State Consumer Disputes Redressal Commission
Rampal Singh vs The Swami Automobiles Pvt. Ltd., on 1 October, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 239 of 2012 Date of Institution : 19.07.2012 Date of Decision : 01/10/2012 Rampal Singh, son of Sh. Karan Singh, presently residing at H.No.192, Ochandi Road, Near Old Police Post, Ramesh Nagar Colony, Bhuwana, New Delhi. Appellant/complainant V e r s u s 1. The Swami Automobiles Pvt. Ltd., through its Managing Director, Authorized Dealer: Mahindra & Mahindra Ltd., Plot No.33, Industrial Area, Phase I, Chandigarh. 2. Mahindra & Mahindra Ltd., through its Managing Director, Mahindra India & World Headquarters, Mahindra Towers, GM Bhosale Marg, Mumbai 400018. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Ramesh Goyat, Advocate for the appellant.
Sh. Krishan Singla, Advocate for respondent no.1.
Sh.Vaibhav Narang, Advocate for respondent no.2.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 03.07.2012, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it partly accepted the complaint, filed by the complainant (now appellant) and directed the Opposite Parties (now respondents), as under:-
In view of the above findings, we deem it appropriate to partly allow this complaint. Therefore, the same is partly allowed. The OPs are directed to replace the body shell of the vehicle as well as carryout anti-rust treatment of its chassis, free of cost, within a period of 30 days from the date of receipt of vehicle from the complainant. However, the complainant is directed to take the vehicle to the workshop of OP No.1 within a period of 15 days from the date of receipt of copy of this order. There is no order as to compensation or costs.
2. The facts, in brief, are that the complainant purchased one MAXX11 RGD 2WD9STR SF MDITC NGT520 BS3 vehicle, bearing temporary registration No.CH-23-T-0234, from Opposite Party No.1 on 22.6.2011, by paying a sum of Rs.5,17,000/-. The said vehicle was got financed from the State Bank of India. It was got insured from the Oriental Insurance Company Ltd., for the period from 22.6.2011 to 21.6.2012. It was stated that due to the inherent manufacturing defects, in the vehicle, the bonnet of the same, started rusting, from the inner and upper side, within one month of its purchase. Accordingly, the vehicle was taken to the Service Centre of Opposite Party No.1, on 11.7.2011, for its repair and service. It was further stated that Opposite Party No.1, did the service of the vehicle, and directed the complainant, to come on 21.7.2011, for curing the rusting defect of the vehicle. The complainant took the vehicle to the Service Centre of Opposite Party No.1, on 21.7.2011. The bonnet of the vehicle was repainted, from the inner and upper side, and, thereafter, the vehicle was handed over to the complainant on 22.7.2011. It was further stated that after one month of repaint of the bonnet, the body, chassis and engine of the vehicle started rusting. The complainant, again took the vehicle to Opposite Party No.1, on 8.9.2011. Opposite Party No.1, advised the complainant, to bring the vehicle, on 28.9.2011. On 28.9.2011, the complainant took the vehicle to the Service Centre of Opposite Party No.1, for inspection. Opposite Party No.2, agreed to replace the body shell and give antirust treatment to the chassis of the vehicle. It was further stated that even if the body shell of the vehicle was replaced and antirust treatment of its chassis was done, the engine of the same, which had also rusted, will remain the same, and life of the vehicle, which mainly depended on the engine, would be shorter and undependable. It was further stated that the aforesaid defects, were inherent manufacturing defects. It was further stated that the vehicle had been parked, in the Service Centre of Opposite Party No.1, since 28.09.2011. It was further stated that legal notice dated 27.10.2011, was also served upon the Opposite Parties, either for replacement of the vehicle, or refund of the price thereof, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence 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 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the price of the vehicle or replace the same, with a new brand vehicle of the same model and price, apart from the accessories, which were got fitted by the complainant, out of his own expenses; pay compensation for mental agony, physical harassment, depression and deficiency, in rendering service, to the tune of Rs.2 lacs; and pay cost of litigation, to the tune of Rs.10,000/-.
3. Opposite Party No.1, in its written version, admitted that the complainant brought the vehicle, to its Service Centre on 11.7.2011, for first free service. It was stated that the vehicle was thoroughly examined, and a little rusting was found on the bonnet. It was further stated that the vehicle was repainted, free-of-cost. It was further stated that, for the satisfaction of the complainant, the replacement of complete body shell of the vehicle, had been proposed, alongwith antirust treatment of the chassis, to avoid any future difficulty. It was admitted that the vehicle has been lying in the Service Centre of Opposite Party No.1, since 28.09.2011. It was denied that there was any inherent manufacturing defect, in the vehicle. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. .Opposite Party No.2, in its written version, stated that there was no inherent manufacturing defect, in the vehicle. It was further stated that, rusting of some parts of the vehicle could not be said to be inherent manufacturing defect. It was denied that the engine of the vehicle was rusted. It was further denied that the complainant was entitled to claim the replacement of the vehicle, with a new one, or refund of the price thereof. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, partly accepted the complaint, in the manner, referred to, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant, seeking modification of the impugned order, by allowing the complaint, as per the relief claimed by him, in the same.
8. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant, submitted that the mere fact, that the vehicle was taken to the Service Centre of Opposite Party No.1, again and again, within the short span of its purchase, as its bonnet, body shell and engine were rusted, in itself, was sufficient to prove that it suffered from inherent manufacturing defects. He further submitted that had the vehicle been not suffering from any inherent manufacturing defect, then, within the short span of time of its purchase, the complainant would not have been compelled to take the same, to the Service Centre, of Opposite Party No.1, for attending to the same. He further submitted that the complainant, purchased the vehicle, in question, by paying a huge price, for the purpose of his personal use, but he could not enjoy the ride therein, due to rusting of the bonnet, body shell and the engine thereof. He further submitted that since the facts aforesaid, speaks volumes for themselves, with regard to the inherent manufacturing defects, in the vehicle, and, under these circumstances, non-production of expert evidence, did not disprove the case of the complainant. He further submitted that the District Forum, did not properly appreciate the evidence, and also failed to take into consideration, the facts and circumstances of the case, as a result whereof, it fell into a grave error in coming to the conclusion, that the vehicle did not suffer from any inherent manufacturing defect. He further submitted that, even the District Forum, did not take into consideration Annexure C-7, the job card, clearly showing that even the engine of the vehicle was rusted, and, as such, no direction with regard to the rectification of such defect or replacement of the engine, was given by it. He further submitted that the District Forum, erred in not granting the relief, either of replacement of the vehicle or refund of the price thereof, and also compensation for mental agony and physical harassment, caused to the complainant. He further submitted that, as such, the order of the District Forum, being not legally correct, is liable to be modified.
10. On the other hand, the Counsel for the respondents, submitted that, no doubt, the vehicle was brought to the Service Centre of respondent no.1, on 11.07.2011 i.e. within less than one month of its purchase for first free service. They further submitted that, since the bonnet of the vehicle was rusted, the same was repainted from the inner and upper side, and, thereafter, the vehicle was handed over to the complainant, on 21.07.2011. They further submitted that the vehicle was duly inspected/examined, by their experts and lastly a bit of rusting was found on the body of the vehicle, which could be removed by doing the necessary repairs i.e. by painting. They further submitted that as a goodwill gesture, it was proposed to change the body shell of the vehicle. They further submitted that the engine of the vehicle was not rusted. They further submitted that mere rusting of the bonnet or some other part of the vehicle, did not constitute, inherent manufacturing defects. They further submitted that, as such, the Opposite Parties were neither deficient, in rendering service, nor indulged into unfair trade practice. They further submitted that the order of the District Forum, is legal and valid. They further submitted that even the order of the District Forum, had already been complied with, by the Opposite Parties, but the complainant was not ready to take delivery of the vehicle.
11. The first question, that arises for consideration, is, as to whether, the vehicle, in question, suffered from inherent manufacturing defects or not. It may be stated here, that to establish the claim, for the replacement of vehicle, or refund of the price thereof, the complainant was required to prove through cogent, convincing and adequate evidence, supported by the opinion of an automobile expert/mechanical engineer, that the vehicle suffered from inherent manufacturing defects. In our opinion, the report of the automobile expert/mechanical engineer, in such cases, was eminently essential, so as to enable the Consumer Fora, to come to the conclusion, as to what were the defects, persisting in the vehicle, within the short span of the purchase of the same, and, whether those defects were actually inherent manufacturing defects, or only minor defects, and could be easily rectified. In Jose Philip Mampilli Vs. Premier Automobiles Ltd., & another 2004 (1) CPC 438 (S.C.) and Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr. (JT 2006 (4) SC 113), the principle of law, laid down, was to the effect, that the manufacturer could not be ordered to replace the car or refund its price, merely because some defects appear, which could be rectified or defective parts could be replaced, under warranty. Similar principle of law, was laid down in Chandeshwar Kumar Vs. Tata Engineering Loco Motive Co. Ltd. & Anr., I (2007) CPJ 2 (NC), M/s E.I.D. Parry (India Ltd.) Vs. Baby Benjamin Thushara, I (1992) CPJ 279 (NC), a case decided by a Four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi and Sushila Automobiles Pvt. Ltd., Vs. Dr. Birendra Narain Prasad & Ors. III (2010) CPJ 130 (NC)
12. Keeping in view, the principle of law, laid down, in the aforesaid cases, now let us see, as to whether, in the instant case, the complainant was successful, in proving that the vehicle, in question, suffered from inherent manufacturing defects or not. Admittedly, no report of the automobile expert/mechanical engineer, was produced, on record, by the complainant, to prove that the vehicle was found to be suffering from inherent manufacturing defects. As stated above, for the first time, after the purchase of the vehicle, the complainant took the same, to the Service Centre of Opposite Party No.1, on 11.07.2011 i.e. within less than one month of the purchase of the same, for first free service, as is evident from job card Annexure C-5. The complaint made by the complainant, at that time was Rusting in or out on Bonnet. At that time, free service was done, and he was asked to bring the vehicle on 21.07.2011, for rectifying the defect of rusting. It is further evident, from job card Annexure C-6, that again the vehicle was taken by the complainant, to the Service Centre of Opposite Party No.1, on 21.07.2011, on which date, the upper and inner side of the bonnet were painted, rear RHS bumper was adjusted, and under body noise on rough place was noted. It is further evident, from job card Annexure C-7 dated 08.09.2011, that the vehicle was again taken to the Service Centre of Opposite Party No.1, when the complaint was made, with regard to rusting on all body, chassis and engine. There is an endorsement of one Sudhir, Technician/Service Engineer, of Swami Automobiles Pvt. Ltd. (Opposite Party No.1), with regard to Rusting on whole body. Under this endorsement date 08.09.2011, was mentioned. It is further evident, from letter Annexure C-9 dated 11.10.2011, that inspection of the vehicle was done on 28.09.2011, by M & M experts (Opposite Party No.2), at the Service Centre of Opposite Party No.1. It was decided to do the work, as per the warranty Policy. It was, however, stated in the letter dated 11.10.2011, aforesaid, written to the complainant, by Opposite Party No.1, that although the concern could be resolved by repainting the vehicle, yet, still the Company had taken customer centric approach and agreed to replace the body shell, and do the antirust treatment, under chassis. These defects, by no stretch of imagination, could be said to be inherent manufacturing defects. These were only the minor defects. The complainant, thus, failed to prove that the vehicle suffered from inherent manufacturing defects. The District Forum, no doubt, directed the Opposite Parties, to replace the body shell of the vehicle, as also carry out antirust treatment, under chassis. Under these circumstances, the relief claimed by the complainant, regarding the replacement of vehicle or refund of the price thereof, could not be granted to him.
13. The second question, that falls for consideration, is, as to whether, the directions could be given to the Opposite Parties, for rectification of the aforesaid minor defects, existing in the vehicle, as pointed out, by the complainant, as also by the Service Engineer/Technician, as is evident from the Job cards, referred to above, replacement of the defective parts, free of cost, and extension of warranty or not, even if no such relief was claimed by the complainant. In Jose Philip Mampilli`s and Maruti Udyog Ltd.`s cases (supra), the Hon`ble Supreme Court held that where the defects, in various parts of the car, are established, replacement of the entire car or refund of price, was not called for, but direction could be given, for rectification of the defects and replacement of defective parts. Since the defects, referred to above, occurred in the vehicle, during the period of warranty, and were even persisting, till the date of filing of the complaint, as per the version of the complainant, keeping in view the principle of law, laid down, in the cases, referred to, in this paragraph, such directions could certainly be given to the Opposite Parties.
14. The third question, that falls, for consideration, is, as to whether, the District Forum, gave proper directions for rectification of the defects or not. The District Forum, only directed that the body shell of the vehicle be replaced, and antirust treatment under chassis be carried out.
Since, from the job card Annexure C-7, it was established, that even the engine of the vehicle was rusted, it was required of the District Forum, to also issue direction to the Opposite Parties, to give antirust treatment to the engine, so as to make it defect free, and if the same was not possible, then replace the entire engine. However, the District Forum did not give any direction, with regard to the rectification of this defect. The District Forum thus erred in not giving such a direction. The directions given by the District Forum, thus, deserve to be modified.
15. The fourth question, that falls for consideration, is, as to whether, the complainant was entitled to compensation, for mental agony and physical harassment, caused to him, at the hands of the Opposite Parties, as he was compelled to take the vehicle, to the Service Centre of Opposite Party No.1, from time to time, within the short span of purchase thereof. The vehicle, as stated above, has been lying in the Service Centre of Opposite Party No.1 since 28.09.2011. The complainant, after purchasing the vehicle, could not enjoy the ride therein, even for a few months. One can visualize the plight of a person, who purchased the vehicle, with a view to use the same, for his comfort, but, on account of certain defects therein, was unable to use the same. The mere fact that the vehicle had to be taken to the Service Centre of Opposite Party No.1, again and again, within the short span of purchase of the same, for the rectification of defects referred to above, could be said to be sufficient, to prove the mental agony and physical harassment, caused to the complainant. Since for the last one year, the vehicle has been lying in the Service Centre of Opposite Party No.1, with the defects aforesaid, the complainant was deprived of use thereof. Under these circumstances, the complainant, in our considered opinion, was required to be compensated for such mental agony and physical harassment. If compensation, in the sum of Rs.40,000/- is granted, that would be just, fair and reasonable.
16. No other point, was urged, by the Counsel for the parties.
17. For the reasons, recorded above, the appeal is partly accepted, with costs, against the respondents/Opposite Parties, in the following manner:-
i. The respondents/Opposite Parties, are directed to give antirust treatment to the engine, which is rusted and make it defect free, without charging anything from the complainant, within a period of 15 days, from the date of receipt of a certified copy of this order, under the supervision of a penal of automobile experts.
ii. In case, rusting of the engine, is found to be incapable of being treated, with antirust treatment to make it defect free, then the respondents/Opposite Parties, shall within a further period of 20 days, replace the same (engine) with a new one, under the panel of automobile experts, free-of-cost, as the said defect occurred during the warranty period, and handover the vehicle to the complainant, in roadworthy condition.
iii. The respondents/Opposite Parties shall also replace other parts of the vehicle, if any, which became defective, from 28.09.2011 onwards, free-of-cost, under the supervision of panel of automobile experts, as the vehicle has been lying in the Workshop of respondent no.1, since then.
iv. The concerned experts, shall submit their detailed affidavits, immediately, thereafter, to this Commission, duly signed by them, that the defects had been rectified/defective parts replaced, with new one free-of-cost and the vehicle had been made roadworthy.
v. The respondents/Opposite Parties shall also give extended warranty of two years, containing the same terms and conditions, as are mentioned in the original warranty, commencing from the date of handing over the vehicle, to the complainant, in roadworthy condition.
vi. The respondents/Opposite Parties, shall also pay compensation, to the tune of Rs.40,000/-, to the complainant, for causing him mental agony and physical harassment.
vii. The respondents/Opposite Parties, shall also pay cost of litigation, to the tune of Rs.10,000/-, to the complainant.
viii. The other reliefs granted, and directions given by the District Forum, shall remain intact.
18. The amount of Rs.40,000/-, awarded as compensation, shall be paid by the respondents/Opposite Parties, jointly and severally, to the complainant, within a period of 35 days, from the date of receipt of a certified copy of this order, failing which, they shall be liable to pay the same, alongwith interest @9% P.A., from the date of passing the instant order, till realization, besides payment of litigation costs.
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.
October 1, 2012 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg