State Consumer Disputes Redressal Commission
Chittosho Motors vs Hari Ram Garg on 26 February, 2013
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.818 of 2012.
Date of Institution: 15.06.2012.
Date of Decision: 26.02.2013.
Chittosho Motors, C-39, Indl. Area, Phase-III, SAS Nagar, Mohali through its
Authorized Representative/General Manager Sh. Sanjeev Devgun.
.....Appellant.
Versus
1. Hari Ram Garg S/o Sh. Des Ram Garg, R/o H.No.680, 2nd Floor,
Sector 40-A, Chandigarh.
2. Maruti Suzuki India Limited, SCO No.39-40, Sector 8-C, Madhya Marg,
Chandigarh through its Incharge.
...Respondents.
First Appeal against the order dated
25.04.2012 of the District Consumer
Disputes Redressal Forum, SAS Nagar,
Mohali.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. D.K. Singal, Advocate, counsel for the appellant.
Sh. Kulwinder Singh, Advocate, counsel for respondent no.1. Sh. Parmod Kumar, Advocate, counsel for respondent no.2.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
This order shall disposed of two appeals i.e. First Appeal No.818 of 2012 (Chittosho Motors Vs Hari Ram Garg & Anr.) and First Appeal No.857 of 2012 (Hari Ram Garg Vs Chittosho Motors & Anr.), as both the appeals are directed against the same order dated 25.04.2012 passed by the learned District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (in short "the District Forum"). The facts are taken from First First Appeal No.818 of 2012 2 Appeal No.818 of 2012 and the parties would be referred by their status in this appeal.
2. Facts in brief are that Sh. Hari Ram Garg, respondent no.1/complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant and respondent no.2, making the averments that he approached the appellant on 05.04.2011 for purchasing one Maruti Alto LXi. The appellant gave the Proforma invoice on 05.04.2011. Respondent no.1 arranged a loan of Rs.2.40 lacs from State Bank of India and a draft was issued in the name of the appellant and on 11.04.2011, respondent no.1 approached the appellant with the draft and the invoice was issued on the same day of Rs.2,74,839/-. The appellant refused to deliver the documents of new car i.e. sale tax, pollution certificate on the pretext that the same will be issued on the realization of the draft and gave only service booklet, temporary registration number and insurance at the time of delivery. Respondent no.1 was handed over the documents on 22.04.20011 after the delay of 11 days.
3. Respondent no.1 was delivered the vehicle at about 8.00 p.m. and was not given the test ride of the vehicle to check the vehicle. Various discrepancies can be seen in the Dealer Feedback Form as pointed by the respondent no.1 at the time of taking the delivery.
4. After purchasing and taking the delivery of the car on 11.04.2011, the AC of the car was not working. Respondent no.1 approached the appellant on 18.04.2011 with the problem that the AC is not giving the cooling and after checking, the appellant told that the AC will start functioning automatically after some days, but it was functioning improperly and respondent no.1 approached the appellant on 26.04.011 and the appellant filled the gas as it was almost empty and for that reason, the AC was not giving the cooling. The AC again stopped working and respondent no.1 approached the appellant on 04.05.2011 and the gas was again filled and the First Appeal No.818 of 2012 3 rings were changed and a detailed note was given on the job card by respondent no.1. The appellant filled almost .250 gms. of AC gas in the car, but the AC again stopped giving cooling and respondent no.1 approached the appellant on 18.05.2011 and requested that it is a manufacturing defect from the first day of the purchase, so the car should be replaced with a new one. The appellant is deficient in service and pre-delivery inspection was never made before delivering the vehicle to respondent no.1. Respondent no.1 sent e-mails to appellant and respondent no.2 on 26.04.2011, but no action was taken. E-mails as well as fax were also sent to the head office at Delhi. The vehicle was kept by the appellant for checking and respondent no.1 visited the workshop to inspect the car and on reaching there, found that the AC was not giving proper cooling and the front bumper of the car was also damaged. The appellant compelled respondent no.1 to get the vehicle and to sign the satisfactory voucher. Respondent no.1 came back immediately and mailed the appellant. The vehicle is still in possession of the appellant since 18.05.2011. The respondent no.1 made the payments as follows:-
a) Advance Receipt No.52 dated 08.04.2011 5000/-(Annexure C-13)
b) By Cash Rec. No.64 dated 09.04.2011 43379/-(Annexure C-14)
c) By draft Rect. No.1892 dt.11.04.2011 240000/-(Annexure C-15)
d) Cash Rect. No.81 dt.11.04.2011 13030 (Annexure C-16)
e) Cash Rect. No.510 dated 11.04.2010 2000/-(Annexure C-17)
5. The appellant received excess amount of Rs.3333/- which amounts to unfair trade practice. Respondent no.1 got checked the vehicle from outside workshop and it was told that the vehicle is accidental and repaired and some expert may be appointed to give independent report.
6. It was prayed that the appellant and respondent no.2 may be directed to:-
i) Refund Rs.3,03,409/- i.e. the price of vehicle (inclusive of excessive Rs.3333/-) First Appeal No.818 of 2012 4
ii) Pay Rs.15030+17122+5997 being cost of registration charges and accessories
iii) Pay Rs.50,000/- on account of physical and mental harassment
iv) Pay Rs.50,000/- for deficiency and unfair trade practice for overcharging
v) Pay Rs.15,000/- as cost of litigation and
vi) pay Rs.1500/- per day since 08.05.2011 till delivery of new vehicle, kept for repair.
7. In the written version filed on behalf of the appellant, the preliminary objections were taken that respondent no.1 firstly approached the appellant on 05.04.2011 for getting the details regarding the purchase of Maruti Alto car and he was duly attended and the necessary detail was provided to him in the shape of Proforma invoice. Thereafter, respondent no.1 visited the office of the appellant on 11.04.2011 for purchase of Maruti Alto car which was supplied to him on the same day. At the time of delivery on 11.04.2011, respondent no.1 gave a draft of Rs.2.40 lacs to the appellant along with remaining payment and the appellant issued the documents, such as extended warranty, insurance and temporary number. However, sale certificate and delivery certificate were not handed over at the time of delivery of the car, awaiting the realization of the bank draft. Respondent no.1 specifically told to collect the documents after three days of purchase, but he did not comply with the instructions and visited on 22.04.2011.
8. Respondent no.1 firstly visited the appellant on 26.04.2011 with the complaint that the AC of the car was not working properly and the employees of the appellant before taking the possession of the vehicle from respondent no.1 for necessary repair, noticed that the right rear door and front bumper of the car were badly damaged which clearly established that the car had met with an accident and this fact was duly mentioned in the 'job instruction capturing sheet', which respondent no.1 has annexed with the complaint. As per practice and procedure, the employees of the appellant, before sending the vehicle to the workshop for repair, took the photographs of First Appeal No.818 of 2012 5 the vehicle and mentioned in the job sheet. The appellant after the necessary repairs gave the delivery after satisfying the respondent no.1 with the working of all the parts of the car, including the AC. Respondent no.1 time and again visited the office of the appellant, complaining about the non-working of AC and every time, the needful was done. Lastly, respondent no.1 visited on 08.05.2011 and complained about mal-functioning of AC and demanded replacement of the car with a new one. On 18.05.2011 itself, the Territory Service Manager of Maruti Udyog Ltd. namely Sh. Tanuj Gupta inspected the vehicle and gave remarks on the job card that the cooling of the AC of the car was found OK. The appellant sent a number of reminders to respondent no.1 for taking delivery of the car, but respondent no.1 remained adamant for replacement of the car and did not turn up. Respondent no.1 has also concealed material facts. The mal-functioning of the AC occurred due to impact of accident. On 02.05.2011, Sh. Uday Garg, probably the son of respondent no.1 visited the office of the appellant and made some complaints which were duly attended, but he did not complaint about the mal-functioning of the AC and he was satisfied with the service and signed the satisfaction note on 02.05.2011. Plea taken by respondent no.1 is false. No expert opinion is attached, as required u/s 13 of the Act. The complaint is not maintainable against the appellant. Respondent no.1 should have approached respondent no.2, who is manufacturer of the product i.e. Maruti cars and the appellant is just a dealer and no liability could be fastened upon the appellant on account of the alleged manufacturing defect. The vehicle was sold after pre-delivery inspection done on 17.03.2011. No test drive was offered as the car was not insured. Respondent no.1 has purchased the vehicle for commercial purpose and he is not a consumer and the complaint is liable to be dismissed with special costs. The defects, as alleged, were minor in nature and were not due to patent defects in the car. The defects were repairable and the same were there due to adjustment problem as the First Appeal No.818 of 2012 6 synchronization of the parts is required. Filing of the complaint is the abuse of the process of law.
9. On merits, purchasing of the car, arranging of the loan was replied as a matter of record. It was admitted that respondent no.1 approached the appellant on 11.04.2011 and the appellant issued the invoice for Rs.2,47,839/- and gave service book, temporary number, insurance number at the time of delivery of the car. Other similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
10. In the written reply filed on behalf of respondent no.2, preliminary objections were taken that the respondent no.1 has failed to set out any case of deficiency or unfair trade practice and the complaint is bad for mis-joinder of parties. The allegations made in the complaint do not constitute any consumer dispute, nor give any jurisdiction to the Forum to entertain the complaint. There is no material on record to substantiate the claim. The complaint is baseless and flagrant abuse of the process of law and is filed to harass and blackmail the answering respondent. The answering respondent is world renowned automobile manufacturing company and is in India for almost 25 years and controls over 45% of the market share and is known for highest quality processes in latest technology and for producing quality of the car. The car Alto is one of the best selling models of the answering respondent.
11. All the vehicles manufactured by the answering respondent are duly approved by appropriate authority of Govt. of India i.e. ARAI after homologation test, considering all aspects of quality, safety and emission norms. The answering respondent is an ISO certified company and the vehicles produced are 100% defect free. The vehicles manufactured undergo stringent quality checks at all levels of production. The vehicle in question had also undergone all the checks and only then final check OK was given. Pre- delivery inspection including road test, ensuring perfect OK roadworthy First Appeal No.818 of 2012 7 condition of the vehicle at the time of sale is done. The Alto car has won many awards and Accolades and has been rates best car. The warranty is for 24 months or 40,000 kmts. from the date of purchase and the same is subject to certain terms and conditions. As per the periodic maintenance schedule, the customer has to compulsorily obtain 1st free inspection service at 1000 kms. or 1 month, 2nd free inspection service at 5000 kms. or 6 months, 3rd free inspection service at 10,000 kms. or 12 months, whichever comes first. Apart from three free services, two paid services are to be carried out on 20000 kms. or 24 months and 30000 or 36 months from the date of purchase of the vehicle. As per clause-3, the obligation of the answering respondent is to repair or replace at its own discretion any part shown to be defective with a new part or the equivalent at no cost to the owner for parts orlabour when Maruti Suzuki acknowledges that such a defect is attributable to faulty material or workmanship at the time of manufacture. The obligation under warranty is specific as set out in the owner's manual.
12. On merits, similar pleas were repeated and it was further submitted that the relationship between the answering respondent and the dealer is that of principle to principle basis as per dealership agreement. Respondent no.1 entered into a contract for purchase of the vehicle with the appellant and paid consideration and respondent no.1 is not a consumer of the answering respondent. As per record, respondent no.1 took the delivery from the showroom on 11.04.2011 after satisfying himself. As per record, respondent no.1 brought the vehicle to the workshop of the appellant on 26.04.2011at 133 kms. for obtaining running repairs. Respondent no.1 for the first time reported the said problem of the AC system of the vehicle and the same was thoroughly inspected by the expert service engineer of the answering respondent and the pipe was found dislocated. The 'O' was replaced and gas was filled under warranty as a gesture of goodwill to respondent no.1 and the delivery was taken by respondent no.1 to his entire satisfaction without any protest and the car was defect free and in OK First Appeal No.818 of 2012 8 condition. Respondent no.1 brought the vehicle to the workshop of the appellant on 04.05.2011 at 346 kms. for obtaining running repairs and the vehicle was thoroughly inspected by the expert service engineer of the answering respondent and the AC pipe was found dislocated. The 'O' ring was replaced and AC gas was filled under warranty and the vehicle was taken under satisfactory condition. Respondent no.1 again brought the vehicle at the workshop of appellant for obtaining running repairs on 18.05.2011 at 453 kms. and complained about the AC cooling-for replacement of the car. The AC system was thoroughly inspected by the expert service engineer of the workshop in the presence of TSM of the answering respondent and no abnormality was observed in the AC cooling of the vehicle and it was found as per standards and the remarks were made in the job cards. The answering respondent being manufacturer is only responsible for replacement of defective components as per the terms and conditions of warranty during the warranty period only. Respondent no.1, with a pre-determined mind to get replacement of the vehicle, also threatened to approach the court for realization of his unwarranted demands. The appellant requested respondent no.1 to take delivery of the car, but he abandoned the same and is adamant for replacement of the vehicle and is putting pressure on the appellant and the answering respondent to gain unjustified benefits. Letter dated 17.04.1997 shows his mind to file a case. The answering respondent has done everything possible to handover the vehicle to the satisfaction of respondent no.1, but he was adamant for replacement. Other similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, dismissal of the complaint was prayed with costs.
13. Parties led evidence in support of their respective contentions by way of affidavits and documents.
14. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that mere fact that respondent no.1 abandoned the car in First Appeal No.818 of 2012 9 question in the workshop of its dealer within two months of its purchase, manifest that he was sold the repaired car. The customer, while paying full price of the new car, does not expect that he would be duped and sold a damaged and re-painted/re-polished car by a dealer. Two experts in this case were appointed by the Forum, one was Sanatan Dev, Head Mechanic CTU-I, Chandigarh, who has clearly mentioned that there was colour mismatch of the front left fender. Then there is report of three experts of PEC University of Technology, Chandigarh dated 23.02.2012 in which also it is reported that the experts observed mismatching of the colour from the colour of roof of the car which clearly shows that the car has been repainted by the appellant after its accident in its custody. The appellant never recorded a note on the 'job instructions capturing sheet' Ex.C-5 that when brought to it, the colour of the car was mismatching. All this leads to the only inference that an accidental car was sold by the appellant to respondent no.1 which amounts to deficiency of service and unfair trade practice on its part. Complaint against respondentno.2 was dismissed and was allowed against the appellant, directing the appellant to replace the sale price of the car of Rs.3,03,409/- and to pay registration charges of Rs.5997/- with interest @ 10% p.a. w.e.f. 11.04.2011 and 29.04.2011 respectively, and compensation for unfair trade practice for selling a damaged car to the tune of Rs.50,000/- and litigation expenses to the tune of Rs.10,000/- was also awarded.
15. Aggrieved by the impugned order dated 25.04.2012, the appellant has come up in the present appeal, with a prayer to set aside the impugned order.
16. On the other hand, respondent no.1/complainant has filed cross appeal i.e. First Appeal No.857 of 2012 (Hari Ram Garg Vs Chittosho Motors & Anr.), with a prayer to modify the impugned order and to:-
i) Pay Rs.50,000/- on account of physical and mental harassment
ii) Pay Rs.50,000/- for deficiency and unfair trade practice for overcharging
iii) Pay Rs.15,000/- as cost of litigation and First Appeal No.818 of 2012 10
iv) pay Rs.1500/- per day since 08.05.2011 till delivery of new vehicle, kept for repair.
17. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties as well as perused the written arguments filed on behalf of the appellant and respondent no.1.
18. In the written arguments filed on behalf of the appellant, the pleadings were repeated. It was further submitted that the District Forum erred factually and legally in ordering refund of the amount of sale price of the vehicle and registration charges, because respondent no.1 filed the complaint alleging mal-functioning of the air conditioner fitted in the car and the same was rectified. The vehicle sold to respondent no.1 was under warranty issued by respondent no.2 and the same problem was checked and set right after replacing the parts without charging anything from respondent no.1, but he remained adamant for replacement of the car. After the last visit, he did not take the car back. Respondent no.1 also raised certain issues such as accidental car which is nothing but an afterthought and concoction. No expert has opined that the AC fitted in the car was having manufacturing defect which could not be repaired or rectified in any manner whatsoever. The appellant is dealer and is not liable. In the absence of any manufacturing defect, the order for the refund of the price of the car is uncalled for and is illegal. The AC fitted in the car is a component which could be repaired or replaced without replacement of the car. The District Forum erred factually in arriving at the conclusion that the car sold to respondent ono.1 was accidental, on the premise that there had been mismatching in the colour as firstly had there been mismatch in colour at the time of delivery of the car, or subsequently noticed by respondent no.1 during custody of the car w.e.f. 11.04.2011 to 18.05.2011, respondent no.1 would not have either taken delivery of the car or subsequently would have pointed out the same during his number of visits to the workshop of the appellant, but he did not do so. First Appeal No.818 of 2012 11 Even in the complaint filed before the District Forum, there was no allegation of mismatching. The issue of mismatch of colour ion front left fender cropped up firstly in the report of expert appointed at the instance of respondent no.1. and the same is beyond pleadings.
19. The District Forum erred factually in assuming that the photographs Ex.R-1 to Ex.R-5 had been taken before the vehicle was sold to respondent no.1 and the same were not considered on the premise that the person who clicked the photographs has not deposed in evidence. The appellant has tendered the affidavit of Works Manager Sh. Vijay Sharma in evidence, who was overall Incharge of the workshop and he tendered the said photographs in his evidence. The strict principles of the Indian Evidence Act are not applicable and the observations of the District Forum with regard to the photographs Ex.R-1 to Ex.R-5 are ill-founded and erroneous. The District Forum lost sight of the fact that the vehicle was given on 11.04.2011 and it remained in custody of respondent no.1 till 18th May, 2011 and during said period, the vehicle met with an accident and respondent no.1 got the necessary repairs including of opening of damaged parts done and the mismatching of the colour cannot be attributed to any act on the part of the appellant. As per the law laid down by the Hon'ble Supreme Court, only the defective parts can be replaced. The order of the District Forum is against the law laid down and the compensation of Rs.50,000/- cannot be granted. It was prayed that the appeal may be accepted and the impugned order may be set aside.
20. In the written arguments filed on behalf of respondent no.1, it was submitted that respondent no.1 filed the complaint, alleging fault in the AC as well as the vehicle is accidental and repaired vehicle and to get the vehicle examined from some expert and the District Forum appointed the GM, CTU-I to inspect the vehicle and to report. Being dissatisfied with the report, the appellant gave application for appointment of another expert and PEC was directed to inspect the vehicle and the vehicle was inspected and it was First Appeal No.818 of 2012 12 reported that the vehicle is having number of defects and is accidental. The photographs were not taken in the presence of respondent no.1. In the job card sheet dated 26.04.2011, the appellant failed to put the remarks that the vehicle met with an accident. Respondent no.1 has taken the loan from the bank and he is regularly paying the loan amount without enjoying the benefits of the car. He has to incur extra burden of thousands of rupees for hiring taxi to take his wife to different hospitals and the meager compensation of Rs.50,000/- has been granted. It was prayed that the appeal filed by the appellant may be dismissed and the appeal filed by respondent no.1 may be allowed.
21. We have considered the respective written submissions advanced on behalf of the appellant and respondent no.1 and have thoroughly monitored the entire fact, documents and record placed on the file.
22. The District Forum relied upon the report of Sh. Sanatan Dev, Head Mechanic, CTU-I, Chandigarh and the report of three experts of PEC University of Technology, Chandigarh dated 23.02.2012 and concluded that the mismatching of the colour clearly shows that the car had been repainted by appellant after its accident in its custody. The other factor which weighed with the District Forum was that the car was purchased and the delivery was taken on 11.04.2011 and respondent ono.1 abandoned the car in question in the workshop of the appellant within two months of its purchase which shows that he was sold the repaired car.
23. These observations of the District Forum are against the evidence and material on record. Sh. Sanatan Dev, Head Mechanic, CTU-I, Chandigarh gave Mechanical Inspection Report of the car in question which is Ex.C-38 and found the following defects:-
(i) Air conditioner of the car was not giving cooling effect.
(ii) Clutch was found defective.
(iii) Rear right door damaged/scratches seen.
(iv) Front bumper repaired from left side.
First Appeal No.818 of 2012 13
(v) Front left fender colour mismatch.
24. Sh. Sanatan Dev, Head Mechanic, CTU-I, Chandigarh was examined by the District Forum as Ex.CW-2 and he tendered his report Ex.C38. In his cross-examination, he deposed that he had tested the air conditioner and cooling of the car in question by driving it over a stretch of about 15 kmts. He did not possess any instrument for checking the cooling or the gas contents of the AC. He had not compared the temperature outside and inside the car. Reason for improper cooling of the AC can be determined only after opening the AC. Since he was not an AC mechanic, he did not open the AC. He further deposed that he checked the clutch of the car by driving it. The car gave jerks and pushes whenever he changed the gears. He himself is owner of Alto car. There might be defect of clutch plates or adjustment due to which the gear changing was causing jerks. The exact reason for jerks could be known only by opening the car, that means the clutch system, which he did not open. He cannot say if the clutch system was capable of being corrected by repairs. He cannot tell the age of the damage to the rear right door, repair to the front bumper and front left fender.
25. Thus, from the above statement of Sh. Sanatan Dev, Head Mechanic, CTU-I, Chandigarh, no conclusion can be derived about the defects he has pointed out, as he neither opened the AC or the clutch system nor he could tell the age of damage to the rear right door, repair to the front bumper and front left fender. No reliance on such a report can be placed, but the factum of defect in AC cooling was admitted by the appellant through its job cards. The job card Ex.C-5/Ex.R-2/5 is dated 26.04.2011 and the complaint was "AC not working", and the gas was filled as is clear from job card Ex.C-6 and vide Ex.C-7, running repairs were carried free of charge and respondent no.1 signed the same. Ex.C-8 is Demanded Repairs and Job Instruction Capturing Sheet dated 18.05.2011 and on this day, the complaint was regarding "AC cooling check" and for "replacement of car" by respondent no.1. These are the documents relied upon by the respondent no.1 to prove First Appeal No.818 of 2012 14 the manufacturing defect. The other documents are related to the payments, bills and other correspondence including e-mails exchanged by the appellant and respondents. Documents Ex.C-19 to Ex.C-37 are the medical record of Seema Garg and Shakuntala Devi. Ex.C-38, as discussed above, is the report of the mechanic.
26. To rebut this evidence, appellant and respondent no.2 have tendered the affidavit of Sh. Vijay Sharma, Works Manager Ex.RW-1/1, photographs Ex.R-1/1 to Ex.R-1/5. Letter Ex.R-1/6 was written to respondent no.1 for taking the vehicle from the workshop of the appellant, after the vehicle was found OK. Ex.R-1/7 is reminder for the same. Ex.R-1/8 is the another letter, asking the respondent no.1 to collect the vehicle from the workshop. Ex.R-1/9 is the job card dated 18.05.2011 vide which the running repairs were done, AC cooling was checked. A note was given on this job card that the customer is demanding replacement of the vehicle because of AC cooling less, whereas the cooling is found OK. 8.3°C grill temperature in the presence of Sh. Tanuj Gupta. Ex.R-1/9 is also about the work done to AC cooling. Ex.R-1/10 is the Satisfaction Note dated 02.05.2011 which is signed by the son of respondent no.1 and the complaint was sorted out and further he signed the satisfaction note which is reproduced as follows:-
"I am happy that you have sorted out the issue by: Speaker has been changed. Rs.10/- extra issue has been closed and perfume received against that and I am quite satisfied now".
27. Ex.R-1/11 is also the Satisfaction Note signed by respondent no.1 at the time of taking delivery of the car in question on 11.04.2011 and the relevant portion is reproduced as follows:-
"I have received the vehicle in good condition to the best of my satisfaction. This vehicle Model Alto Lxi F8 bears C. No.1841518 E. No.4609587 Colour S. Silver".First Appeal No.818 of 2012 15
28. Ex.R-1/12 is the Pre-Delivery Inspection Sheet/Warranty Registration Car and Ex.R-1/13 is the Certificate of Extended Warranty Registration. Ex.RW-2/1 is affidavit of Tanuj Gupta, who is a qualified Engineer, having B.E. Degree in Production from Punjab Engineering College, Chandigarh. Ex.R-2/1 is the Dealership Agreement between the appellant and respondent no.2. Ex.R-2/4 is the above Satisfaction Note of respondent no.1 at the time of taking delivery. Ex.R-2/5 to Ex.R-2/7 are the job cards, as detailed above, and the defect reported is 'AC not giving cooling/gas leakage' and the same was repaired.
29. The appellant moved an application for appointment of expert and the District Forum vide order dated 16.11.2011 ordered that it would be fair and in the interest of justice to obtain another opinion from an expert of PEC which is full of Mechanical Engineers and Experts and a letter was ordered to be written to the Principal of PEC and a report from the PEC University of Technology, Chandigarh was received and the same is reproduced as follows:-
"After the inspection of the vehicle, it was taken for test drive for 10 kms. The reading of the odometer was 527 before the test drive and 537 after the test drive. During test drive, Sh. Kulwinder Singh, Counsel for the complainant and Sh. Vinay Sharma, Works Manager, Chittosho Motors, Phase-7, Mohali were present in the car. After inspection and test driving of the vehicle, the opinion of the committee on the specifically asked questions are as under:-
1. (a) Air conditioner of the car was not giving desired cooling effect.
(b) Clutch was found defective, specially during the beginning of the test drive of the car.
(c) There were scratches/damages on the rear right door of the car.
(d) The colour of the left fender was mismatching with the colour of the front.
First Appeal No.818 of 2012 16
2. During inspection and test drive it was observed that the car met with an accident. On the request of Sh.Vinay Sharma, Works Manager, Chittosho Motors, Phase-7, Mohali, the temperature inside the car at different locations was also measured with digital temperature meter. The following observations were made:-
a) Outside temperature: 27°C
b) Temperature inside the car: 27°C
c) Temperature in front of Air condition duct grill: 17°C
d) Temperature on driver's seat: 23°C
e) Temperature in left front seat: 23°C
f) Temperature in right back seat: 23°C
g) Temperature in left back seat: 24°C
Sh. Kulwinder Singh, Counsel for the complainant also requested for the mismatching of the colour of the strip above the left front & rear door. The committee observed the mismatching of colour from the colour of the roof of the car. The committee further observed that the left front and right rear wheel rim were having scratches".
30. This report was sought by the District Forum and the appellant, as per the above report, was to pay Rs.22,060/- as inspection fee. It is also very amazing that the District Forum, instead of assessing the fee of the expert itself, left it to the whims of the authorities of the PEC University of Technology, Chandigarh and in our opinion, exorbitant fee was charged. The three members committee of the experts of PEC University of Technology, Chandigarh also found that the air conditioner of the car was not giving cooling and the clutch was defective and there were scratches, but the most important thing which the experts reported and which the District Forum did not consider, was that during inspection and test drive, it was observed that the car met with an accident. Thus, the committee of the experts have supported the version of the appellant and respondent no.2 that respondent no.1 caused the accident somewhere which created the above defects mainly First Appeal No.818 of 2012 17 of AC cooling and clutch defect and the District Forum gave the opinion that at the time of delivery of the car, the accidental car was given to respondent no.1, but this opinion of the District Forum is without any basis and is not supported by any evidence and is against the documents placed on record, such as satisfaction note of respondent no.1 himself at the time of taking delivery and thereafter, the son of respondent no.1 gave the satisfaction note, but not making any mention of the defect in the painting or mismatching of the colour. At the time of purchasing a new car, the purchaser minutely sees/inspects the car and had there been any mismatching of colour or some accidental strains, scratches or any other defect, it should have been pointed out then and there, but it was never done.
31. After the delivery, respondent no.1 brought the car in the workshop of the appellant with the complaint of 'AC not giving cooling' and the routine repairs were carried out. The committee of the experts of PEC University of Technology, Chandigarh have clearly opined that the car had met with an accident which proves that while the car was in the custody of respondent no.1, it has met with an accident and this fact the respondent no.1 concealed and has tried to put entire blame on the appellant.
32. From the above discussion, it is clearly proved that there was no manufacturing defect in the vehicle purchased by respondent no.1, but initially it had the problem in the AC and the AC was not giving the effective cooling and this defect was also pointed out by the committee of the experts of PEC University of Technology, Chandigarh and some defect in the clutch plate. The counsel for the appellant has relied upon the following authorities:-
i) "Classic Automobiles Vs Lila Nand Mishra & Anr.", I(2010) CPJ-
235(NC).
ii) "Tata Motors Ltd. Vs Sardar Ranjeet Singh & Anr.", I(2011) CPJ-
244(UP State Commission)
iii) "Maruti Udyog Ltd. Vs Susheel Kumar Gabgotra & Anr.", I(2006) CPJ-
3(SC).
iv) "Maruti Udyog Ltd. Vs Atul Bhardwaj & Anr.", I(2009) CPJ-270 (NC)
v) "Yashpal Vs SSG Pharma (P) Ltd.", IV(2006) CPJ-377. First Appeal No.818 of 2012 18
33. From the above authorities, the legal proposition settled is that only the defective parts can be replaced and not the entire car. The Hon'ble Supreme Court in the said case "Maruti Ugyog Ltd. versus Sushil Kumar Gabgotra & Anr." (supra) in para 8 observed as follows:-
"8. The obligation under Clause (3) of the Manual reads as under:
"(3) Maruti's Warranty Obligation: If any defect(s) should be found in a Maruti Vehicle within the term stipulated above, Maruti's only obligation is to repair or replace at its sole discretion any part shown to be defective with a new part of the equivalent at no cost to the owner for parts or labour, when Maruti acknowledges that such a defect is attributable to faculty material or workmanship at the time of manufacture. The owner is responsible for any repair or replacement which are not covered by this warranty."
34. Sequel to the above discussion, the present appeal (F.A. No.818 of 2012) filed by the appellant is partly accepted and the impugned order under appeal dated 25.04.2012 passed by the District Forum, directing the appellant to refund the sale price of the car to the tune of Rs.3,03,409/-, as well as registration charges of Rs.5997/- with interest @ 10% p.a. w.e.f. 11.04.2011 and 29.04.2011 respectively, and compensation of Rs.50,000/- as well as litigation expenses to the tune of Rs.10,000/-, is set aside. However, the appellant is directed to replace the Air Conditioner of the car in question and to ensure that it works properly and cooling is as per the norms, and to replace the clutch system of the car in question, within 45 days of the receipt of copy of the order. No order as to costs.
35. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days. First Appeal No.818 of 2012 19 First Appeal No.857 of 2012:-
36. In view of the reasons and discussion held in First Appeal No.818 of 2012 (Chittosho Motors Vs Hari Ram Garg & Anr.), the First Appeal No.857 of 2012 (Hari Ram Garg Vs Chittosho Motors & Anr.) is dismissed. No order as to costs.
37. The arguments in both the appeals were heard on 12.02.2013 and the orders were reserved. Now the orders be communicated to the parties.
38. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
39. Copy of the order be placed in First Appeal No.857 of 2012 (Hari Ram Garg Vs Chittosho Motors & Anr.).
(Inderjit Kaushik) Presiding Member (Vinod Kumar Gupta) Member February 26, 2013.
(Gurmeet S)