State Consumer Disputes Redressal Commission
Dnyanshwar Govekar vs V. Sunitha & Another on 19 July, 2016
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
C.C. No. 03/2016
Mr. Dnyaneshwar Govekar
s/o Late Prabhakar Govekar
Age. 50 years,
Married, Business,
Indian National,
R/o H. no: 3, Quenem,
Caranzalem, Tiswadi Goa. ... Complainant
v/s
1) Ms. V. Sunitha,
Customer Services Head,
Daimer Financial Service India Pvt. Ltd.,
Unit 202, 2nd Floor, Campus 3 B,
RMZ Millennia Business Park,
No. 143, Dr. MGR Road,
Perungudi, Chennai-600096.
2) Counto Automobile Pvt Ltd.,
Alcon, Showroom, survey No: 20/1,
NH-17, Porvorim Goa, 403501. ... Opposite Parties
Shri. A .C. Pansekar, Lr. Counsel for the Complainant.
Matter proceeded exparte against OP No. 1.
Shri. S. B. Karpe, Lr. Counsel for the OP No. 2.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 19/07/2016
JUDGMENT
[Per Justice Shri. U. V. Bakre, President] The Complainant has purchased Mercedes Benz car Model No. C-250 CDI, bearing registration No. GA-07/K-4518 in the month of July 2012 from the Opposite Party No. 2. (Opposite parties shall 2 hereinafter be referred to as OPs, for the sake of convenience). The possession of the car was delivered to the Complainant on 11/09/2012. According to the Complainant the said vehicle sometime in the month of April 2015 started giving problem of Air Conditioning which was not giving required cooling. The Complainant approached the OP No. 2 complaining about the said problem. The Complainant alleges that there is defect in the Air Conditioning (AC) of the car which he pointed out to the OP No. 2 for the first time on 8/5/2015. The OP No. 2 carried out leak test and topped up gas for the AC to the extent of 250 Msg. The Complainant says that the OP No. 2 assured him that the AC will function properly. It is the case of the Complainant that even after the repairs there was no change in the cooling of the AC. The Complainant again approached the OP No. 2 on 25/5/2015 and requested them to carry out necessary repairs in order to get the required cooling. The OP No. 2 carried out the repairs and replaced the compressor and updated the software of control unit air conditioning and front SAM. According to the Complainant even thereafter he found that the AC system was not working as required. The Complainant again approached the OP No. 2 for the third time on 23/07/2015. The Complainant says that the OP No. 2 carried out minor repairs, but he, however, found that the AC was not functioning properly and the OP No. 2 failed to repair the same. The Complainant therefore addressed a legal notice dated 11/9/2015 to the OP No. 1 through his Advocate Shri. A. C. Pansekar pointing out the details of defect in AC of the car and requested to take immediate action to replace the AC system or in the alternative to exchange the said car. According to the Complainant, the OP No. 1 is the Head of Customer services. The Complainant submits that the OP No. 1 received the said registered notice but neither replied to the same nor took any action. The Complainant has alleged that he has not been able to use the car and he suffered great mental agony and harassment. Hence he filed the Complaint praying therein to direct the OPs to replace the AC system 3 in his car or in the alternative to replace the said car. The Complainant further prayed for costs of the present proceedings.
2. The OPs were duly served with the notice of the Complaint along with the copy of the same. The OP No. 1 chose to remain absent and the case proceeded exparte against her. The OP No. 2 resisted the Complaint by filing written version. The case of OP No. 2 is as under:-
There is no cause of action to file any Complaint against OP No.
2. The OP No. 2 is not the manufacturer of the said car. The Complainant being impressed with the quality of the Mercedes Benz car approached the OP No. 2 for purchase of the same and accordingly purchased the same for Rs. 36,33,852/- from OP No. 2 who is dealer of Mercedes Benz car in Goa. After the purchase of the said vehicle the Complainant visited the service centre of the OP No. 2 on various occasions for servicing and was fully satisfied with the same and had no grievance as regards the cooling of AC in the said vehicle. It was somewhere in the month of May 2015 i.e. almost after 2 ½ from the date of purchase, the Complainant approached the service centre of OP No. 2 with the grievance that AC was not giving required cooling. The OP No. 2, through its technical expert, conducted thorough check-up of the vehicle and even carried out the leakage test and did not find any defect in the AC or its cooling effect.
Inspite of that OP No. 2 topped up gas for the AC to the extent of 250 Msg. Again on 25/5/2015, when the Complainant approached with the same grievance, the OP No. 2 evaluated the same but found that there was required cooling. But since the Complainant was insisting, the engineers of OP No. 2 explained to the Complainant the parameters of required cooling and that the cooling existing in his car was within the permissible standard requirement. However, considering the fact that the Complainant had purchased the car through the OP No. 2, as a matter of goodwill, the OP NO. 2 replaced the compressor of the said AC and software of control unit of the AC 4 and updated front SAM, free of cost. The refrigerant pressure was found within the permissible limit, inspite of which the said replacement of compressor was made. However, again on 23/7/2015 the Complainant approached the OP No. 2 with the same complaint and after conducting the required test the engineers of OP No. 2 found that there was sufficient cooling. The engineers of OP No. 2 even showed to the Complainant the cooling of another similar car with similar configuration which was available in the service station and the Complainant was made to know the level of cooling of the model purchased by the Complainant by showing the cooling of AC in other similar model. However, the Complainant insisted that the cooling is less. Thus, there was no deficiency in service or even there is no defect in the AC. The OP No. 2 did not receive any notice from the Complainant and hence question of replying to any notice did not arise.
3. The Complainant filed his own affidavit-in-evidence whereas the OP No. 2 filed the affidavit-in-evidence of Shri. K. G. Sandeep who is the Assistant Service Manager. The contents of the affidavits of both the parties are same as those of the Complaint and the written version, respectively and hence need not be repeated. Both the parties have filed written arguments. Mr. Pansekar, Lr. Counsel for the Complainant and Mr. Karpe, Lr. Counsel for the OP No. 2 also argued orally.
4. We have gone through the entire material on record and considered the submissions made by the Lr. Counsel for the parties.
5. It is not known as to how the OP No. 1 is a necessary party to the present Complaint. In the cause title it is mentioned that the OP No. 1 is the 'Customer Services Head' of Daimer Financial Service India Pvt. Ltd. There is no averment in the Complaint as to how the OP No. 1 is concerned with the Mercedes Benz car purchased by the Complainant from OP No. 2. It is not averred in the Complaint that 5 OP No. 1 is the manufacturer of the said car. Hence, the Complaint is bad for misjoinder of party.
6. In the Complaint, it is stated that there is defect in the AC of the car. In the written arguments, the Complainant has stated that the Complaint has been filed against the OPs for the defects found in the AC system installed in his car. The Complainant has, inter alia, prayed for the replacement of the AC system or in the alternative replacement of the car itself. Neither the AC system was manufactured or installed by OP NO. 2 nor the Car was manufactured by it. The OP No. 2 is only a dealer of Mercedes Benz Cars in Goa. If there is a manufacturing defect in the AC or in the car itself, a manufacturer can be asked to replace the said AC or to replace the car or to refund the consideration paid by the Complainant. The Complainant has not produced any agreement between him and the OP No. 2 for holding it liable/responsible for manufacturing defects or for defects which cannot be cured to the satisfaction of the Complainant or for replacement of the AC system or replacement of the car. The car was purchased in July 2012 and it is not the case of the Complainant that warranty period is still not over. The manufacturer has not been made a party to this Complaint. Even otherwise, the Complainant used the car for almost two and half years after its purchase without any complaint of defect in AC system. Hence, there could be no manufacturing defect in the AC system. The question of replacement of the air conditioning system or replacement of the car is out of question.
7. It is seen from the evidence of both the parties that every time the Complainant approached the OP No. 2 regarding alleged malfunctioning of the AC system, the OP No. 2, every time carried out services to satisfy the Complainant. It is pertinent to note that though the OP No. 2 was not liable to replace compressor or update the software and front SAM, free of cost, admittedly, the OP NO. 2 6 did the same as a matter of goodwill. If the AC system is not to the satisfaction of the Complainant, then OP No. 2 cannot be blamed and the Complainant will have to purchase new AC system for the said car to have cooling effect as desired by him.
8. As rightly contended by the Lr. Counsel for OP No. 2, the Complainant has not explained the term "required cooling" and whether that is the standard cooling. The Complainant has not given the parameters of the standard cooling and required cooling may change as per the requirement of each owner of the car. Even otherwise merely because the Complainant on one side says that there is no required cooling and the OP NO. 2, on the other side, says that there is required cooling in the said car, both by way of affidavits, this Court cannot come to any conclusion in favour of the Complainant he proves his contention by way of some additional evidence like report of expert mechanic or automobile engineer after carrying out inspection of the car and of the AC cooling system. The Complainant has not produced any such evidence. In Revision Petition No. 1652/2006 (Sushila Automobiles Pvt. Ltd., vs. Dr. Birendra Narain Prasad & Ors.), relied upon by the Lr. Counsel for OP No. 2, by order dated 07/05/2010, the Hon'ble National Commission has observed that in order to establish the claim of the total replacement of a new vehicle, the Complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect. It is further observed that merely because the car has been taken to the workshop several times or because the number of letters/complaints had been addressed to various functionaries and authorities of the OP-manufacturing company, it will not by itself amount to manufacturing defect. It is held that opinion of an expert body in such cases would be an essential input. In S.C. Case No. FA/380/2010 (Saini Hyundai vs. Mrs. Uma Puri), also relied upon by the Lr. Counsel for OP No. 2, the 7 State Commission, Kolkata, West Bengal, by order dated 18/3/2011, has held that the onus to prove the defect in the car is on the Complainant. It has been held that in order to prove manufacturing defect, opinion of expert is necessary.
9. In the circumstances above, the Complainant has miserably failed to establish his case. The complainant is therefore not entitled to any reliefs as prayed for by the OP No. 2. In fact, the OP No. 2 has been unnecessarily dragged into the litigation without there being cause of action against it.
10. Hence the following:
ORDER Complaint is dismissed with costs of Rs. 5000/- to be paid to the OP No. 2.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
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