State Consumer Disputes Redressal Commission
Mr. Nagesh Chandra Muppidi Selvadri vs 1.M/S. Harsha Toyota on 4 July, 2024
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BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION: HYDERABAD.
C.C.NO. 212/2018
Between:
Mr.Nagesh Chandra Muppidi Selvadri,
1-1-593/C, Gandhi Nagar,
Hyderabad - 500 080. .... Complainant
And
1.M/s.Harsha Toyota, Harsha Automotive Pvt. Ltd., Rep. by its Managing Director , D.No.2-40/5, Kothaguda, Kondapur, Hyderabad - 500 084.
2. M/s. Toyota Kirloskar Motor Pvt.Ltd., Rep. by its Managing Director, Plot No.1, Bidadi Industrial Area, Ramnagar Taluk, Bangalore Rural District, Karnataka 562109. ...Opposite parties Counsel for the Complainants : M/s.V.Gouri Sankar Rao Counsel for the Opposite Parties : M/s.P.Vinay Kumar - OP.No.1 M/s.A.P.Venu Gopal-OP.No.2 QUORUM: Hon'ble Sri K.Ranga Rao, Member-(J), & Hon'ble Smt.R.S.Rajeshree, Member (N-J).
THURSDAY THE FOURTH DAY OF JULY, TWO THOUSAND TWENTY FOUR.
*** Order : (Hon'ble Smt.R.S.Rajeshree, Member (N-J)) ***
01). This is a complaint filed by the Complainants u/s. 17(1)(a)(i) of Consumer Protection Act,1986 on 4.10.2018 against the opposite parties to direct them as follows:
i. To retain the vehicle in their custody and compensate the complainant by refunding the amount of Rs.18,11,058.00 being the cost of the defective vehicle; ii. To pay an amount of Rs.2,05,728.00 towards compensation for the loss suffered on the interest on the loan and other miscellaneous expenses;2
iii. To pay an amount of Rs.4,00,000/- towards compensation for mental agony, loss of time and other resources;
iv. To pay the costs of the complaint. 02). The case of the complainant is that he is engaged in real
estate business and is also running educational institutions and has vast experience in the business and academic fields; that since 30 years, he has been using several vehicles within India and abroad and as such he has vast experience with regard to the basic technical aspects of automobile vehicles; that previously he has been a owner of several initial brand Innova vehicles and upon release of new model i.e. „Innova Crysta‟, with a lot of enthusiasm and high expectations, he has purchased Innova Crysta on 19.5.2016 from opposite party no.1 dealer to which the opposite party no.2 is the manufacturer. But after purchase, he has observed several draw backs in the vehicle and the most serious issue was with regard to the leakage of air into the cabin from the front doors with air cutting noise. The front doors were not designed properly, as such while driving on high ways there was severe disturbing noise as the air was entering into the cabins from the front doors. This leak of air into the cabin on the high way is causing turbulence in the vehicle and at times there is some imbalance in the movement of the vehicle which is very dangerous.
The opposite party manufacturer had compromised on the design of the vehicle more particularly with regard to the aerodynamics of the vehicle resulting in leak of air from front doors. This defect in design is severe threat as air pressures created in the vehicle may result in the imbalance in the vehicle which could lead to the disaster which also affects the speed and mileage of the vehicle when driven on high ways. This defect was brought to the notice of opposite party no.1 by lodging a complaint upon which one expert from opposite party no.2 Mr.Dharma Raj has also opined that there was a defect in the doors and had promised to rectify the same, but however, the opposite party had delivered the car without rectification. The opposite party no.1 made the complainant to run around their work shop for 3 months, lastly on 5.12.2016 handed over the vehicle stating that 3 the rectifications were done. But after running the vehicle for some time it has come to the notice of the complainant that the problem persisted and was never rectified by the opposite parties. Even after running of the vehicle for 25000 Kilometers, the situation did not improve and when the same was informed to the opposite party, the same was brushed aside by the opposite parties. The opposite party informed that they would be arranging an expert from Bangalore but never did so and started avoiding the complainant. As such, the vehicle is not being used and is lying in the garage. Subsequently the opposite party repeatedly called the complainant and asked him to handover the vehicle which was handed over to the opposite party on 17.5.2018. However, within no time, the opposite party started calling the complainant to come and receive the vehicle, though they have not rectified the main problem of air leakage into the cabin. As such, the complainant got issued a legal notice on 22.5.2018 calling upon them to rectify the defect to the satisfaction of the complainant within 7 days or alternatively to retain the vehicle and refund the total amount paid. As the opposite party failed to reply to the said notice, the complainant having no other option is before this Commission seeking a direction to the opposite party to retain the vehicle and to refund the total cost of the vehicle, to pay compensation and costs.
03). Opposite party no.1 filed written version while admitting purchase of vehicle from their show room, but however stated that the complainant being a satisfactory customer of Toyota brand vehicle, it is unfortunate for raising such allegations and making baseless statements; that there are no impairment or abnormalities or defects in his Innova Crysta Vehicle; that on several occasions, the complainant was appraised by personal visits through letters and e-mails that the air cutting noise is not an abnormal feature and that the team of experts have investigated exhaustively the complainant‟s vehicle and found no defects or abnormality; that it is only an apprehension of the complainant who is mislead by some wrong advises; that whenever the complainant brought the vehicle for servicing, he took delivery of the vehicle with complete satisfaction and in order to convince the complainant that the air cutting noise is well within the acceptable parameter of the manufacturer and it does not 4 create any threat to the stability of the vehicle, the technical team had carried out a test drive along with the complainant in a vehicle of same make and the same year of manufacturing. But the complainant is not accepting the fact that the vehicle is absolutely in good condition, inspite of the technical team clearly indicating that there is no abnormality in the vehicle, the complainant has filed the present complaint only with a malafide intention either to get a new vehicle or refund of money and that there are no defects in the vehicle hence prayed that the complaint be dismissed with exemplary costs.
04). The opposite party no.2 filed written version while admitting that they are the manufacturers of Toyota Crysta vehicle had opposed the complaint on the ground that there is no deficiency in service on their part, since the opposite party no.1 had been providing the required services from time to time to the complainant. Further the opposite party had taken an objection that the complainant is using the vehicle for enriching his business which amounts to commercial activity. The opposite party further pleads that the relationship between the opposite party no.1 and 2 is on principal to principal basis by virtue of dealership agreement and that the opposite party no.1 sells the same to the customers, as such issues relating to the booking , delivery , cancellation, servicing, customer relations etc. are independently handled by the dealers. Hence this opposite party cannot be made liable for any such things; that the present complaint is filed by suppressing the vital aspects including the fact that the complainant had failed to follow the terms and conditions of the owner‟s manual and that the purchase of the vehicle is subject to limitations, warranty and exceptions incorporated in the Owner‟s Manual and in violation of the said limitations vitiates any claim under contract.
The opposite party further pleads that the complaint of flow of air from outside into the main cabin has been successfully attended by the opposite party no.1 during the warranty period, which is evident from the documents filed by the complainant and as on 14.6.2016 the vehicle had run around 3153 kl.mts and when the vehicle reported to opposite party no.1 on 24.11.2016, 5 the kilometre reading was 11981 kl.mts. The fact that the vehicle had travelled for 11000 kl.mts. itself shows that the vehicle is in good condition and there has been no other allegation with regard to the performance of the vehicle.
In order to prove that the said sound of air cutting is within the acceptable parameters, this opposite party had sent the vehicle for test drive along with the technical team and complainant; that further a similar vehicle manufactured in the same year was again taken for a test drive wherein the complainant was also taken along with the technical team to inspect about the problem and it was informed that the said noise was in an acceptable parameters of the manufacturer. On 30.12.2016 a letter was sent to the complainant requesting him to take back the vehicle followed by letters dt.21.1.2017 and 1.2.2017, upon which the complainant had received the vehicle on 15.2.2017 and reading showed 13135 kl.mts. but the complainant brought back the vehicle on 17.5.2018 wherein Odometer reading 28,453 which itself shows that the vehicle had run for around 30,000 kl.mts. without there being any problem with regard to the performance of the vehicle. Further the complainant got issued a legal notice to the opposite party which was suitably replied on 4.6.2018, but however, the complainant failed to refer to this reply and that only with a malafide intention has come up with this complaint to enrich himself at the cost of the opposite party and in the reply notice, it is specifically made clear that the vehicle was thoroughly investigated by the team of technical competent engineers on various para meters like vehicle stability, vehicle speed and fuel consumption during high speeds and found that there was no abnormality in the vehicle and also found that there were no defects in the vehicle; that inspite of providing best services available, the complainant is embarking on the same issue without there being any reason for the same. Hence the complaint of the complainant is devoid of merits and no reliefs can be granted as claimed by the complainant and only to enrich, himself the present complaint is filed and hence prayed that the complaint be dismissed with exemplary costs.
05). Evidence affidavit of the complainant as PW.1 filed and got marked Exs.A1 to A8. Mr.P.C.Cherian, In charge of opposite party 6 no.1 filed evidence affidavit and got marked Exs.B1 to B4 . Mr.T. Dharmaraju, Asst. Manager of opposite party no.2 filed evidence affidavit. Expert Report is marked as Ex.X1.
06). Heard arguments of both sides and perused the entire material on record.
07). Now the points that arise for consideration are :
i. Whether there is any deficiency of service on the part of the opposite parties?
ii. Whether the complainant is entitled for the reliefs prayed in the complaint?
iii. To what reliefs?
08). Point no.i : The specific case of the complainant is that he has purchased Innova Crysta vehicle from the opposite party no.1 dealer which is manufactured by opposite party no.2 on 19.5.2016, but within no time, he had noticed that the vehicle had a serious issue of leaking of air into the cabin from the front door which is creating an air cutting noise and quite disturbing while the vehicle is being driven which is also causing turbulence in the vehicle. At times there is some imbalance in the movement of the vehicle when driven on high ways which is very dangerous;
that though the complainant had reported the same in 1st and 2nd servicing of the vehicle, the authorised service centre though carried out certain repairs, the problem is still subsisting ; that this air cutting sound in the newly purchased car is nothing but a manufacturing defect i.e. defect in design of the car and inspite of repairs, the said defect is not being rectified. When the same was brought to the notice of the dealer and manufacturer, though the opposite parties promised to call some expert and get the vehicle checked, but failed to do so. Finally on 17.5.2018 the opposite parties have taken the car for servicing and without carrying out the repairs started calling the complainant again and again to take the delivery of the car and since the opposite parties failed to rectify the air leakage problem, the complainant had got issued the legal notice to the opposite parties to retain the vehicle and return the total amount paid along with interest. As the opposite parties failed 7 to respond the present complaint was filed. In support of his case, the complainant got marked Exs.A1 to A8.
It is case of manufacturing defect as alleged by the complainant. The purchase of vehicle by complainant is not in dispute Ex. A2 is the service request dt.14.06.2016 wherein the opposite party No.1 had carried out the servicing of the vehicle and the following repairs were done. "RR-RH DOOR PAD ADJUST DONE" "RR LH PILLAR ADJUST DONE" Ex.A3 is second servicing done on 24.112016 wherein the opposite party had carried out the following repairs. " FRONT LH DOOR NOISE ADJUST DONE" What is manifest from Ex. A2 and A3 is that from the very first month of purchase of car, there is problem in the front doors which needed rectification, but it is to observed that there is no problem with regard to the speed or mileage of the car, since by 24.11.2016 the car had run around 11,981, Kilometres. It is pertinent to note that other than the air cutting noise there is no other defect pleaded by the complainant and the mileage goes to show that the car is in a roadworthy condition and it is not incapable of operation.
09). Now the point is whether the recurring problem of air cutting noise can be considered as manufacturing defect. Though the term "manufacturing defect" is not defined anywhere in the act but he term defect finds place in the definitions of Consumer Protection Act,1986 under Sec.2 and the term defect is defined as under, "defect" means any fault, imperfection or short coming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or [ under any contract, express or implied or] as is claimed by the trader in any manner whatsoever in relation to any goods;
10). And the courts have been trying to conclude "manufacturing defect" based on the facts and evidences of each case and in the lay terms manufacturing defect means " the manufacturer made an error either in the design or the fabrication of a product that causes it to not work as intended." Or 8 "A product defect is any characteristic of a product which hinders its usability for the purpose for which it was designed and manufactured."
11). In a recent decision i.e.in Maruthi Suziki India Ltd Vs Deepak Singh & another by NCDRC Hon'ble Justice Deepa Sharma dt.26.03.2021, the Hon‟ble NCDRC had confirmed the order of the State Commission, Delhi in a revision petition filed by the manufacturer and held that the order of the State Commission, Delhi needs no interference and the State Commission had held in the order that.
"In our opinion, such repeated visits to the workshop are more than sufficient to demonstrate that the vehicle had some fault, which was brought to the notice of the „dealer‟ within three months of the purchase of the vehicle, and was admittedly repaired, during the warranty period. The bare fact that a brand new car needs to be taken to the workshop number of times, is per se demonstrative of the fact that there were shortcomings in the car. It was suffering from defects and was much below the expected quality and standard of the vehicle manufactured by "Suzuki."
12). And in the case in hand also though the utility of car is not effected, the specific complaint of air cutting noise was noticed within one month of purchase and inspite of several repeated repairs the problem persisted which is evident form Ex. A1,A2 and A3.
There is no dispute that there is air leakage in the car. Since the Opposite parties have admitted the same, but however claims that it is not abnormal and further asserts that they have checked several others Toyoto Crysta Vehicle of same model and manufactured in the same year and found that in all other vehicle there is such air leakage and that it is a normal condition. However one Mr. M.Dastagiri was appointed to inspect the vehicle, during the pendency of CC. As an expert, he had inspected the vehicle and filed his report which is marked has Ex. X1, who had also confirmed that there is air cutting sound emanating while the 9 car is being driven beyond 70 kmph speed and opined that the same may be due to misalignment of car body shell. It is pertinent to note that by 17.05.2018 the vehicle had run around 28,433 kl.mts. in 2 years. The complainant handed over the vehicle to the opposite party on 17.05.2018 after substantially using the car for around 2 years and the car having run for 28,433 kl.mts. but since then did not choose to collect the car from the opposite party No.1 and proceed by issuing a legal notice and subsequently filing the present complaint.
Now the point arises is whether the problem of air cutting sound in the car without effecting the speed and mileage of the car will by itself entitle the complainant for replacement of the car. It is settled law that when there is a possibility to rectify the defect by replacing a part a direction for replacement of the car would not be proper. In a recent judgment the Hon‟ble NCDRC in Randhit Singh VS M/s Maharaja Auto wheels (P) Hyderabad & Another on 31.05.2024 had dismissed the Appeals filed by the complainant by conforming, the order of the State commission which had modified the District commissions order of replacement of car by directing the to replace the doors with new ones and in the instant case also the only problem is with regard to the air cutting sound due to air leakage form the front doors of the car and the opposite party had been only rectifying the front doors with minor repairs instead of replacing the front doors wherein the problem of air cutting sound is reoccurring in spite of repairs. Therefore we feel that opposite parties should have replaced the front doors instead of rectifying the same.
Based on the above discussion and considering that the defect is only a technical defect and is not effecting the performance of the car we feel that as the complainant had used the vehicle for 2 years without any problem of speed and mileage of the vehicle but certainly had to face some nuisance due to the air cutting sound emanating from the car the complainant would be entitled for replacement of the front doors but not the refund of money after substantially using the car for 2 years. Therefore we are not inclined to direct the opposite parties to refund the cost of the car but certainly the opposite party are liable to replace the front doors with the new ones and rectify the car with regard to any other repairs that may be noticed due to the car lying unused since 2018.
10The failure on the part of opposite party to replace the front doors and rectify the problem of air cutting sound once for all and handover the vehicle to the complainant is nothing but avoiding the responsibility which amounts to deficiency of service and the fact that since the 2018 the complainant is not in a position to use the vehicle might had certainly caused severe hardship and the inconvenience to the complainant. Therefore, we feel that the opposite party is liable to pay reasonable compensation to the complainant. Further we feel it would be justified if the opposite party No.2 is directed to extend the warranty for two years from the date of handing over the car to the complainant.
In the result, the complaint is allowed in part directing the opposite party No.1 and 2. Jointly and severally.
i) To Replace the front doors of the car belonging o the complainant.
ii) To Carry out any other repairs that might be noticed due to the vehicle lying idle since 17.05.2018 and hand it over to the complainant in a Roadworthy condition.
iii) To pay a compensation of Rs.50,000/- for the inconvenience and hardship caused to the complainant.
iv) To pay costs of Rs.25,000/- Further.
v) Opposite party No.2 is directed to provide 2 years warranty to the car, from the date of handing over the car to the complainant.
Time for compliance is 30 days from the date of receipt of this order.
Typed to the dictation to the Stenographer on system, corrected and pronounced by us in the open bench on 04.07.2024.
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MEMBER (J) MEMBER (M-NJ)
Dated: 04.07.2024
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APPENDIX OF EVIDENCE
Witnesses examined
Evidence affidavit of Evidence affidavit of
The Complainants: Opposite Parties:
PW1:Nagesh Chandra Muppidi Selvadri RW1:Mr.(P.C.Cherian)
Exhibits marked on behalf of the complainant:
Ex.A1 : Photostat copy of Invoice dt.11.05.2016. Ex.A2 : Photostat copy of service request dt.14.06.2016. Ex.A3 : Photostat copy of service request dt.24.11.2016. Ex.A4 : Photostat copy of service request dt.17.05.2018. Ex.A5 : Photostat copy of Bank statement of Account Ex.A6 : Photostat copy of legal notice dt.22.05.2018 Ex.A7 : Photostat Copy postal acknowledgment of Opposite party No.1.
Ex.A8 : Photostat Copy postal acknowledgment of Opposite party No.2.
Exhibits marked on behalf of the opposite parties:
Ex.B1 : Photostat copy of Tax Invoice dt.30.12.2016. Ex.B2 : Photostat copy of letter to the complainant on test drive taken on dt.30.12.2016.
Ex.B3 : copy statement of Reply Email from the complainant asking reply from the opposite party No.2 (Manufacture) dt.05.01.2017.
Ex.B4 : copy statement of Reply Email from the complainant asking reply from the opposite party No.2 (Manufacture) SD/- SD/-
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Dated: 04.7.2024