State Consumer Disputes Redressal Commission
The Maruti Wagonr Stingray Cars vs Sham Sunder And Ors. on 25 October, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 794 of 2016
Date of Institution : 18.10.2016
Date of Decision : 25.10.2017
The Maruti Wagonr Stringray Cars, SCO 39-40, Sector 8-C,
Madhya Marg, Chandigarh through
The Maruti Wagon-R Stingray Cars (Maruti Suzuki India Limited)
Plot No. 1, Nelson Mandela Road, Vasant Kunj, New Delhi-
110070
....Appellant/Op No. 1
Versus
1. Sham Sunder S/o Shri Sarup Chand, R/o Street No. 9,
Sector-A, Ram Nagar, Near Anvart Bal Bharti School, Indira Basti,
Sunam, Sangrur.
....Respondent No.1/Complainant
2. M/s Try City Autos, Zirakpur Patiala Highway, Near AKM
Resorts, Zirakpur, Distt. Mohali
3. M/s Max Autos Dhuri Road, Sangrur, Tehsil & District
Sangrur.
...Respondent Nos. 2&3/Op Nos.2&3
First Appeal against the order dated
25.07.2016 of the District Consumer
Disputes Redressal Forum, Sangrur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
First Appeal No. 794 of 2016 2
Present:-
For the appellant : Sh. Salil Sablok, Advocate
For respondent No.1 : Sh. Varun Garg, Advocate
For respondent No.2 : Ex.-parte
For respondent No.3 : None
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The appellant/Op No. 1 (hereinafter referred as Op No.1) has filed the present appeal against the order dated 25.7.2016 passed in consumer complaint No. 1367 dated 21.10.2015 by the District Consumer Disputes Redressal Forum, Sangrur (hereinafter referred as the District Forum) vide which the complaint filed by the complainant was allowed with the direction to Op No. 1 to replace the car in question with new one or in the alternative to refund Rs. 3,83,396/- alongwith interest @ 9% p.a. from the date of filing of the complaint i.e. 21.10.2015 till realization. It was further directed to pay a sum of Rs. 10,000/- as compensation and Rs. 5,000/- as litigation expenses.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the opposite parties (hereinafter referred as Ops) on the averments that Op No. 1 is manufacturer, Op No. 2 is dealer and Op No. 3 is Authorised Service Station of Maruti cars. Complainant approached Op No. 2 to purchase a car and purchased a Maruti Wagonr Stingrey car bearing engine No. K10BN7393582, chassis No. MA3EWDEIS00778056 on 29.9.2014 vide invoice No. VSL14000599 for a sum of Rs. 3,83,396/-. Op No. 2 gave 3 years First Appeal No. 794 of 2016 3 warranty with regard to every kind of defect in the car. However, after one month from the purchase of the car, the car developed some problem, the complainant made telephonic call to Op No. 2 and explained the problem. Op No. 2 advised to contact Op No. 3. The complainant approached Op No. 3 on 22.11.2014 vide job card No. JC14010061 and explained the problem to Op No. 3. After checking of the said car, Op No. 3 found crank shaft problem, liquid gas kit, gas kit head and other problems. The crank shaft could be replaced after opening the engine. Employees of Op No. 3 told the complainant that it was a manufacturing problem and Op No. 3 replaced the defective parts with new one and returned back the car to the complainant. After another two months the car created problem in clutch. The complainant approached Op No. 3 and Op No. 3 replaced the clutches with new one. On 13.4.2015, the car again created the problem. He again approached Op No. 3, Op No. 3 issued job card No. JC15000663 and found problem i.e. flywheel, cover Assy clutch and clutch disk and clutch plates and Op No. 3 repaired the defective parts. Thereafter, the complainant approached Sukhbir Singh, Mechanic of Sunam and explained all the defects to him and after inspection, Sukhbir Singh told the complainant that crank shaft can be changed after opening the engine, therefore, the car deserves to be replaced. Complainant approached Op Nos. 1 & 2 and requested to replace the defective car with new one. Op assured the complainant that they will discuss the matter with the Company but they had been putting of the matter on one pretext or the other and now they flatly First Appeal No. 794 of 2016 4 refused to replace the car with new one. The car is in stop condition. When he tried to start the said car, burnt smell was coming out. Complainant served a legal notice dated 3.9.2015 through his counsel Sh. Vikrant Garg and made a request to replace the car or to refund the amount but without any result. Alleging deficiency in service on the part of Ops, complaint was filed before the District Forum seeking directions against the Ops to replace the car or in the alternative the Ops be directed to refund a sum of Rs. 3,83,396/- alongwith interest @ 18%, compensation for mental tension, pain, agony and harassment Rs. 50,000/-, garage expenses Rs. 20,000/- and litigation expenses of Rs. 11,000/-.
3. Upon notice, Ops filed their respective written replies. Op No. 1 in its written reply took the preliminary objections that the complaint is without cause of action as Ops have fulfilled the warranty obligations. The liability of this Op is as per Clause No. 3 of the warranty policy as set out in owner's manual and service booklet and that there is no deficiency in service on the part of this Op. On merits, purchase of the car by the complainant, manufactured by this Op is admitted. It was denied that vehicle would be replaced during the warranty period in case any manufacturing defect was found. This car stood warranty for a period of two years or 40,000 Kms, whichever is earlier and subject to terms and conditions as set out in owner's manual and service booklet. Ops undertook the repair, replaced the equipment shown to be defective at its sole discretion. The complainant is First Appeal No. 794 of 2016 5 liable to pay the charges of repair/replacement, which are not covered under the warranty. It was denied that Op assured to replace the car. The complainant had reported to the engine starting problem on 22.11.2014. On checking, it was found that it occurred due to some impurity in the engine assembly through fuel. However, the vehicle was attended under warranty free of charge. The engine overhaul was carried out and all parts were replaced with new parts free of cost and after that vehicle was handed over to the complainant, who was satisfied with the working of the vehicle. The complainant had reported the problem of clutch on 16.1.2015 at a mileage of 1021 Kms. and then on 15.4.2015 at a mileage of 2097 Km. It was observed that due to excess pressure of clutch, due to wrong driving habit, the clutch plate got burnt. The Workshop replaced the clutch assembly on both the occasions free of cost as a goodwill gesture. The clutch is very sensitive part and burnt due to overriding of the clutch. There is no manufacturing defect in the vehicle as alleged by the complainant. Sukhbir Singh, Mechanic is not professionally qualified to comment or opined on the issue involved and his opinion has no weightage in the eyes of law. C.P. Act is complete code. Under Section 13 of the Act, Forum may exercise its discretion to send it to appropriate laboratory. Further the Hon'ble Supreme Court in case 'Maruti Suzuki Vs. Sushil Kumar Gabrotra and others' held that replacement of the vehicle neither justifiable nor warranted in the case of warranty with specific obligations. The complainant cannot claim beyond the warranty terms. The First Appeal No. 794 of 2016 6 complainant has no cause of action to file this complaint. No deficiency in service on the part of this Op. Complaint is without merit, it be dismissed.
4. Op No. 2 in its reply stated that the Forum had no territorial jurisdiction to try the present complaint as the vehicle had purchased from Zirakpur, District Mohali; the complaint is not maintainable as manufacturer of the vehicle was not impleaded as a party; there was no defect, delay or deficiency on the part of this Op as the complainant approached this Op with his desire to purchase the vehicle in question and this Op after complying with each and every necessary formality delivered the vehicle to the complainant as per warranty contained in the manual so supplied to the complainant. The report dated 14.10.2015 cannot be considered as an expert opinion because the expert report can be from a person, who is specialized in the subject and that the complainant never approached this Op at any point of time complaining about the problem with regard to the vehicle in question and complainant is just trying to twist the fact as per his own convenience. On merits, purchase of the vehicle is a matter of record. The averments stated in the preliminary objections were reiterated. It was stated that there is no deficiency in service on the part of this Op. Complaint is without merit against this Op, it be dismissed.
5. Op No. 3 in its reply stated that the complainant on 22.11.2014 approached this Op regarding the defect in his car. On that day, it was reported that engine of the car did not work. This First Appeal No. 794 of 2016 7 Op checked and removed all the defects by replacing various parts including liquid gas kit, crankshaft etc. as the vehicle was within the warranty period and the car was returned to the complainant on 6.12.2014. Complainant again brought the car on 16.1.2015 regarding the problem in the clutch, Op checked it and clutch was replaced. On 13.4.2015, car was brought to this Op. This Op checked the car and complainant was intimated that clutch plates of the car are getting damage as the car is being driven with half clutch and due to this reason clutch plates of the car are getting damage. The complainant insisted upon changing of the clutch plates and this Op on the demand of the complainant, replaced the clutch set of the car alongwith flywheel. It was done within the warranty period, therefore, no money was charged from the complainant. It was denied that there was any technical or manufacturing defect in the vehicle. The checking of the car from an unauthorized mechanic i.e. Sukhbir Singh is breach of warranty policy. As there is no manufacturing defect in the vehicle, therefore, question of replacement does not arise. Complaint is without merit, it be dismissed.
6. Before the District Forum, the parties were allowed to lead their respective evidence.
7. In support of his allegations, the complainant had tendered into evidence his affidavits Exs. C-1 and C-2 and documents Exs. C-3 to C-20. On the other hand, Op No. 1 had tendered into evidence documents Exs. Op-1/1 to Op-1/5. Op No. 3 had tendered affidavit of Anil Kumar Garg Ex. Op-3/1, affidavit of First Appeal No. 794 of 2016 8 Sukhjeevan Singh Ex. Op-3/2 and documents Exs. Op-3/3 to Op- 3/12.
8. After going through the allegations in the complaint, written version filed by Ops, evidence and documents brought on the record, the complaint was allowed as referred above.
9. Aggrieved with the order passed by the learned District Forum, the appellant/Op No.1 has filed the present appeal.
10. We have heard the learned counsel for the parties and have carefully gone through the record of the case.
11. It was argued by the counsel for the appellant/Op No. 1 that order passed by the District Forum is perverse against the established facts as well as law of the land as the District Forum has failed to appreciate the evidence and warranty terms. The complainant has failed to bring on the record any specific evidence showing inherent manufacturing defect in the vehicle. Otherwise, when he brought the vehicle with any problem, it was attended by Op No. 3 and problem was sort out and where any spare part was required to be replaced, it be replaced. The clutch plate although not covered under the warranty terms but as a goodwill gesture, it was also replaced being within the warranty period. He has referred to warranty Clause No. 3, which reads as under:-
"(3) Maruti Suzuki's Warranty Obligation:
If any defect(s) should be found in a Maruti Suzuki vehicle within the term stipulated above, Maruti Suzuki's only obligation is to repair or replace at its sole discretion any part First Appeal No. 794 of 2016 9 shown to be defective, with a new part or the equivalent at no cost to the owner for parts or labour, when Maruti Suzuki acknowledges that such a defect is attributable to faulty material or workmanship at the time of manufacture. The owner is responsible for any repair or replacements which are not covered by this warranty."
He has also referred to Clause 4(1), which reads as under:-
"(4) Limitation:
This warranty shall not apply to:
(1) Normal maintenance service required other than the
three free services, including without limitation, oil and fluid changes, headlight aiming, fastener retightening, wheel balancing, wheel alignment and tyre rotation, cleaning of injectors, adjustments of carburetor, ignition timing, clutch and valve clearance."
12. In case we go through these terms, the clutch plate is not covered under the warranty replacement and according to Clause No. 3, the Op is only under obligation to repair/replace any part shown to be defective with a new part or the equivalent at no cost to the owner for parts/labour. Therefore, in case any defect has occurred during the warranty period, the obligation of the Op is only to replace the defective part and not the entire vehicle. To support this preposition, reliance has been placed upon "Maruti Udyog Ltd. versus Susheel Kumar Gabgotra & Anr.", delivered on 29.3.2006 by the Hon'ble Supreme Court wherein after referring the warranty clause, it was held that in case during First Appeal No. 794 of 2016 10 the warranty period any defect is reported then it is to be rectified and in case any defective part is to be replaced, it will be replaced but the Hon'ble Supreme Court did not support with regard to total replacement of the vehicle. The counsel for the complainant has referred to the judgment of the Hon'ble Supreme Court reported as 2000 (10) SCC 654 "Hindustan Motors Ltd. and Another versus N. Siva Kumar and Another". In that case, defective car was sold, which was ordered to be replaced. They have also referred to the judgment of the Hon'ble National Commission reported as 2003(1) ALT 37 "Mahindra & Mahindra Ltd. versus Vasantrao Dagaji Patil and Anr.". In that case, vehicle gave trouble to the complainant from the very start and Op did not give the proper service to the complainant and in those circumstances, it was ordered to be replaced. However, the judgment of the Hon'ble Supreme Court passed in "Maruti Udyog Ltd. versus Susheel Kumar Gabgotra & Anr." (supra) is the latest judgment and it is to be followed. Moreover, the vehicle of the complainant was taken by the complainant to Op No. 3 Authorised Service Station of Op No. 1 and on all three occasions, it was attended to and where the defective parts were required to be replaced, those were replaced. Now the vehicle is in a stop condition and he had got it checked from Sukhbir Singh, Mechanic, who has stated that crank shaft cannot be replaced without opening of the engine and in case the engine was opened then it should be replaced. No doubt that in case crank shaft was replaced, it might involve the opening of the engine but after fixing of the crank shaft and other First Appeal No. 794 of 2016 11 parts, which were required at that time, the complainant has not reported for any problem with regard to those parts again. Merely because engine was opened for replacing the crank shaft, it does not mean that repair was not proper or that it will warrant replacement of the vehicle. With regard to the report of Sukhbir Singh, it has been stated that he has been working as a mechanic for the last 25 years but no qualification has been referred in the certificate. No affidavit of this mechanic has also been filed to give a chance to the Op to cross check what is his qualification. Therefore, such a report cannot be accepted. No other technical expert report has been placed on the record to say that the vehicle in question has inherent manufacturing defect. During the trial before the District Forum, no application under Section 13(1)(c) was given by the complainant to refer the vehicle to an expert opinion to check whether the vehicle has inherent manufacturing defect or whether the defect, if any, is repairable. Therefore, in these circumstances, we are of the opinion that there is no evidence with regard to inherent manufacturing defect in the vehicle and unless there is inherent manufacturing defect, the vehicle cannot be replaced according to the warranty terms, it can be repaired or defective parts can be replaced and counsel for the appellant/Op No. 1 stated that they are still ready to check the vehicle and make it road worthy. In these circumstances, the order passed by the District Forum regarding replacement of the vehicle and in the alternative to refund the invoice amount of the vehicle, is not justified. At the most, the Op can be asked to repair the First Appeal No. 794 of 2016 12 vehicle, if any, spare part is required to be replaced, it could be replaced and make it road worthy to the satisfaction of the complainant. Counsel for the respondent No.1/complainant has not been able to justify how he is entitled for replacement of the vehicle, if there is any defect in the vehicle, it does not warrant for replacement. In case it is within the warranty period, it can be rectified or defective parts could be replaced, therefore, the order passed by the District Forum requires modification.
13. Sequel to the above, we partly accept the appeal. Order passed by the District Forum for replacement of the car with new one or in the alternative for refund of the invoice amount is set-aside. Direction is given to the Ops to check the vehicle. In case it has any defect, rectify it. In case any spare part is to be replaced, replace it, make it road worthy to the satisfaction of the complainant and gave a certificate that the vehicle in question is road worthy. The amount of compensation and litigation expenses will remain as it is as awarded by the District Forum.
14. The appellant No. 1 had deposited an amount of Rs. 25,000/- and Rs. 1,00,000/- with this Commission in the appeal. Out of this amount, after expiry of 90 days period, a sum of Rs. 15,000/- be paid to respondent No.1/complainant as allowed by the District Forum on account of compensation and litigation expenses. The remaining amount will be released in favour of appellant No.1 on giving a certificate that the vehicle in question has been repaired/rectified to the satisfaction of the complainant and on submitting road worthy certificate of the vehicle. First Appeal No. 794 of 2016 13
15. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
16. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER October 25, 2017.
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