State Consumer Disputes Redressal Commission
Sukhwinder Singh vs Globe Toyota And Others on 30 May, 2023
APPEAL NO.1303 OF 2018 30.05.2023
SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
HARYANA, PANCHKULA
Date of Institution: 30.11.2018
Date of final hearing: 30.05.2023
Date of Pronouncement: 30.05.2023
APPEAL NO.1303 OF 2018
IN THE MATTER OF
Sukhwinder Singh son of Shri Ranjit Singh, resident of House No.431,
New Prem Nagar, Karnal.
....Appellant/Complainant
Versus
1. Globe Toyota, Madhuban G.T. Road (NH-1), Karnal through its
Proprietor.
2. Grace Toyota Cosmic Motors India Pvt. Ltd. House No.511, Near
Sector 3, South City, Bypass Road, Rewari.
3. Toyota Kirloskar Motor (TKM), Head Office: 10th Floor, Canberra
Tower, UB City No.24, Vittal Mallya Road, Bangalore, Karnataka-
560001.
....Respondents/Opposite Parties
CORAM: HON'BLE MR. JUSTICE T.P.S. MANN, PRESIDENT
MS. MANJULA, MEMBER
Present: Shri Vivek Aggarwal, counsel for the appellant.
Shri Shivam Grover with Shri Ashutosh Aggarwal, counsel for
respondent No.1.
Presence of respondent No.2 already dispensed with.
Shri S.R. Bansal, counsel for respondent No.3.
PER: T.P.S. MANN, J.
ORDER
1. The instant appeal has been preferred by complainant Sukhwinder Singh against the order dated 23.10.2018 passed by the District Consumer Disputes Redressal Forum, Karnal, whereby the Page 1 of 15 APPEAL NO.1303 OF 2018 30.05.2023 SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
complaint filed by him was disposed of by granting liberty to the parties to approach the Court/Civil Court of competent jurisdiction, if so desired and in that eventuality, the parties would be entitled to the benefit of Section 14(2) of Limitation Act and the time taken during the pendency of the complaint would be exempted.
2. The brief facts, as pleaded by the complainant are that he had purchased a Toyota Etios Liva GD (M) car bearing registration No.HR-54C-0013 from Grace Toyota Cosmic Motors India Pvt. Ltd.- opposite party No.2 for a sum of Rs.5,99,800/- on 18.10.2014. At the time of purchase, the opposite parties gave a warranty that if any problem occurred in the vehicle at any stage they would change the vehicle with new one. Soon after the purchase, it started creating problems. The complainant approached opposite party No.1 about the defects in the vehicle a number of times on different occasions. The complainant firstly noticed that there was a noise emanating from all the doors while opening and closing; air conditioner (AC) stopped working in the month of March, 2015; paint peel-off from both upper corners of rear compartment (dickey) of the vehicle in the month of December, 2014; paint peel-off from weather strips of all the doors of vehicle in the month of January, 2015; hood heat insulator fitted on inner side of bonnet bursted very badly in the month of March, 2015; rear bumper colour getting yellow; and irritating sound emanating from air conditioner vent in the month of April, 2015; all door glasses of vehicle create unhappy sound when glasses were slightly down; a noise of khad-khad started from all Page 2 of 15 APPEAL NO.1303 OF 2018 30.05.2023 SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
doors after the replacement of weather strips on 16.10.2015; vibration and more engine sound in car cabin after October, 2015; low mileage of vehicle noticed in June, 2015; wiper of vehicle was not working properly; fresh air duct was not working well for a long time; horn pad became tight and sound of horn was not normal; and more gap in rear compartment (dickey) from right hand side and problem of vehicle starting from July, 2016. After inspection of the vehicle, opposite party No.1 told the complainant that it would discuss about the said defects with opposite party No.3 i.e. Toyota Kirloskar Motors (manufacturer) and would inform him thereafter. In the month of July-August, 2015, opposite party No.1 painted both the upper corners of rear compartment (dickey) but in the month of December, 2015, the paint peeled-off again from the upper corner of rear compartment (dickey). On the complaint of paint peel-off from weather strips of all the doors of the vehicle made by the complainant in the month of January, 2015, the officials, namely, Himanshu Kapoor, Gurmukh Singh and Seema checked the vehicle thoroughly 3-4 times. Opposite party No.1 told him that it would be rectified but till date the defects could not be rectified. The complaints regarding rectification of problem in the air conditioner were made by him in the month of March, 2015 and on several dates 04.04.2015, 14.04.2015, 21.04.2015, 23.05.2015, 08.06.2015 to 11.06.2015, 04.06.2016, 09.06.2016 and 10.06.2016. The mechanic of opposite party No.1 and manufacturer recovered and refilled the air conditioner gas and compressor oil many times but there was always Page 3 of 15 APPEAL NO.1303 OF 2018 30.05.2023 SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
found less gas and less compressor oil at the time of recovery. On 12.10.2015, opposite party No.1 had replaced weather strips of all the doors of the vehicle but the problem still persisted. In the month of April, 2015, he noticed that colour of rear bumper was getting yellow and, thereafter, he approached opposite party No.1 but the problem could not be fixed. The complainant noticed vibration and big noise in the engine cabin after first service on 08.10.2015. On 10.06.2015, mechanic of manufacturer worked on vibration but the issue still persisted. On 31.03.2016, he went to opposite party No.1 to check fresh air switch as it became free and noticed that there should be a jalli in front of fresh air hole. However, opposite party No.1 refused to do the work of same without charge. For this, the complainant had to pay Rs.1,880/- to the manufacturer for manufacturing defect. The windshield became blurring while using the wiper on it on rainy days. The complainant also noticed that the car was giving low mileage of 15 km. per litre whereas the manufacturer was claiming 23.59 km. per litre. The horn pad became tight and its colour faded. The sound of horn was also not normal. Opposite party No.1 told him that it would replace the horn pad with new one but did not do so. The complainant contacted many times customer care of manufacturer for redressal of his grievance. Even the opposite parties had admitted their fault and negligence in some audio recording available with the complainant. After noticing so many defects in the vehicle mentioned above, the complainant made several complaints through registered post as well as by way of e- Page 4 of 15
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mails but no satisfactory reply or solutions received to the complainant. As such, there was deficiency in service on the part of the opposite parties. Hence, the complaint with a prayer that the opposite parties be directed to replace the vehicle in question with new one and also to pay Rs.2,00,000/- as compensation for mental pain, agony and harassment besides Rs.11,000/- as litigation expenses to the complainant.
3. Upon notice, opposite party No.1 appeared and filed its written version stating therein that the complaint could not be tried summarily as it involved a lot of technical issues and the same was liable to be dismissed. Neither the vehicle was purchased from the dealership of opposite party No.1 nor it was the manufacturer. If there was any manufacturing defect in the subject vehicle then dealer was not liable to replace the vehicle. The vehicle in question was properly attended and inspected by the service team of opposite parties as and when the complainant raised any concern and on no occasion it was found that there was manufacturing defect in the vehicle. The problem, if any, occurred due to normal wear and tear or usage of the vehicle in question and the same was properly rectified/resolved by it from time to time as per terms and conditions of the owner's manual/warranty. The complainant raised the concern first time on 04.05.2016 when the vehicle in question had already run 14719 kilometers. The complainant was already informed on 24.12.2015 that the weather strips of the vehicle in question needed to be replaced as they were deformed and the appointment was fixed Page 5 of 15 APPEAL NO.1303 OF 2018 30.05.2023 SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
with him for 25.12.2015 for getting the weather strips replaced but the complainant did not get the same replaced under warranty. The road test of the vehicle in question was taken along with the complainant when the complainant raised the concern that air conditioner cooling was low though the air conditioner was working properly. The vehicles passed through strict quality tests as well as after due certifications by the quality department of the manufacturing company and then the vehicles roll out from the manufacturing facility for onward sale to the customer. The complainant after satisfying himself with the work done paid the amount of invoice towards 40000 Km. service work and took his vehicle back after signing the satisfaction note. The affidavit of the technical expert of the opposite parties had neither been rebutted by the complainant nor the complainant adduced any expert evidence to prove that the vehicle was having any manufacturing defect. There was no deficiency in service on the part of opposite party No.1. Other allegations were denied and prayer made for dismissal of the complaint.
4. Opposite party No.2 did not appear and was proceeded against ex parte by the District Forum on 15.05.2017.
5. Opposite party No.3 also appeared and filed its written version stating therein that the vehicle was out of warranty as clearly mentioned by opposite party No.1, hence, no question of relief was required. There was no manufacturing defect in the vehicle in Page 6 of 15 APPEAL NO.1303 OF 2018 30.05.2023 SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
question. Other allegations were denied and prayer was accordingly made for dismissal of the complaint.
6. The parties to the lis led their respective evidence to support their pleas.
7. After hearing counsel for the parties and on going through the record, the District Consumer Forum disposed of the complaint with liberty to the parties to approach the Court/Civil Court of competent jurisdiction.
8. The State Commission has heard counsel for the parties and perused the written arguments submitted by counsel for the appellant as well as counsel for respondent No.1 and also perused the record, which stands requisitioned.
9. The main dispute which requires to be adjudicated before this Commission is that whether the vehicle in question was having any manufacturing defect or not. There is no dispute regarding the fact that the complainant purchased Toyota Etios Liva GD (M) Car bearing registration No.HR-54C-0013 from Grace Toyota Cosmic Motors India Pvt. Ltd.-opposite party No.2 (authorized dealer of Toyota Kirloskar Motors) for a sum of Rs.5,99,800/- on 18.10.2014. It is also not in dispute that the subject vehicle had been brought by the complainant to the workshop of opposite party No.1 from time to time within few months of its purchase. The complainant had pleaded that he had a bad experience with the product supplied by the opposite parties, which was of sub-standard quality having defective parts which required replacement and repair within a few months of its Page 7 of 15 APPEAL NO.1303 OF 2018 30.05.2023 SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
purchase from time to time. The defects noticed by the complainant in the vehicle could not be rectified by the opposite parties despite his repeated visits. It is the duty of the dealer as well as manufacturer to attend the problems of consumer and if they were unable to attend the defects, it would amount to "deficiency in service". Furthermore, opposite party No.2 i.e. dealer, from where, the complainant had purchased the vehicle in question but did not appear before the District Forum and was proceeded against ex parte on 15.05.2017. The complainant had alleged that after noticing several defects in the vehicle in question, he approached the opposite parties a number of times to remove the same but the opposite parties did not rectify the same. To prove the defects in the vehicle in question, the complainant had placed on record the invoices, which show that after purchase of the vehicle, he visited opposite party No.1 to remove the defects on different dates i.e. 04.04.2015 (Exhibit C8 & Exhibit C37), 14.04.2015 (Exhibit C9), 21.04.2015 (Exhibit C10), 23.05.2015 (Exhibit C11), 11.06.2015 (Exhibit C12), 08.10.2015 (Exhibit C23, Exhibit C32, Exhibit C34 & Exhibit C36),16.10.2015 (Exhibit C5, Exhibit C17& Exhibit C35), 27.10.2015 (Exhibit C19), 12.12.2015 (Exhibit C20), 04.06.2016 (Exhibit C6, Exhibit C13, Exhibit C29, Exhibit C30, Exhibit C48), 09.06.2016 (Exhibit C14 & Exhibit C49), 10.06.2016 (Exhibit C4, Exhibit C7, Exhibit C15, Exhibit C24, Exhibit C25, Exhibit C31, Exhibit C33 & Exhibit C52), 03.08.2016 (Exhibit C26 & Exhibit C50), 05.08.2016 (Exhibit C27 & Exhibit C51). The complainant had also written a letter (Exhibit C38) to Sh. Himanshu Page 8 of 15 APPEAL NO.1303 OF 2018 30.05.2023 SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
and Sh. Gurmukh Singh, officials of opposite party No.1 on 06.03.2016 wherein he complained about the defects in the vehicle and requested for rectifying the same and asked reply to the said letter. The complainant thereafter sent a reminder dated 11.04.2016 (Exhibit C41) asking the officials of opposite party No.1 to rectify the defects noticed in the vehicle. Further, the complainant had also sent e-mails conversation (Exhibit C53 to Exhibit C86) between the complainant and manufacturer wherein the complainant was regularly complaining about the defects noticed in the vehicle but there was no reply on behalf of the manufacturer. The documents mentioned above show that soon after the purchase, the complainant had been repeatedly visiting the opposite parties to remove the defects noticed mentioned above in the vehicle but the opposite parties could not rectify the same. The invoice dated 04.04.2015, the date when the complainant visited the opposite parties first time with the complaint that air conditioner of the vehicle giving less cooling and the same was thereafter resolved. In the invoice dated 04.06.2016 (Exhibit C13), it was reported that the cooling of air conditioner was not upto the mark. Except these, there are certain documents on record, which show that the complainant repeatedly visited the service centre of the opposite parties to rectify the defects as mentioned above. The Hon'ble Apex Court in Indochem Electronic vs. Addl. Collector of Customs; (2006) 3 SCC 721 has held that when the deficiencies in the system continued to persist during the warranty period, including the extended period, the suppliers were Page 9 of 15 APPEAL NO.1303 OF 2018 30.05.2023 SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
rightly held to be liable for deficiency in service by the State and National Consumer Commission. It was also held that in the light of the specific power conferred under Section 14(1)(c) of the Consumer Protection Act, 1986, damages equivalent to price of goods could be awarded.
10. It is misconceived notion that unless and until goods or the vehicle suffer from any manufacturing defect, though the onus is always upon the manufacturer to prove that it does not suffer from any manufacturing defect, the goods or the vehicle cannot be declared as defective. The quality, standard, purity and potency of every good has to be tested on the anvil of word "defect" as provided by Section 2(1)(g) of the Act. According to this provision any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained 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, amounts to defect.
11. The inference of vehicle being defective can be drawn from various job cards. Whenever a consumer goes for a brand new vehicle instead of purchasing a second and third hand vehicle he does so to avoid any hardship or inconvenience that a second hand or third hand vehicle gives and the minimum expectation of the consumer who goes for the brand new vehicle is that it will not give trouble for two-three years or so and if he is taking the vehicle every two or three days or once or twice a month he does so at the cost of his Page 10 of 15 APPEAL NO.1303 OF 2018 30.05.2023 SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
precious time or business, loss or financial loss, etc. and at the cost of emotional sufferings also.
12. In the instant case, the complainant noticed several defects in the vehicle in question and in spite of repairing it or replacing the defective parts on three-four occasions, the defect could not be removed and the complainant was forced to file the complaint before the District Forum seeking redressal of his grievances. The vehicle was purchased on 18.10.2014 and was taken for repairs for the first time on 04.04.2015 when its air conditioner stopped throwing cool air and since then the complainant had been repeatedly taking the vehicle in question for repairs to the opposite parties. It is a fact that any person who buys a vehicle does so with an object that the same will provide comfort and peace of mind at least for some period, however, if such a vehicle starts giving trouble after few months of its purchase and the consumer is made to visit workshop time and again then it is definitely in area of concern as it is clear case of mental agony, pain, emotional trauma and harassment.
13. In this case the very fact that the vehicle in question was taken on large number of occasions for repairs and rectification of several defects and that they were accordingly rectified and removed time and again and that the consumer was compelled to take the vehicle frequently to the workshop clearly shows that the vehicle in question was a defective vehicle within the meaning of Section 2(1)(f) of the Act especially when some of the parts admittedly have been replaced and is still stated to be giving problems. Further, the Page 11 of 15 APPEAL NO.1303 OF 2018 30.05.2023 SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
replacement of so many parts stated to be defective within two years of the purchase of the vehicle and continuous problem of vibration and noise in the engine cabin as well as continuous peeling off the paint from various parts of the vehicle show a great sign of abnormality in the product.
14. Hon'ble National Consumer Commission in M/s. Hyundai Motors India Ltd. Vs. Affiliated East West Press (P) Ltd., Revision Petition No.958 of 2007 decided on 29th November, 2007 has held that where car had gone to the workshop on several occasions for repairs within a short period of one year of its purchase for one defect or other or for similar problem and the car all throughout was emitting smoke which defect could not be rectified by the manufacturer of the dealer had held that with such a vehicle the consumer would not be satisfied. May be that such defect may occur in one out of thousand vehicles, but, at the same time, it is the duty of the reputed/established manufacturer to replace such a vehicle. The Hon'ble National Consumer Commission in this case also turned down the contention of the petitioner for appropriate reduction in the amount payable, as the car had been used for more than one year and said that these submission cannot be accepted because the complainant has also invested money for purchase of the said car and on the same amount he has also lost interest and further said that the petitioner could not rectify the defect. Hence, there is no question of deducting any amount and ordered for refund of the entire amount.
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15. Similarly, Hon'ble National Consumer Commission in another Revision Petition No.9 of 2006 decided on 17.09.2007 titled as M/s Control and Switch Gear Co. Limited Vs. M/s. Daimler Chrysler India Pvt. Ltd. and Ors., in which issue of replacement of Mercedes-Benz car or refund of its full price was involved had held that the consumer/purchaser of new Mercedes-Benz car would not be satisfied with the said car, which required repeated repairs, and the consumer is entitled to get replacement or refund of the purchase price of the car. Hon'ble National Consumer Commission further held that in this case as the car had developed defects soon after its purchase and the same could not be rectified even after replacement of many parts even after its use for more than two and half years and held that we can say without hesitation if the car is defective, may be on one or other count but that would not give any satisfaction to the purchaser of such a high end car as Mercedes-Benz car and has spent large amount for its purchase, non replacement of the vehicle in these facts and circumstances would tantamount to unfair trade practice and ordered for replacement of the car with the same model, or, in the alternative refund of its full price.
16. In view of the above, the State Commission is of the considered view that the opposite parties had been deficient in providing services to the complainant as well as guilty of selling defective car to the complainant and also liable for adopting unfair trade practices.
17. Now there are two options available with the State Commission. First is to direct the opposite parties to replace the vehicle with a new Page 13 of 15 APPEAL NO.1303 OF 2018 30.05.2023 SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
vehicle and the second option is to return the complainant the price of the vehicle along with amount of compensation as to the loss and injury suffered by the consumer.
18. In such cases, the State Commission is of the view that the endeavour should be to end the dispute of the parties once for all by making order of refund of the cost of the vehicle which is held to be defective or by awarding reasonable compensation for the mental agony, physical discomfort and other sufferings by the consumer. Therefore, the order for repairing some defects or replacing the vehicle or issuing warranty is such an order which is difficult to be executed and monitored as the possibility of the new vehicle being not upto the satisfaction or the removal of defects being not upto the satisfaction of the consumer cannot be ruled out and such orders have given rise to third and four bouts of litigation between the parties.
19. In view of the above, the District Forum fell in error in dismissing the complaint. Hence, the appeal is accepted, impugned order is set aside and the complaint is allowed. The opposite parties are directed to replace the vehicle in question with new one or to refund the cost of the vehicle to the complainant jointly and severally. The opposite parties are further directed to pay compensation of Rs.1,00,000/- on account of harassment and also to pay Rs.33,000/- as litigation expenses to the complainant. The order shall be complied by the opposite parties within a period of 45 days from the date of receipt of copy of this order. In case, the opposite parties fail to comply with the Page 14 of 15 APPEAL NO.1303 OF 2018 30.05.2023 SUKHWINDER SINGH VS. GLOBE TOYOTA & ORS.
order as mentioned above within stipulated period then the complainant shall have the right to file for the execution of the order before the District Consumer Forum.
20. Application(s) pending, if any, stand disposed of in terms of the aforesaid order.
21. A copy of this order be provided to all the parties free of cost as mandated by the Act. The order be uploaded forthwith on the website of the Commission for the perusal of the parties.
22. File be consigned to record room along with a copy of this order.
(T.P.S. MANN) PRESIDENT (MANJULA) MEMBER Pronounced On 30.05.2023.
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