State Consumer Disputes Redressal Commission
Mr. Sinder Pal vs 1. M/S Joshi Auto Zone Pvt. Ltd on 3 September, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 14 of 2012 Date of Institution : 05.03.2012 Date of Decision : 03.09.2012 Mr. Sinder Pal, C/o Super Market, Near Bus Stand, Sunam, District Sangrur, Punjab complainant V e r s u s 1. M/s Joshi Auto Zone Pvt. Ltd., Plot No.84-85, Industrial Area, Phase II, Chandigarh, through its Proprietor/Partner. 2. M/s Mercedes Benz India Pvt. Ltd., E-3, MIDC Chakan Phase III, Chakan Industrial Area, Kuruli and Nighoje The Ked Pune, through its Director/Managing Director .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER
Argued by: Sh. Mukesh Sharma, Advocate Proxy for Sh. Parveen Kataria, Advocate for the complainant.
Sh. Rajesh Verma, Advocate for Opposite Party No.1.
Sh. S.S. Bawa, Advocate for Opposite Party No.2.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
1. The facts, in brief, are that the complainant, on 18.01.2011, purchased SUV- Model GL350CDIEX (hereinafter to be referred as vehicle), vide tax invoice No.CHD-0305, Annexure C-1, for Rs.66,00,000/-, from Opposite Party No.1, which is the authorized dealer of Opposite Party No.2. It was stated that the complainant could not enjoy journey in the vehicle, from the very beginning, inspite of spending heavy amount, as the same gave problem, because of its peculiar noise, while it rolled. The complainant approached Opposite Party No.1, an authorized dealer, on 05.03.2011, for rectification of the problem. After physical verification and checkup of the said vehicle, a mechanic of the Service Centre, replaced the front left strut for air suspension (airmatic), but the aforesaid problem could not be resolved. Thereafter, the complainant again approached the Service Centre of Opposite Party No.1, on 19.07.2011 and 10.10.2011, with the same problem, when on each occasion, right strut for air suspension (airmatic) was replaced, but the problem still continued. It was stated that on 16.11.2011, the complainant again approached the Service Centre, where, he was again advised for replacement of front strut for air suspension. It was further stated that, due to the above said problem, in the vehicle, the complainant suffered a huge financial loss. It was further stated that the aforesaid defect, constituted inherent manufacturing defect, in the vehicle. It was further stated that, on all the four occasions, the tyres of the vehicle, were replaced, due to the faulty suspension system. It was further stated that, all the times, the complainant had to bear the expenses of tyres of the said vehicle. It was further stated that when the inherent manufacturing defect, in the vehicle, could not be rectified, by the Opposite Parties, a legal notice dated 31.12.2011, was served upon them, but without any result. It was further stated that, on account of non -serious attitude of the Opposite Parties, the complainant suffered a lot of mental agony and physical harassment. 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 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for directions to the Opposite Parties, to replace the vehicle, or refund the price thereof, alongwith interest @18% P.A., from the date of its purchase, till realization; pay compensation, to the tune of Rs.50,000/-, on account of mental agony, financial hardship and inconvenience, caused to the complainant; and pay Rs.21,000/-, as litigation costs.
2. Opposite Party No.1, in its written version, pleaded that the complainant did not fall within the definition of a consumer. It was further pleaded that the complaint was not maintainable. It was stated that since, the complaint involved complicated questions of fact and law, and evidence is required to be recorded, the same could not be decided by this Commission, proceedings before which, are summary in nature. It was admitted that the complainant purchased the vehicle, in question, vide tax invoice dated 18.01.2011, Annexure C-1. It was further stated that, as per the standard warranty terms and conditions, Annexure D (at page 73A of the District Forum file), as and when, the vehicle was brought by the complainant, to the Service Centre, the complaints, made by him, were duly attended to. It was further stated that the problem, which was pointed out, by the complainant, related to front strut air suspension, which was duly rectified, by making the requisite replacements. It was further stated that the problem, in the vehicle, was on account of normal wear and tear. It was further stated that the pre-service record, clearly showed that all the concerns/problems, were efficiently and effectively, attended to. It was further stated that on 04.03.2011 (infact 05.03.2012), when the vehicle had already covered 5330 kms, it was brought to the Service Centre, with the complaint of thumping noise from left hand side (LHS), and on this occasion, the noise was checked. The vehicle was attended to, under the terms and conditions of warranty, most efficiently and effectively, to the satisfaction of the complainant. Front strut air suspension, known as shocker, and cable strap 040, were replaced, under the said warranty terms and conditions, whereafter road wheel test was performed. After the jobs were carried out, the vehicle was delivered to the complainant, in a good condition. It was further stated that, on 19.07.2011, front right strut for air suspension, was again replaced. Similarly, on 10.11.2011, when the vehicle had covered 30239 kms (infact 26155), service cum wheel alignment and balancing were to be done. On this occasion all the jobs, including replacement of air suspension and cable strap 040, were performed. However, the wheel balancing was refused, by the complainant. On 16.11.2011, when the vehicle had already covered 31751 kms, it was brought to the Service Centre. The demanded job was that the sound was coming from right hand side shocker. Suspension system was checked, and it was advised for replacement, under warranty terms and conditions, but the complainant again refused to do so. It was further stated that there was no inherent manufacturing defect, in the vehicle, nor any expert evidence was produced, by the complainant, to prove the same, and, as such, the reliefs claimed for, by him, could not be granted to him. 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.
3. Opposite Party No.2, in its written version, admitted that Opposite Party No.1, was its authorized dealer, as also authorized Service Centre, at Chandigarh. It was further admitted that the vehicle was purchased by the complainant, from its authorized dealer i.e. Opposite Party No.1, on 18.01.2011. It was stated that the cars, manufactured by Opposite Party No.2, in India, are world class cars, with a reputation for safety, comfort, quality and engineering precision. It was further stated that all legitimate concerns of the complainant were duly addressed, by the Opposite Parties, free-of-charge, under the terms and conditions of warranty. It was further stated that the complainant had used his car extensively, as is evident from the odometer reading mentioned below:-
S.No. Date Odometer reading
1. 19.07.2011 15892
2. 02.10.2011 27748
3. 10.11.2011 30739
4. 10.03.2012 43105
5. 04.04.2012 46712
4. It was further stated that on an average, Mercedes-Benz owner, uses the vehicle, for about 10000 to 12000 kms per year, whereas the usage of the car of the complainant was almost 4 times, the normal usage. It was further stated that, on the aforesaid five occasions, when the vehicle was brought to the Service Centre of Opposite Party No.1, the minor defects, which were pointed out therein, were rectified. It was further stated that the complainant purchased the vehicle, in question, after thorough inspection, road trial etc., subject to the terms and conditions of the warranty. It was further stated that the vehicle, did not suffer from any inherent manufacturing defect. 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. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
7. The Counsel for the complainant, submitted that the mere fact, that the vehicle was taken to the Service Centre of Opposite Party No.1, on as many as 05 occasions within a short span of about 1 year, out of which, on three or four occasions, air suspension was replaced, in itself, was sufficient to prove that it suffered from inherent manufacturing defect. 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/Workshop, for attending to the aforesaid problems. He further submitted that the complainant purchased the vehicle, in question, by paying a huge price, but could not enjoy the ride therein, due to the aforesaid defects. He further submitted that the facts aforesaid, speak for themselves, with regard to the inherent manufacturing defects, in the vehicle, and, under these circumstances, production of expert evidence, did not disprove the case of the complainant. He further submitted that, as such, the Opposite Parties, were deficient, in rendering service, as also indulged into unfair trade practice.
8. On the other hand, the Counsel for the Opposite Parties, submitted that, whatever, the defects were pointed out by the complainant, when the vehicle, in question, was brought to the Service Centre of Opposite Party No.1, the same were duly attended to, and rectified. They further submitted that replacement of suspension, on three to four occasions, as per the warranty terms and conditions, did not mean that the vehicle, in question, was suffering from inherent manufacturing defect. They further submitted that the vehicle, had been extensively used by the complainant, i.e. four times more than the normal usage of the same. They further submitted that the defects, which were pointed out were, on account of normal wear and tear of the vehicle and its extensive use by the complainant. They further submitted that the complainant did not produce any expert evidence, to prove that the vehicle, in question, was suffering from any inherent manufacturing defects. They further submitted that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.
9. 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 the 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, is eminently essential, so as to enable this Commission, 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, which were the result of normal wear and tear, improper maintenance of the vehicle or extensive use, therefore, 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)
10. Keeping in view the principle of law, laid down, in the aforesaid cases, now let us see, 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 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. Annexure R-1 is the invoice summary/job card dated 05.03.2011, when the vehicle had covered 5330 kms. The service of the vehicle was done, air suspension strut and cable strap 040 were replaced and no amount was charged from the complainant, as it was during the warranty period. Annexure R-2 is the other invoice summary dated 19.07.2011, when the vehicle was taken to the Service Centre by the complainant, when it had covered 15892 kms, service was done, air suspension strut and cable strap 040 were replaced and no amount was charged from the complainant. It is evident, from Annexure A dated 10.11.2011, when the vehicle had covered 30745 kms, that the complaint made by the complainant was LHS pulling. The wheel alignment was done. Alongwith this document, service check sheet is attached, wherefrom, it is evident, that every part of the vehicle was checked, and the same was found to be O.k. Opposite Party No.2, in its written version, while relying upon Annexures R-1, R-2, R-3 and R-4- job cards, admitted that, on three occasions, front strut air suspension, which is known as shocker, was replaced, as per the terms and conditions of the warranty, and the job was performed to the satisfaction of the complainant. The problem in the shocker was due to normal wear and tear; extensive usage of the vehicle, which was four times, more than the normal usage; conditions of the roads, on which the same was driven; and may be bad driving. The defects aforesaid, being on account of the aforesaid reasons, could not, by any stretch of imagination, be said to be inherent manufacturing defects. In the absence of any expert evidence, having been produced by the complainant, as stated above, he miserably failed to prove that the vehicle, suffered from any inherent manufacturing defect, and, as such, it either required replacement, or he was entitled to the refund of the price of the same.
11. The next question ,that falls for consideration, is, as to whether, the directions can be given to the Opposite Parties, for rectification of the aforesaid minor defects, existing in the vehicle, as pointed out by the complainant, and replacement of defective parts, free of cost, and extension of warranty or not. 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 can certainly be given to the Opposite Parties.
12. The Counsel for the Opposite Parties submitted that the Opposite Parties were ready to give additional warranty for three years, for the aforesaid defects and for one year for the whole car. The Counsel for the complainant, however, was not ready to accept such an offer of the Counsel for the Opposite Parties. This clearly showed the bonafides of the Opposite Parties to address the concerns of the complainant. Mere non-acceptance of such an offer by the Counsel for the complainant cannot stand, in the way of the Commission, to pass an appropriate order, in this regard.
13. The next question, that falls, for consideration, is, as to whether, the complainant is entitled to compensation, on account of the alleged mental agony and physical harassment or not. The vehicle, in question, whenever was taken to the Service Centre of Opposite Party No.1, the defects pointed out by the complainant, were rectified by the engineers/technicians of the Opposite Parties, and even the shockers were also replaced free-of-cost, on three occasions. As stated above, the complainant has used the vehicle, so extensively, i.e. four times, more than the normal usage. The mere fact that the vehicle was taken to the Service Centre of Opposite Party No.1, on four to five occasions, during the warranty period, for the rectification of some defects, did not mean that it amounted to causing mental agony and physical harassment, to the complainant. Once this Commission has come to the conclusion, that directions can be given to the Opposite Parties, to rectify the defects, in the vehicle, and replace the defective parts, if any, free-of-cost, that will take care of everything. The complainant is, therefore, not entitled to any compensation, on account of the alleged mental agony and physical harassment.
14. No other point, was urged, by the Counsel for the parties.
15. For the reasons, recorded above, the complaint, is partly accepted, against the Opposite Parties, with no order as to costs, in the following manner:-
i. The complainant shall take the vehicle to the Service Centre of the Opposite Parties, within 30 days, from the date of receipt of a certified copy of this order.
ii. The Opposite Parties shall take over the vehicle, on production, repair the same and replace the defective parts thereof, under the supervision of their panel of experts, without charging anything, from the complainant, within 30 days, from the date the production of the same by him, and, thereafter, handover the same to him.
iii. The concerned experts shall submit their affidavits, immediately, thereafter, to this Commission, duly signed by them, that the defects had been rectified/defective parts replaced and the vehicle had been made roadworthy.
iv. The Opposite Parties shall also give extended warranty of two years, (which will commence after the expiry of original warranty of 24 months), containing the same terms and conditions, as are mentioned in the original warranty
16. Certified Copies of this order, be sent to the parties, free of charge.
17. The file be consigned to Record Room, after completion Pronounced.
September 3, 2012 Sd/-
[JUSTICE SHAM SUNDER(RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg