be replaced under warranty, therefore, Opposite Parties No.2 and 3 were at liberty to charge for repair work. It was further stated that the complainant neither contacted the replying Opposite Party nor it ever assured him to change the turbo part without any cost. It was pleaded that the plea of inherent defect does not lie in the mouth of the complainant, after using the vehicle, in question, for six longs years and the same could be the result due to negligence on his part. It was further pleaded that the vehicle was not covered under warranty, just to show goodwill gesture, Opposite Party No.2 charged an amount of Rs.82,104/- under warranty, but despite that the complainant was not satisfied. It was further stated that Opposite Party No.1 was neither deficient, in rendering service nor indulged into unfair trade practice.
4. In its written statement, Opposite Party No.2 (M/s Padam Motors Pvt. Ltd.) admitted regarding the sale and service of the vehicle, in question. It was also admitted that on 7.7.2014 the complainant approached the replying Opposite Party for service of his vehicle and noted down the "starting problem" in the job card. On checking of the vehicle, it was found that there was problem in the engine and engine job was to be done. It was stated that since the warranty period had already expired, it was informed that the said repair should be on payment basis. It was denied that Mr.Jaswant Singh ever conveyed that engine required to be overhauled because as per policy of General Motors, parts are to be replaced and not recommended for overhauling. It was never conveyed to the complainant regarding replacement of turbo part without any cost. Even the complainant was told that replacement of turbo part would be on chargeable basis. It was denied that engine of the vehicle had inherent and manufacturing defect, rather the management offered the replacement of engine parts and free labour, as a goodwill gesture, inspite of the fact that the complainant had no right to claim the said repairs/replacement as a matter of right. It was further stated that when the complainant brought the vehicle on 17.09.2014, he was informed that the engine parts i.e. short block A and Head completed cylinder, which was of dealer price of Rs.2,15,694/- and Rs.82,118/- respectively (much below the market price) should be replaced free of cost and no labour for fitting the same should be charged. It was clearly informed to the complainant that all other repairs including replacement of turbo, clutch repair/replacement and timing job would be charged and he readily agreed for the same and did not raise the said issue before anyone. Thereafter, the vehicle of the complainant was opened, the approval of free replacement of the parts to be replaced was taken from Opposite Party No.1 and after approval, the required parts were requisitioned from Opposite Party No.1 and on 14.10.2014, the vehicle became ready for delivery. It was further pleaded that on 14.10.2014, the complainant paid the repair amount and took the delivery of his vehicle, without any complaint and also signed the satisfactory note, invoice/bill as well as gate pass and did not write any remark of his dis-satisfaction. It was further pleaded that the vehicle, in question, was purchased on 03.06.2009 and, thereafter, till 07.07.2014, when it had run about 73942 Kms, no complaint regarding any defect in the engine was received by the replying Opposite Party, which proved that there was no manufacturing defect in the same because if there was any defect in the engine, it would have arisen much earlier. It was further stated that Opposite Party No.2 was neither deficient, in rendering service nor indulged into unfair trade practice.
5. In its written statement, Opposite Party No.3 (Dynamic Motors) took the same pleas, as taken by Opposite Party No.2 and prayed for dismissal of the complaint.
6. The complainant, filed rejoinders to the replies of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written versions of the Opposite Parties.
7. The parties led evidence, in support of their case.
8. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the Forum, allowed the complaint, qua Opposite Parties No.1 and 2 and dismissed qua Opposite Party No.3, vide the impugned order, as sated above.
9. Feeling aggrieved, Opposite Parties No.1 and 2, filed the instant appeals
10. In appeal No.354 of 2015, the appellant has also moved an application for placing on record email dated 25.09.2014 by way of additional evidence, which has been opposed by the Counsel for respondent No.1/ complainant at the time of the arguments.
11. We have heard the Counsel for the contesting parties, and have gone through the evidence and record of the case, carefully.
12. The Counsel for the appellant/Opposite Party No.2 (M/s Padam Motors Pvt. Ltd.) in Appeal No.354 of 2015, submitted that the Forum has failed to consider that the complainant has no right to claim warranty of all the parts, as the warranty of the vehicle, in question, was upto only running of 50000 Kms or upto 2 years from the purchase of vehicle. He further submitted that since the vehicle was purchased 6 years ago from the date of pointing out the defect in engine and had run more than 76000 Kms, respondent No.1/complainant cannot maintain the complaint to claim any benefit as a matter of right. He further submitted that the Forum wrongly formed its opinion that the turbo charger is an inseparable part of the engine and if the appellant had agreed for replacing the engine parts, the turbo charger was also deserved to be replaced free of cost, which is not sustainable in the eyes of law. He further submitted that the replacement of the engine parts only was offered as a goodwill gesture and the said offer cannot be treated as an admission of any manufacturing defect, especially till 6 years from the purchase of the vehicle, no defect in engine was pointed out by the complainant. He prayed for allowing appeal and setting aside the impugned order.
13. The Counsel for Opposite Party No.1 - General Motors India Pvt. Ltd. (appellant in Appeal No.3 of 2016), submitted that when the vehicle, in question, was having a specific warranty limitation, then it was for the complainant to prove that overhauling of the vehicle, in question, covered under warranty. He further submitted that the liability of the appellant is only to the extent of manufacturing defect as well as to the extent of warranty conditions only, but in the present case, the vehicle, in question, was not covered under warranty, and the same was not repaired/overhauled by the appellant. He further submitted that Opposite Party No.2 and the appellant are independent individuals, they work on principal to principal basis and if anything done wrong by Opposite Party No.2, the appellant cannot be punished. He further submitted that the Forum without any mechanical report/expert evidence itself opined that the engine turbo charger is in-separable part from the engine. He prayed for setting aside the impugned order and allowing the appeal.
14. The Counsel for respondent No.1/complainant submitted that the appellants failed to provide the deficiency free services to the complainant. He denied that the complainant complained about engine/turbo problem for the first time on 07.07.2014, as he complained about various engine problems (Annexure R-3/2). He further submitted that the complainant specifically narrated in the email dated 08.09.2014 (Annexure C-2) that Mr.Jaswant Singh of Opposite Party No.2 after discussion with the management, assured him that Opposite Party No.2 is ready to replace the turbo part, if faulty, within guarantee but in the case of engine, the complainant has to bear the cost. He further submitted that Opposite Party No.1 responded to the said email of the complainant vide its email dated 10.09.2014 (Annexure C-3), wherein, Opposite Party No.1 was not in denial for complainant's request for providing replacement of engine under warranty. He prayed for dismissal of both the appeals filed by Opposite Parties No.1 and 2.
15. After giving our thoughtful consideration, to the submissions, raised by the Counsel for the contesting parties, and the evidence, on record, we are of the considered opinion, that both the appeals are liable to be dismissed, for the reasons to be recorded, hereinafter.
16. The only question, that falls for consideration, before us is, as to whether the Forum rightly awarded the relief as regarded refund of Rs.84832/- against Turbo Charger alongwith compensation and litigation expenses to the complainant. The answer, to this, question is in the affirmative. Admittedly, the complainant purchased Chevrolet SUV Captiva in the year 2009 and got it serviced from the different authorised dealers from time to time. According to the complainant, he noticed some humming noise in the engine, which was reported to the Opposite Parties in November, 2010, when the vehicle had covered only 22860 Kms. Even the complainant claimed that on one occasion or the other, the vehicle kept on giving problem and the same were registered on different dates and finally the engine was replaced on 17.09.2014 under warranty terms & conditions without charging anything from him, however, Opposite Party No.2 still raised a bill of Rs.2,32,646/-, which was paid by him. The complainant further pointed out that Opposite Party No.2 charged an amount of Rs.84,832/- on account of replacement of Engine Turbo Charger, whereas, the same was promised to be replaced under warranty conditions as similar to the promise of replacement of engine parts. According to the Opposite Parties, the vehicle, in question, was sold to the complainant in the year 2009 and the warranty terms and conditions were only limited to two years or completion of 50000 Kms, whichever is earlier. Opposite Party No.2 claimed that it was only out of a goodwill gesture that it preferred to repair the vehicle of the complainant by not charging anything towards the engine parts, which were replaced, as promised to him, after he raised the matter with Opposite Party No.1 repeatedly. Even the allegation of the complainant regarding charging for replacement of turbo charger were denied on the account that it was only the engine and not the turbo charger, which was offered to be repaired free of cost and other parts of the vehicle, which had worn out and needed to be replaced, were charged as per bill (Annexure C-6). Annexure C-6 is a copy of the retail invoice dated 14.10.2014 issued by Padam Motors Pvt. Ltd. From this document, it is clearly proved that the said dealer charged an amount of Rs.84832.89 for the Turbocharger Eng., which is mentioned at serial No.16 of the retail invoice, whereas, the other engine parts mentioned at serial No.1 and 2 of the invoice namely 'Short Block A' and 'Head Completed Cylinder' were replaced free of cost and alphabet "W" was printed against these two parts, as stipulated from the said invoice. Even the complainant claimed that the same were replaced under the warranty terms and conditions and due to this reason, the alphabet "W" was mentioned against these two parts. Moreover, the complainant pointed out that the issue of replacement of the defective engine parts under warranty conditions was forwarded to Opposite Party No.1 vide Annexure R-3/3 for necessary sanctions and it was only after receiving such positive signal, the same were replaced, without charging any amount against them. The complainant further pointed out that at the same time, the Engine Turbo Charger, even though being an inseparable part of engine of the vehicle and the same deserved to be replaced in the same manner as other engine parts, but the amount of Rs.84,832/- was illegally charged by Opposite Party No.2 for the engine turbo charger. Even the complainant in his rejoinder to the written statement of Opposite Party No.2 clearly stated in para No.8 and 9 that Mr.Jaswant Singh assured him that turbo part of the vehicle would be replaced without any cost, on which, the complainant narrated the same in detail to the GM of Customer Assistant Centre of Opposite Party No.1 vide email dated 08.09.2014 (Annexure C-2) and demanded to repair the vehicle under guarantee. The complainant specifically narrated in the said email that Mr.Jaswant Singh of Opposite Party No.2, after discussion with the management, assured him that Opposite Party No.2 is ready to replace the turbo part, if faulty, within guarantee but in the case of engine, the complainant has to bear the cost. Dissatisfied from the same, the complainant demanded the guarantee for engine also from the Company (Opposite Party No.1). Moreover, Opposite Party No.1 responded to the said email of the complainant vide its email dated 10.09.2014 (Annexure C-3), wherein, Opposite Party No.1 was not in denial for complainant's request for providing replacement of engine under warranty. According to the complainant, Opposite Party No.1 has not intimated or asserted that the Opposite Parties would charge for the replacement of turbo of the vehicle. The email (Annexure C-3) was in response to the email by the complainant (Annexure C-2), wherein, Opposite Party No.1 never denied the contents of Annexure C-2. Moreover, the plea taken by Opposite Party No.1 that the Forum without any mechanical report/expert evidence itself opined that the engine turbo charger is in-separable part from the engine, has no value, at all because we are of the view that the Forum rightly observed in para No.12 of the impugned order, which reads as under :-
"12] The Opposite Party No.2 has nowhere tried to explain that the Engine Turbo Charger did not deserve to be dealt in the same manner as the other parts mentioned at Sr.No.1 & 2 of Ann.C-6, which were replaced free of cost, were as per the instructions of Opposite Party No.1 and the Opposite Party NO.1 did not sanction the replacement of Engine Turbo Charger free of cost, thus entitling them to charge an amount of Rs.84,832/- from the complainant on that score. Though the document placed on record by the complainant Ann.C-4 as well as the document placed on record by the OPs as Ann.R-3/3 should have been supplemented by the OPs by placing on record the communication vide which the Opposite Party No.1, manufacturer of the vehicle, had categorically given sanction with regard to the replacement of Engine Parts mentioned at Sr.No.1 & 2 of Ann.C-6 and did not cover the body part i.e. the Engine Turbo Charger mentioned as Sr.No.16 of Ann.C-6. In the absence of any conclusive evidence from the side of the Opposite Parties to address this issue, deserves to be construed against them. Therefore, the act of Opposite Party No.2 in charging an amount of Rs.84,832/- against the replacement of Engine Turbo Charger vide its Invoice Ann.C-6 dated 14.10.2014, amounts to deficiency in service. However, the prayer of the complainant with regard to refund of the entire amount of Rs.2,32,646/- which included other such parts, which needed to be replaced on account of natural wear & tear or being consumable, cannot be acceded to as such parts are never covered under warranty conditions."
Therefore, it is clearly proved that there was deficiency in service on the part of Opposite Parties No.1 and 2. So, we are of the considered opinion, that the Forum rightly allowed the complaint qua Opposite Parties No.1 and 2 and awarded compensation and litigation expenses to the complainant.
17. Keeping in view the facts and circumstances of the case, we are of the considered view that the Forum was right, in allowing the complaint, qua Opposite Parties No.1 and 2 as stated above. Hence, the order passed by the Forum, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
18. For the reasons recorded above, both the appeals bearing Nos.354 of 2015 and 03 of 2016, filed by Opposite Party No.2 and Opposite Party No.1, being devoid of merit, must fail, and the same stands dismissed, with no order as to costs and simultaneously the application for additional evidence also stands dismissed. However, the order of the Forum is upheld.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion.
Pronounced.
23.02.2016 [JUSTICE JASBIR SINGH (RETD.)] PRESIDENT (DEV RAJ) MEMBER (PADMA PANDEY) MEMBER rb